{
  "id": 8520393,
  "name": "STATE OF NORTH CAROLINA v. WILLIE JAMES MYERS",
  "name_abbreviation": "State v. Myers",
  "decision_date": "1980-10-07",
  "docket_number": "No. 805SC418",
  "first_page": "197",
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    "id": 14983,
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    "name": "N.C."
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  "analysis": {
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    "char_count": 5958,
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  "last_updated": "2023-07-14T18:45:37.060516+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Arnold and Wells concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. WILLIE JAMES MYERS"
    ],
    "opinions": [
      {
        "text": "ERWIN, Judge.\nState\u2019s Evidence\nAt trial, a tape-recorded statement made by defendant to a law enforcement officer was introduced into evidence, which tended to show that defendant\u2019s stepson, Wilbert Clinton, was at defendant\u2019s home when an argument ensued between defendant and Clinton, because Clinton had not visited his mother while she was hospitalized. Defendant accused Clinton of being \u201cno good\u201d and slapped him. Clinton slapped defendant. Defendant asked Clinton several times to get out of the house. Clinton did not leave but simply stood or \u201cdragged\u201d around the house. Prior to the argument, Clinton had asked Annie Ruth, Clinton\u2019s fiancee, to hand him his gun; however, defendant did not believe that Clinton had a gun or was not \u201cdefinite [sic] sure that he had a gun or not.\u201d Defendant stood up, went to his bedroom, got his pistol, fired a warning shot in the floor, and told Clinton to get out. Then he shot Clinton one time. Clinton\u2019s testimony of the events was substantially similar to defendant\u2019s statement except Clinton testified that he and defendant were talking, not arguing. Clinton did not testify about asking Annie Ruth for a gun. Clinton was shot in the head and was temporarily paralyzed in his right arm and legs.\nDefendant\u2019s Evidence\nDefendant testified that he had invited Clinton into his house; that he questioned him about not seeing his mother; that he slapped Clinton, and Clinton slapped him back; that he told Clinton to get out of his house; that he got his gun to try to make Clinton leave, because he was sick and was not man enough to throw Clinton out; that he did not know why the gun went off the second time; and that he just wanted Clinton to leave, but did not intend to hurt him.\nQuestion Presented\nDid the trial court commit error in failing to charge the j ury of defendant\u2019s right to evict the prosecuting witness from defendant\u2019s home and in failing to define the force that could have been used to accomplish such eviction? For the following stated reasons, we find no error in the trial of defendant.\nDefendant relies on State v. Spruill, 225 N.C. 356, 358, 34 S.E. 2d 142, 143 (1945), wherein our Supreme Court stated:\n\u201cHence, when in the trial of a criminal action charging an assault, or other kindred crime, there is evidence from which it may be inferred as in this case that the force used by defendant was in defending his home from attack by another, he is entitled to have evidence considered in the light of applicable principles of law. In such event, and to that end, it becomes the duty of the court to declare and explain the law arising thereon, G.S., 1-180, formerly C.S., 564, and failure of the court to so instruct the jury on such substantive feature, as in this case, is prejudicial. This is true even though there be no special prayer for instruction to that effect.\u201d (Citations omitted.)\nOur research leads us to State v. McCombs, 297 N.C. 151, 157, 253 S.E. 2d 906, 911 (1979), where Justice Branch (now Chief Justice) stated for the Court:\n\u201cLikewise, when a trespasser invades the premises of another, the latter has the right to remove him, and the law requires that he should first request him to leave, and if he does not do so, he should lay his hands gently upon him, and if he resists, he may use sufficient force to remove him, taking care, however, to use no more force than is necessary to accomplish that object. State v. Crook, 133 N.C. 672, 45 S.E. 564 (1903); State v. Taylor, 82 N.C. 554 (1880).\u201d\nIn the case sub judice, defendant did not present any evidence of a \u201cgentle laying of hands\u201d upon the victim, Clinton, prior to the shooting, nor was there any evidence that Clinton ever threatened or used deadly physical force upon defendant. Defendant testified:\n\u201cSo he said, \u2018Annie Ruth, hand me my gun,\u2019 You know, that was before we started arguing, you know. So I said I don\u2019t believe he got no gun. I reckon, because the way it looked like to me, she didn\u2019t have no pocketbook, so I didn\u2019t definite [sic] sure that he had a gun or not. So, when I stood up and went in my room and came out I shot the floor one time and told him to get out, and he didn\u2019t run. He just dragged around, you know, just like a guy drag around, he wasn\u2019t in no hurry, so I shot the first time, and the next time I point at him. I must have shot him, and that was it.\u201d\nThe presence of evidence is the determinative factor of the instructions that the trial court should give. Here, the evidence did not require or suggest that the instruction complained of should have been given by the court.\nIn the trial of defendant, we find\nNo error.\nJudges Arnold and Wells concur.",
        "type": "majority",
        "author": "ERWIN, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Assistant Attorney General David Roy Blackwell, for the State.",
      "Addison Hewlett, Jr., for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. WILLIE JAMES MYERS\nNo. 805SC418\n(Filed 7 October 1980)\nAssault and Battery \u00a7 15.7- right to evict person from one\u2019s home -force permissible - instructions not required\nIn a prosecution for assault with a deadly weapon with intent to kill inflicting serious injury, the trial court did not err in failing to charge the jury on defendant\u2019s right to evict the prosecuting witness from defendant\u2019s home and in failing to define the force which could have been used to accomplish such eviction, since defendant did not present any evidence that he tried to remove the victim by a \u201cgentle laying on of hands\u201d prior to the shooting, nor was there any evidence that the victim ever threatened or used deadly physical force upon defendant.\nAppeal by defendant from Bruce, Judge. Judgment entered 15 October 1979 in Superior Court, New HanoveR County. Heard in the Court of Appeals 18 September 1980.\nDefendant was indicted for assault with a deadly weapon with intent to kill inflicting serious injury and was convicted of assault with a deadly weapon inflicting serious injury. From a sentence of active imprisonment of five years, defendant appealed.\nAttorney General Edmisten, by Assistant Attorney General David Roy Blackwell, for the State.\nAddison Hewlett, Jr., for defendant appellant."
  },
  "file_name": "0197-01",
  "first_page_order": 225,
  "last_page_order": 228
}
