#### STATE v. HORT ABSHER.

(Filed 8 October, 1941.)

Homicide §§ 11, 37f — Evidence held to requii’e instruction on right oí self-defense when defendant is assaulted where he has a right to he.

Defendant’s evidence was to the effect that he and his wife and son went to live in the household of his father-in-law until defendant should be able to get a job, his father-in-law having- given permission; that after a stay of several weeks he got into an argument with his mother-in-law, who sent for two of her sons, that in the controversy which ensued defendant stated he didn’t want any trouble and would leave in five minutes; that before his wife could get his clothes his brothers-in-law assaulted him; and that in the ensuing fight he killed one of them. Held,: Defendant was entitled to have the court charge the jury on his evidence upon his right of self-defense in case of assault while he was in a place where he had a right to be, and a charge limiting the jury solely to the theory that eo instanti defendant was ordered to leave he became a trespasser and had no right to resist the force used in ejecting him, is erroneous.

Appeal by defendant from Phillips, J., at March Term, 1941, of Wilkes.

New trial.

Tbe defendant was tried upon a charge of murder at March Term, 1941, of Wilkes Superior Court, and was convicted of murder in tbe second degree and sentenced to tbe State Prison for not less than ten nor more than fifteen years. That portion of tbe evidence pertinent to this decision may be summarized as follows :

Tbe defendant was living with bis wife, who was a daughter of Zack Lankford, at tbe latter’s home. Tbe evidence tends to show that Lank-ford told him be might come there and stay until be got a job and that bis wife, Maude, could wait on her mother and be a help to her. Absher promised not to drink or give trouble and to make bis children mind. There were several other members of tbe Lankford household, including Lon Lankford, Sam Lankford, Bryce Lankford, and tbe deceased, Leonard Lankford, all sons of Zack Lankford and brothers-in-law of tbe defendant.

On tbe day of tbe homicide, according to tbe testimony of Mrs. Zack Lankford, Leonard, tbe deceased, came in and was eating supper, and tbe defendant came in and called Leonard out somewhere and talked *127with him. She further testified that Absher came in and started an argument with her youngest boy, Don. She then ordered him out, whereupon he told her that he was “going to get your little son, Brycie,” a child about fifteen or sixteen years old; that defendant had a grudge against Brycie because the latter was “fast-spoken.” Mrs. Lankford then struck him about three licks with a little whip she kept “to whip the young-uns with,” and told him to leave, and he backed off to the kitchen door and went into the kitchen. Lon Lankford and Sam Lank-ford heard the controversy, came in and said, “Hort, you get out of here. I don’t want this around my mother.” The defendant replied, “Do you own this damn little joint around here?” to which Don said, “Yes, when I am at it I own it.” Defendant then said, “Damn you, you make me get out,” and Lon said, “Well, I can make you get out.” Upon this, Lon and Sam went to take hold of defendant and put him out, and, according to this witness’ testimony, the defendant “gave a lick back that way, and socked that knife in that young-un’s throat and broke the blade off in his throat, and he cut Lonz in the arm, and him not trying to do a thing with him.” She further testified, “The defendant and his wife had been living in my home going on three weeks. They asked my husband — Hort asked my husband to let him come. He let him come. They were just to stay until he could get a place to go to.” The other ‘witnesses for the State substantially corroborated the testimony of Mrs. Lankford.

Lon Lankford testified in part that he and Leonard, the deceased, were just trying to push the defendant out of the house when he felt his own arm cut and saw the defendant strike back at Leonard. After he was out, this witness stated, he struck defendant across the back with a chair because he saw that he was coming back to him, and after he had been cut he had tried to hit him with a chair in the house but could not. He testified that Absher “did not look like he was drinking much. He might have had a drink.”

Hort Absher, the defendant, testified that he came to the house with his wife and little boy, went to the kitchen to get a drink of water, walked out and talked to Leonard Lankford, deceased, that he had no trouble with him at all, and that when he walked in the house Leonard walked in front of him, went out of the house to the woodpile, got some wood and brought it in, and went out in the direction of the barn. That Sam Lankford and Lon Lankford pretty soon went out of the house toward the barn. That defendant and Mrs. Lankford got into an argument over Brycie’s gun barrel, which defendant had hidden. Defendant testified that the boy said he would shoot his father. He refused to tell where the gun barrel was hidden, and Mrs. Lankford began to beat him over the head with a strap fastened to a stick, used profanity and *128obscenity toward him, and said sbe would kill him if' sbe bad tbe strength; and then sent a little girl to tbe barn, saying, “Tell Lon and Leonard to come in there and kill tbe s. o. b.” Lon and Leonard came into tbe bouse, where a controversy ensued about tbe argument with Mrs. Lankford. Defendant said, “Boys, I am fixing to leave here and I don’t want no trouble. I will be gone in five minutes.” His wife was fixing bis clothes so that be might go to Mount Airy and get a job. Tbe following is a copy from tbe transcript of defendant’s testimony at this point:

“Before sbe got my clothes ready they jumped on me and Lon jumped on me with tbe chair, bit me in tbe bead with it, and Leonard Lankford come on me with bis fist, and I staggered back to tbe kitchen door when Lon bit me with tbe chair, tbe ceiling was so low be couldn’t bring tbe chair over bis bead, be brought it sideways and knocked me back into tbe door and Leonard come in and bit me in tbe face with bis fist. Well, I shoved him backward and I struck at Lon with my fist and missed him, and shoved him back into tbe table, and be come around with tbe chair again and bit me, and shoved Leonard back again and somewhere there was a knife laying on tbe table. I don’t say that tbe boy got tbe knife. He was making for tbe knife — Leonard Lankford. Well, I come out with my knife. They told me they were going to kill me. I got my knife out of my right front pocket and used it in my right band. I* struck at Lon Lankford with my knife, and be bit me with tbe chair, and my knife went over and bit Leonard Lankford. I didn’t at any time strike Leonard Lankford with my knife.

“Lonz struck at me again with tbe chair and I struck at him and cut him across tbe arm, and tbe next time be struck at me with tbe chair I struck at him with tbe knife, and tbe knife blade struck tbe chair and broke off and bit tbe floor.

“I got my knife out because they beat me with tbe chair and said they were going to kill me three or four different times. They told me they were going to kill me and beat me with a home-made chair like that over tbe bead, and I expect that was a good idea toward killing a man.

“After tbe blade was broken — my wife bad gotten there by that time, and they got me out at tbe back door of tbe porch into tbe bouse and off in tbe yard, and about tbe time I bit tbe yard I was knocked down with a chair. Lonz Lankford did that, and by that time my wife got bold of me — I don’t know that be struck at me or her, but anyhow be knocked both of us down with a chair. Sbe come in on top of me, and sbe got up and started to leave with me, and be told her, ‘Turn him loose,’ Lonz Lankford said, ‘Turn him loose,’ says, ‘I will finish billing tbe G . . d . . . s. o. b.’ So we went on around tbe bouse, me and my wife, and Lonz Lankford — and when we got around tbe bouse Lonz *129Lankford beat me with a ¿hair until we got in the front yard, knocked me down three or four times in the front yard out there, and my wife once or twice — I won’t say whether it was once or twice.

“I had five holes knocked in the back of my head. My wounds were bleeding, and I was bloody all over. My shirt (I had on a coat) and coat was torn to pieces, and I had a cut place or two in my coat. I have the coat right here to show for myself, and this Arl Lankford, he come up about that time. He had a bone-handled knife about that long, and he beat me in the head with it, and Sam Lankford was talking to him, begging him not to hurt me, and he said he was going to cut the Gr.. d... s. o. b.’s head off. I begged them to leave me alone.

“I says, ‘You, boys going to kill me, or what are you going to do?’ They followed me as far as from here to below — as far as from here to Dr. Mitchell’s down here from the house, beating me.”

Defendant further testified: “My father-in-law asked me to move there to the house; I didn’t rent it from anybody, it was not rented, but he asked me to move there and take care of his wife, let my wife wait on his wife while she was in a weakly condition. I didn’t intend to stay there so very long; I aimed to stay there two or three months; no, not until I could get a job. I was not paying any rent or board; I hoped Mr. Lankford in his field. I helped around the field there and she helped in the house.” There is much other evidence which it is unnecessary to print as it does not directly bear upon the point of the decision.

Inter alia, the judge charged the jury as follows :

“Now, gentlemen of the jury, there has been something said in the argument in this case about the defendant being at his home at the time this difficulty ensued. The court charges you, gentlemen of the jury, if you believe the evidence in this case and find it to be true beyond a reasonable doubt, the house of Zack Lankford was not the home of the defendant but was the home of Zack Lankford and the members of his family that were living there and residing at the time. The court charges you that the defendant was an invited visitor in this home and could be expelled at any time at the will of the owner. He and his family were temporary visitors, that is the defendant and his family were temporary visitors in this home until the defendant could get a job and move his family.

“The court further charges you that if you find from the evidence and beyond a reasonable doubt in this case that Zack Lankford was away from home and his wife told the defendant to leave the place or to leave the premises and that he refused to leave, then the defendant became a trespasser in the home and the wife and other members of the home had the right to use such force as was reasonably necessary to *130evict bim from tbe premises. . . . Gentlemen of tbe jury, if you believe tbe evidence in tbis case, tbat is tbe evidence of tbe defendant and tbe State, tbat tbe defendant and bis wife and family were making tbeir borne there temporarily in tbe borne of Zack Lankford; tbat tbey were invited guests in tbe borne and were there with tbe 'permission and consent of tbe owner, then at all times tbe owners of tbe premises bad tbe right to control tbe premises and if you find from tbe evidence in tbis case and beyond a reasonable doubt tbat tbe owner, tbat is Zack Lankford, tbe bead of tbe bouse, was away from home and that his wife, tbe wife of Zack Lankford who was there in charge of tbe premises in bis absence' — she being bis wife and living there — tbat she bad tbe right, if she saw fit, to order tbe defendant away from there and if be refused to go be then became a trespasser in tbe eyes of tbe law, and to evict bim from tbe premises she and tbe other members of her family bad tbe right to use tbat force tbat was reasonably necessary to evict bim from tbe premises and to get bim off of tbe premises, and tbe court charges you, gentlemen of tbe jury, tbat if be was a trespasser be bad no right to repel tbis force but it was bis duty to leave when told to do so if be was told to do so.”

Attorney-General McMullan and Assistant Atkorneys-General Bruton and Patton for the State.

Trivette & Eolshouser for defendant, appellant.

Seawell, J.

In tbe opinion of tbe Court, tbe instructions to tbe jury are objectionable in tbat tbey do not present to tbe jury tbe true status of tbe defendant as an inmate of tbe Lankford household and entitled to a reasonable consideration of bis rights as an occupant thereof. There is no question tbat be might have been ejected upon reasonable notice; but tbat be should be reduced to tbe status of a trespasser eo instanti tbat be was ordered out by Mrs. Lankford or other inmates of tbe household, is altogether inconsistent with any status which could arise under tbe evidence relating to tbe manner, conditions and terms under which be came into tbe household, and in our opinion did not justify tbe summary and forcible ejectment which it is admitted was undertaken.

Tbis instruction necessarily placed tbe defendant in tbe wrong ah initio and. materially altered, to his prejudice, tbe right of self-defense based upon bis version of tbe affair and tbe rules of law applicable thereto. Tbe instructions given were based upon tbe view tbat be was such a trespasser as might be instantly ejected by either Mrs. Lankford or any other member of her family who lived there, and who bad no right to resist tbe force used in such an ejectment, and tbat such force was peacefully used solely toward tbat end.

*131"Whether the version of the defendant is true or not, it is in the evidence and cannot be ignored by the court. It demanded, at least as an alternative statement of the law, arising upon this phase of the evidence, that the court should- have given the ordinary instructions with regard to the right of self-defense in case of assault where a person has the right to be. S. v. Greer, 218 N. C., 660, 666, 12 S. E. (2d), 238; S. v. Finch, 177 N. C., 599, 600, 99 S. E., 409.

For error in this respect, the defendant is entitled to a

New trial.