#### STATE v. CLARENCE ANDERSON.

(Filed 14 October, 1942.)

1. Homicide §§ 11, 13—

Under the law of self-defense a person not only may take life in bis own defense but also in defense of another, who bears to him the relationship of wife, parent, or child.

3. Homicide §§ 11, 13, 13—

One who, being in his own home, fights in defense of himself, his family, and his habitation, is not required to retreat, regardless of the character of the assault.

*1493. Homicide §§ 13, 27f—

Upon a trial for murder, where defendant, in his own home, killed a man in the act of making a violent assault upon defendant’s wife, an uncorrected instruction thdt, unless the jury found that defendant was acting in his own defense, they must convict, was reversible error.

4. Criminal Law § 53a—

The judge, in his instructions, should not assume that a material fact has been proven beyond a reasonable doubt, in the absence of an admission of such fact.

Appeal by defendant from Harris, J., at April Term, 1942, of Wayne.

New trial.

Criminal action tried on bill of indictment for murder of one Sam Flowers.

Tbe evidence favorable to tbe State is amply sufficient to sustain tbe verdict of guilty of manslaughter returned by tbe jury. However,- tbe testimony is sharply conflicting.

Tbe defendant offered evidence tending to show that preceding tbe homicide tbe sisters of defendant’s wife and others were quarreling and fighting in tbe street and at their aunt’s or father’s bouse. Yiola, defendant’s wife, went over there and tried to quiet them. Not being able to do so she called “tbe law,” but officers did not come. Sam Flowers, tbe deceased, a brother of Yiola, came and walked up to Yiola. Then in her words tbe following happened: “He walked up to me and I said, ‘The Law will be here, you all bad better quiet.’ He struck me, first, right here, and my brother grabbed him. Then be picked up a strip and hauled back against tbe side of my bead, and I goes home, and my husband came after me, and I was crying, telling my husband I was going to put tbe Law on him. He reached up and beat me against tbe corner of my porch; be beat my body with bis fist. I mean Sammie did this. My husband came out of tbe bouse. I don’t know where my husband was when Sammie was beating me in tbe front yard. My husband said, ‘Come in this porch; no one better not bother you any more.’ I said, ‘I am going to put tbe man on you,’ and be started off riding bis wheel going north. He whirled around and came back, and bit me two or three more licks, and be drew back to bit me again, and when be walked up, my husband struck him with tbe brick.”

There was evidence that Yiola was pregnant; that deceased knocked her down and that when be last approached tbe home of defendant tbe defendant warned him not to come.

There was a verdict of guilty of manslaughter. From judgment thereon defendant appealed.

*150 Attorney-General McMullan and Assistant Attorneys-Gsneral Patton and Rhodes for the State.

J. Faison Thomson for defendant, apfellant.

Barnhill, J.

The court instructed the jury that since the defendant admitted “he threw the brick and did it in his own self-defense” they could not acquit unless he had satisfied them that he threw it in his own self-defense.

The instruction, as thus given, assumes that the brick struck deceased and that the wound inflicted caused death. At no time was the jury instructed that they must so find béfore returning a verdict of guilty.

Even though the evidence was uncontradicted its weight and credibility was for the jury. In the absence of an admission the cause should not have been submitted to the jury upon the assumption that a material fact had been fully proven beyond a reasonable doubt. S. v. Howell, 218 N. C., 280, 10 S. E. (2d), 815.

The defendant testified in part: “He came to beat my wife and make more doctor’s bills. If I had known what was going to happen I would have let it gone, and paid it.” Hence, it appears from this and all the other testimony that defendant was not relying upon the right to defend himself but upon his right to defend and protect a member of his family.

Under the law of self-defense a person not only may take life in his own defense but, by virtue of the rule of the common law, he may do so also in defense of another who bears to him the relationship of wife, parent, or child. 13 R. C. L., 836, sec. 139; 26 Am. Jur., 265, sec. 158; S. v. Gray, 1.62 N. C., 608, 77 S. E., 833; S. v. Reynolds, 212 N. C., 37, 192 S. E., 871; S. v. Marshall, 208 N. C., 127, 179 S. E., 427; S. v. Glenn, 198 N. C., 79, 150 S. E., 663.

In so far as the right to take human life is dependent upon the surrounding circumstances, a person acting in defense of his wdfe is in the same situation and upon the same plane as those who act in defense of themselves. The facts which excuse the killing in defense of self like-wdse excuse a killing in defense of a member of the family and the right of the husband to defend his wife is coextensive with the right of the wdfe to defend herself. 13 R. C. L., 837, sec. 140; S. v. Francis, 70 A. L. R., 1133; S. v. Cox, 153 N. C., 638, 69 S. E., 419; S. v. Gaddy, 166 N. C., 341, 81 S. E., 608.

Non constat the defendant relied upon his right to defend his wife and not upon his right to kill in his own necessary defense, the court reiterated the charge that the jury must convict unless they found that defendant was fighting in his own defense — a plea not made, and unsupported by evidence. This charge was not withdrawn, corrected or modified. Thus, the jury withdrew to consider the evidence under instructions to *151return a verdict of guilty upon failure to find tbat tbe defendant threw tbe brick in bis own defense.

It is true tbat at tbe conclusion of tbe charge, at tbe instance of counsel for tbe defendant, tbe court instructed tbe jury tbat a man has tbe right to protect bis wife or property “and use such force in preventing tbe assault made on your wife and to protect as reasonably necessary to do so, and if be did not use more force than reasonably necessary be would not be guilty of a crime.” Tbe charge as given upon tbe right of defendant to protect bis wife is not sufficiently comprehensive. It is not required tbat defendant show tbat it was “reasonably necessary” to kill. It is sufficient if be proves tbat be believed it to be necessary and tbat be bad reasonable grounds for tbe belief — the jury being tbe judges of tbe reasonableness of tbe apprehension. S. v. Bryant, 213 N. C., 752, 197 S. E., 530, and authorities cited. S. v. Reynolds, supra; S. v. Terrell, 212 N. C., 145, 193 S. E., 161; S. v. Marshall, supra.

As tbe evidence favorable to tbe defendant tends to indicate tbat defendant acted in defense of bis wife, instructions as to bis right to defend himself are inapplicable and misleading. S. v. Lee, 193 N. C., 321, 136 S. E., 877. Tbe court should have instructed tbe jury adequately on tbe law of self-defense as it is applicable to the facts in the case. “Tbe correctness of tbe instructions given is determined by tbe rules of law governing tbe right of self-defense as applied to tbe situation developed by tbe evidence.” 26 Am. Jur., 537, sec. 548.

Tbe credibility of tbe evidence is not for us. It may be wholly unworthy of belief. Yet, it is in tbe record and defendant was entitled to have tbe law arising thereon explained and applied by tbe judge. 0. S., 564.

All tbe evidence tends to show tbat defendant and bis wife were in their home at tbe time of tbe alleged assault by deceased. Defendant was under no duty to retreat. One who, being in bis own borne, fights in defense of himself, bis family and bis habitation is not required to retreat, regardless of tbe character of tbe assault. S. v. Glenn, supra; S. v. Bost, 192 N. C., 1, 133 S. E., 176; S. v. Bryson, 200 N. C., 50, 156 S. E., 143; S. v. Roddey, 219 N. C., 532, 14 S. E. (2d), 526.

We are of tbe opinion tbat tbe indicated errors in tbe charge were prejudicial to tbe defendant. He is entitled to a

New trial.