#### STATE v. LUCILLE DeGRAFFENREID.

(Filed 14 October, 1942.)

1. Homicide § 11—

On a plea of self-defense it is only necessary, in order to secure an acquittal, that the accused establish the facts upon which it is predicated to the satisfaction of the jury.

3. Homicide § 37f—

Upon the trial of a woman for murder, where she killed a man who-violently and dangerously attacked her in her own home, after she repeatedly asked and demanded that he leave, a charge, that self-defense rests upon necessity, and cannot avail if there is a reasonable opportunity to-retreat, and if the jury find, beyond a reasonable doubt, that she . . . killed deceased upon a tona fide apprehension of necessity, the verdict would be not guilty, is erroneous and new trial granted.

Appeal from Hams, J., at March Term, 1942, of Lee.

New trial.

The defendant was tried upon a bill of indictment charging her with the murder of one Ollie Moore. Upon defendant’s plea of not guilty, the solicitor announced in open court that the State would not ask a conviction of murder in the first degree, but only of murder in the second degree or manslaughter, as the facts might warrant.

The evidence for the State tended to show that a party was held at the house of the defendant and her husband on the night of the homicide in celebration of the departure of the husband for Ohio.

The deceased came to the party some time after it had been in progress — in fact, about 12:00 o’clock p.m. He took hold of the defendant’s hand in an endeavor to look at her wrist watch, called her “Miss Bitch,” and inquired what time it was. Defendant referred to him as a “big-shot” and told him to get out and go home and find- out what time it was.

During the progress of the party deceased began whispering to one of the guests, Fred McAllister, and defendant demanded that he quit whispering and leave.

The husband, Leon DeGraffenreid, prior to his departure sought to quell the disturbance, and when leaving, requested them all to go home.

Some time after DeGraffenreid had left, some members of the party came back into the house for one purpose or another, a part of them to secure some phonograph records that had been borrowed. Deceased reentered the house and reclined upon the sofa, with his head back and his mouth open as if asleep. The defendant ordered him to leave. He said that he would do so, hut that he did not like something she had previously said. Defendant reiterated her request that he leave the house, and defendant and deceased began cursing. Deceased either threw defendant *114down upon the sofa or she sat down in consequence of being pushed. She then got up and went into the kitchen, returning with both hands behind her and telling deceased that he would leave. Both of them surged towards the door, and some of the State’s witnesses saw defendant with an uplifted knife in the attitude of striking deceased. He immediately cried out that he was cut and went outside the door, whence he was carried to the hospital at Sanford, dying a short time thereafter.

The State’s evidence was to. the effect that defendant had stated that she stabbed deceased with a table knife, which later was found on the mantelpiece, covered with blood. However, just outside the door there was found a butcher knife, covered with blood and dirt.

The defendant’s witnesses testified that deceased was known to be a person of violent disposition, having a record of vicious assaults, and that he had before had altercation with defendant’s husband. He was some twenty-five or thirty pounds heavier than defendant.

The defendant testified in her own behalf substantially as follows :

“Ollie Moore came to the party at my and my husband’s house without any invitation. He had last year, before this, come to our house to a party and cut up rough and broke up the party and caused everybody to leave.

“On October 9th, Ollie Moore came a few minutes before Leon, my husband, left. When he came in he took hold of my arm and raised it like he was trying to look at my wrist watch and said, ‘Hello, Miss Bitch, what time is it?’ I told him he was such a big shot that if he wanted to know what time it was, to go home where he belonged and find out; that we did not want him there. He turned to Freddie McAllister and said, ‘When Leon’s gone we’ll take the house.’ Leon heard him and told them to please behave and not to make any disturbance. In a few minutes he went over and went to whispering with Freddie McAllister, and I again told him to leave and do his whispering elsewhere out in the street or on the railroad. I was afraid of him. He had gone to the hardware store where my husband worked, after breaking up the other party at our house, and my husband had trouble with him then about that. He had the name of having beaten up his aunt, and his sister’s husband and of having had trouble with other people, and had the reputation in the community of being violent and being a very violent man. He was 25 or 30 pounds heavier than I was, and taller, broader and stronger. He had been drinking and was fussy that night, October 9th, when he came. There was being served no whiskey at the party, and I do not think he drank any after he came.

“When we went out to see Leon off, everybody went out, and my husband told these boys not to give any trouble, and he asked everybody to leave and told them good-bye. I went back in the house and Iredell *115Buie went with, me to get some records of Iredell Buie’s we bad been playing, so she could carry them borne, and some of tbe people followed us back in. Tbe party was over when Leon left.

“While I was getting these records I saw Ollie Moore bad come back in. He was sprawled over on tbe davenport, with bis bead on one arm of it, and one leg over tbe other, and one foot on-the floor. His eyes were shut and bis mouth open. When I saw him I ordered him to get up and leave tbe bouse, and told him be could not be sleeping or doing that way at my bouse with my husband gone. When I spoke to him he straightened up and leaned back against tbe back and shut bis eyes. I again ordered him to get up and leave. I went up in front of him this time. When I told him tbe second time that be could not be sleeping there and to go, be said be would leave, but that I bad said something* before be did not like. I ordered him again to leave. He grabbed me by tbe arms and shoved me down on tbe davenport and said be would leave when be damned pleased and called me ‘Miss Bitch.’ I called him another and told him to leave tbe bouse. When I got up from tbe davenport, tbe kitchen door was open and I noticed tbe door of tbe electric refrigerator bad been left open by someone. I went in and closed that and came out and be was still there, standing about tbe middle of tbe floor. I told him if be did not leave I would send for Policeman McLeod. He said, ‘Damn tbe law,’ and I went over and turned tbe front door knob and began opening tbe door and told him, ‘Get to bell out of here.’ When I did, be jerked me so bard it slammed tbe door back closed, and everybody but us began running out of tbe back door.

“I called for help, but no one helped me. He pushed me back against tbe wall to tbe east of tbe front door so my back was against it, and I was half on and against a little iron table which was a few feet to tbe east of it against tbe wall. He bad me partly on this table and bad me by tbe throat with bis left band and struck at me with a knife. I threw my left band up and be cut me between tbe thumb and first finger through tbe web joining them, and down in tbe palm of tbe band. Tbe scar is there now.

“He bad me up against tbe wall and against tbe table and one of bis legs was between mine and was forcing me back on tbe table and against tbe wall. When be cut me I called for help but no one helped me. While be bad me against tbe wall and table, I picked up a butcher knife on this table where I bad been using it in opening sardines in fixing* sandwiches for my husband to take with him. Tbe table tilted up and slipped from under me and I was standing up, stabbing tbe knife toward him to keep him off of me and telling him to stand back and not come on me.

*116“I did not intend to kill him, but only to make him stand back and stay off me, and to turn me loose and quit fighting me and let me alone. I told him to stand back and he came on, kept on coming, and pushed me against the wall again and by the force of his lunge toward me at this time he caused the knife to go into his body. Except for what he did himself, and the force he used, he would not have been seriously injured or killed. I did not strike at him hard enough to go into his body. He called out I had cut him, and he went out the front door and came back in before he bled any. Some of the boys got him in an automobile and carried him off.”

Other parts of the evidence are not essential to an understanding of this decision.

Upon this evidence and relating to the matter of self-defense, the court charged the jury as follows :

“The principle of self-defense rests upon necessity, real or apparent, and cannot avail if there is a reasonable opportunity to retreat and avoid the difficulty; but if the assault in which the killing is brought about be violent and the circumstances are such that retreat would be dangerous, he is not required to retreat.”

Elsewhere in his charge, the following instruction was given to the jury :

“If the deceased assaulted the prisoner in her own home and cut her with a knife and otherwise suddenly and violently assaulted her when he was requested to leave and the prisoner was without fault in bringing on the difficulty, the Court charges you that she did not have to retreat but she had the right to stand her ground and oppose force with force and to do whatever seemed to her at the time reasonably necessary to protect herself from the assault being made on her. And if at the time deceased was killed she had reasonable grounds to believe and did believe that she was in danger of losing her life or suffering great bodily harm as the result of an unlawful assault by deceased, she had the right if necessary, or if it at said time reasonably appeared to be necessary, to take the life of the deceased, and if you find beyond a reasonable doubt that she intentionally killed the deceased in such reasonable bona fide apprehension, that the same was necessary to protect her life or her person from great bodily harm, your verdict would be ‘not guilty.’ ”

The jury found defendant guilty of manslaughter and judgment thereupon was rendered, sentencing the defendant to not less than ten years, nor more than twenty years in State’s Prison.

The defendant appealed, assigning errors.

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

K. R. Hoyle for defendant, appellant.

*117Seawell, J.

Counsel for tbe defendant argues bere tbat tbe instructions given to tbe jury, as quoted above, do not fairly present to tbe jury tbe full right of self-defense wbicb might be her due on certain phases of tbe evidence, particularly with regard to-the necessity of retreating from an assault made upon her in her own bouse.

However much tbe evidence contra may preponderate, any phase of tbe evidence supporting tbe plea of self-defense demands tbat tbe instruction addressed thereto must apply tbe law to'tbe facts wbicb such evidence tends to show. S. v. Anderson, post, 148. There is, of course, no general rule or formula of expression wbicb will apply tbe law of self-defense to every case. In tbe instant case, defendant complains tbat tbe jury might be confused with conflicting instructions and be unable to decide whether, under tbe law, it was tbe duty of tbe defendant to retreat from tbe assault made upon her before killing in self-defense or whether she might stand her ground, under tbe evidence wbicb she herself advances tbat she was tbe victim of an unprovoked assault in her own home.

In tbe first place, it is pointed out tbat there was no necessity for presenting an inapplicable rule, designated by tbe State as a general rule^ — one wbicb would require her to retreat under such conditions; and if tbe second instruction could be, for argument’s sake, conceded to be correct, tbe jury would be still left in doubt as to wbicb instruction they should follow.

We think, however, tbat there is an inadvertent statement, of a more serious nature, in tbe instruction wbicb tbe State regards as curative, wbicb would deny it tbat office. In this instruction tbe court would deprive tbe plea of self-defense of any effectiveness, unless proved to tbe jury beyond a reasonable doubt. In order to secure an acquittal on a plea of self-defense, it is only necessary tbat tbe accused establish tbe facts upon wbicb it is predicated to tbe satisfaction of tbe jury. S. v. Beachum, 220 N. C., 531, 17 S. E. (2d), 674; S. v. Fuller, 114 N. C., 885, 19 S. E., 797.

In principle this case seems to be substantially on all fours with S. v. Boddey, 219 N. C., 532, 14 S. E. (2d), 526, from wbicb we quote:

> “Defendant appropriately contends tbat while tbe doctrine of retreat enunciated in these instructions may be correctly applied to different factual situations, it does not apply to a controversy in a man’s home, as in tbe present case. Hence, be contends tbat, even though tbe court did further instruct on tbe right of a man to protect bis home and family, tbe instructions to wbicb exception is taken are calculated to mislead tbe jury to bis prejudice. With this contention we agree.”

For tbe reasons stated, tbe defendant is granted a

New trial.