#### STATE v. L. D. TAYLOR and another.

Assault — Defence of Dwelling — “ Molliter Manus "

Ordinarily the occupant of a tenement must resist the entrance of a trespasser with gentle hands and a request to leave, but if the intruder defiantly stands his ground, armed with a deadly weapon, the occupant may at once resort to physical force ; and it is for the jury to decide whether more force was used than was necessary.

(State v. Davis, SO 2ST. C., 351, cited and approved.)

INDICTMENT for an Affray tried at Pall Term, 1879, of Wake Superior Court, before Avery, J.

The defendant and one Adolphus Williams were indicted for an affray ; both were found guilty, and the defendant, Taylor, moved for a new trial on the ground of misdirection in the charge of the court to the jury. The motion was overruled, and judgment pronounced against both defendants, from which the defendant, Taylor, appealed. The grounds of the exception are sufficiently set out in the opinion.

Attorney General, for the State.

Mr. T. M. Argo, for defendant.

Ashe, J.

The alleged affray occurred in the house of the defendant, and only three witnesses were examined, two for the state and one for defendant.

The court charged the jury that if they believed the testimony of any of the witnesses on behalf of the state or defendant, both defendants were guilty; that according to the .testimony of any witness examined both defendants were guilty. And after the case was submitted to the jury with this charge, they came into court and'asked His Honor to instruct them as to the amount of force that might be *555lawfully used by the defendant Taylor, in order to expel the other defendant from his house. The court told the jury that question did not arise from the testimony, and that it was not made necessary or proper by the testimony of any •witness who had been examined for the court to instruct them upon this point. To this ruling of His Honor the defendant excepted.

If then there was any one witness examined who testified to a state of facts, taken by itself, from which it might reasonably be inferred that the purpose of Taylor in advancing on Williams, the other defendant, whir the whip-staff, was to remove him from his house, that question should have been left to the jury, and then the further question would necessarily arise as to the amount of force the defendant might use to accomplish.his purpose. How then stands the case?

One wdtness, Bryan Smith, testified that the first he saw was Williams at the door of Taylor’s house “cutting or reaching into the door and Taylor came out striking at Williams -with a whip-staff, while Williams was cutting at Taylor with a razor; that Williams walked backwards cutting with his razor some ten or fifteen feet from Taylor’s door, and Taylor continued to advance upon him with his whip-staff.” When a trespasser or unwelcomed visitor 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, that 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 thau is necessary to accomplish that object. But if the intruder defiantly stands his ground, armed with a deadly weapon, the doctrine of molliter manus does not appply, and the owner may at once resort to physical force, and it is a question for the jury to decide whether he used more force than was necessary. State v. Davis, 80 N. C., 351.

*556As Williams was at the door of the defendant’s house, reaching in the door and cutting with a razor and the defendant was striking at him with a staff, we think the jury might have been warranted in coming to the conclusion that it was the purpose of the defendant to expel him from his house as he had the right to do; and then it would have been a material inquiry for the jury whether the defendant had used more force than was necessary. In this view of the case it was proper fqr the jury to ask the court for instructions as to the amount of force that might lawfully be used by the defendant, Taylor, in order to expel Williams from his house, and we are of the opinion it was the duty of the court to give the instructions, and in its failure to do so there was error.

Let this be certified to the superior court of Wake county that a venire de novo may he awarded to the defendant.

Error. . Venire de novo.