The court below, speaking to the subject of the right of a man to fight in self-defense, among other things, charged as follows : “Now, if an assault is made on him and is not a felonious assault, then before he can slay his assailant and do so in self-defense, the law requires that he retreat, get away if he can do so without subjecting himself to great bodily harm or death. ... In such cases a person is required to withdraw, if he can do so, and retreat as far as is consistent with his own safety. In either case, he can only kill from necessity, but in the one he can have that necessity determined in view of the fact that he had a right to stand his ground; in the other, he must show, as one feature of the necessity, that he has retreated to the wall. That is, if it was not a felonious assault, then he is required to retreat if he can do so in safety, rather than to slay his assailant.” Exception by defendant.
Defendant appropriately contends that while the 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 the present case. Hence, he contends that, even though the court did further instruct on the right of a man to protect his home and family, the instructions to which exception is taken are calculated to mislead the jury to his prejudice. With this contention we agree. S. v. Bryson, 200 N. C., 50, 156 S. E., 143, and cases cited.
Ordinarily, when a person, who is free from fault in bringing on a difficulty, is attacked in his own dwelling or home, the law imposes upon him no duty to retreat before he can justify fighting in self-defense. 26 Am. Jur., 263; Homicide, sec. 155; S. v. Harman, 78 N. C., 515; S. v. Bryson, supra. Compare S. v. Glenn, 198 N. C., 79, 150 S. E., 663.
The principle is expressed in the case of S. v. Harman, supra, in an opinion by Beade, J., in this manner: “If the prisoner stood entirely on the defensive and would not have fought but for the attack, and the *535attack threatened death or great bodily harm, and he killed to save himself, then it was excusable homicide, although the prisoner did not run and flee out of his house. For, being in his own house, he was not obliged to flee, but had the right to repel force with force, and to increase his force, so as not only to resist, but to overcome the assault.”
Again, in S. v. Bryson, supra, Stacy, C. J., speaking to the subject, said: “The defendant being in his own home and acting in defense of himself, his family and his habitation — the deceased having called him from his sleep in the middle of the night — was not required to retreat regardless of the character of the assault. S. v. Glenn, 198 N. C., 79, 150 S. E., 663; S. v. Bost, 192 N. C., 1, 133 S. E., 176. This, however, would not excuse the defendant if he employed excessive force in repelling the attack. S. v. Robinson, 188 N. C., 784, 125 S. E., 617.”
Applying these principles, the doctrine of retreat has no place in the present case. All of the evidence tends to show that the shooting took place in the home of defendant.
As the case goes back for a new trial for cause stated, we deem it unnecessary to discuss other exceptive assignments. The matters to which they relate may not again occur.
Let there be a
New trial.