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OUJI-CR 8-2

DEFENSE OF ANOTHER - JUSTIFIABLE USE OF DEADLY FORCE

A person is justified in using deadly force in defense of his/her husband/wife/ parent/child/master/mistress/servant if that person reasonably believed that use of deadly force was necessary to protect his/her husband/wife/parent/child/master/ mistress/servant from imminent danger of death or great bodily harm. Defense of another is a defense although the danger to the life or personal security of his/her husband/wife/parent/child/master/mistress/serv ant may not have been real, if a reasonable person, in the circumstances and from the viewpoint of the defendant, would reasonably have believed that his/her husband/wife/parent/child/master/ mistress/servant was in imminent danger of death or great bodily harm.

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Statutory Authority: 21 O.S. 1991, § 733(2).

Notes on Use

This instruction is appropriate where the defendant reasonably believed that use of deadly force was necessary to protect specific persons from imminent danger of death or great bodily harm. If the defendant used reasonable force to prevent a crime in which personal injury to others than the specific persons listed in this instruction was imminent, the court should give OUJI-CR 8-3, infra. OUJI-CR 8-15, infra, should be used if the defendant reasonably believed that the victim might use physical force against an occupant of a dwelling and OUJI-CR 8-14, infra, should be used if the defendant reasonably believed that the victim was attempting to commit a felony in a dwelling where the defendant was lawfully present.

Committee Comments

Since section 733(2) also deals with self-defense, cases that have interpreted the language of the subsection in self-defense cases should be authoritative as to the meaning of the statutory language when defense of another is the defense urged. It must be emphasized that the existence of this defense, defense of another, is dependent upon whether that other would be permitted, under the circumstances, to defend himself. The general rule that an individual who intervenes to abort a difficulty among others stands in the place of the person whom he defends, and must accept all responsibilities and liabilities of the person whom he aids by his intervention, obtains under section 733. Therefore, whether the defendant's conduct is justifiable is dependent upon whether the person defended would be innocent or guilty had he exerted the same degree of force in the same manner in his own defense. Hendrick v. State, 63 Okl. Cr. 100, 73 P.2d 184 (1937); Hare v. State, 58 Okl. Cr. 420, 54 P.2d 670 (1936); Moore v. State, 25 Okl. Cr. 151, 219 P. 175 (1923).

Use of deadly force in defense of another is limited to instances in which the other person is in imminent danger of death or great bodily harm, even though the statutory language would seem to indicate that deadly force could be used to protect another from "a felony" - any felony. The language "a felony" is limited to those that involve imminent danger of death or great bodily harm to the other person. See Garrett v. State, 586 P.2d 754 (Okl. Cr. 1978) (justifiable homicide not warranted where defendant shot deceased and three others to prevent continued statutory rape of her foster daughter; the daughter was not in imminent danger and defendant had previous knowledge of the relationship); Mammano v. State, 333 P.2d 602 (Okl. Cr. 1958) (limiting "a felony" language to include only those felonies that involve imminent danger of death or great bodily harm for purposes of defense of self-defense).

Numerous cases have held that, when acting in defense of another, the danger need not be actual so long as the defendant reasonably believes the danger to exist and to be imminent. Moreover, these cases also hold that the circumstances are to be considered from the viewpoint of the defendant. E.g., Hendrick v. State, 63 Okl. Cr. 100, 73 P.2d 184 (1937); Litchfield v. State, 8 Okl. Cr. 164, 126 P. 707 (1912); Clemmons v. State, 8 Okl. Cr. 159. 126 P. 704 (1912).

The statutory language also limits the instances in which use of deadly force in defense of another is justifiable to specific, named persons. The Court of Criminal Appeals has refused to extend the justification beyond the statutory language. Cowles v. State, 636 P.2d 342, 345 (Okl. Cr. 1981) (defendant's companion was not within the limited group of persons for whom fatal force in their defense is justifiable); Haines v. State, 275 P.2d 347 (Okl. Cr. 1954) (homicide in defense of mistress/paramour not justifiable; mistress in statute means female counterpart of master); Chapman v. State, 84 Okl. Cr. 41, 178 P.2d 638 (1947) (alleged common law husband). But see Whitechurch v. State, 657 P.2d 654 (Okl. Cr. 1983) (construing 22 O.S.1991 § 33). In McDaniel v. State, 8 Okl. Cr. 209, 127 P. 358 (1912), however, the court approved instructions which extended justifiable use of deadly force in defense of another to defense of a brother. The instructions apparently were not challenged by the State, and, if error in the instructions did exist, the error was favorable to the defendant. Hence, the precise question of who can be defended by use of deadly force was not answered by the McDaniel case. See also Territory v. Gatliff, 2 Okl. 523, 37 P. 809 (1894). In light of the statutory language and its construction in Cowles, Haines, and Chapman, however, the Commission has decided to draft the instruction to permit the defense of another only in relation to the persons listed by the statute. (See also the instructions on self-defense, OUJI-CR 8-45 through OUJI-CR 8-56, and excusable homicide, OUJI-CR 8-27 through OUJI-CR 8-30.)


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