OUJI-CR 8-11

DEFENSE OF ANOTHER - TRESPASSER DEFINED

A person is a trespasser if that person has ([entered without consent]/[is unlawfully] upon the land of another)/(refused to leave the land of another after a lawful request to leave has been made to him/her).

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Committee Comments

The instructions pertaining to defense of trespassers state existing law. It is settled in Oklahoma that an individual may resist a trespass upon real property in his possession, and may eject the trespasser by use of any reasonable force. So long as the trespasser does not commit or attempt a felony, force is reasonable only where it does not take or endanger human life. If no felony is committed or attempted, but the individual is unable to prevent or terminate the trespass by means short of life-endangering force, the Court of Criminal Appeals has firmly declared that the individual "must suffer the trespass and seek redress at the hands of the law rather than commit homicide." Jackson v. State, 49 Okl. Cr. 337, 293 P. 567, 568 (1930). See also Turpen v. State, 89 Okl. Cr. 6, 204 P.2d 298 (1949); Hovis v. State, 83 Okl. Cr. 299, 176 P.2d 833 (1947); Grindstaff v. State, 82 Okl. Cr. 31, 165 P.2d 846 (1946); Hendrick v. State, 63 Okl. Cr. 100, 73 P.2d 184 (1937); Dyer v. State, 58 Okl. Cr. 345, 53 P.2d 700 (1936); Choate v. State, 37 Okl. Cr. 314, 258 P. 360 (1927); Thomason v. State, 17 Okl. Cr. 666, 191 P. 1096 (1920); Marshall v. State, 11 Okl. Cr. 52, 142 P. 1046 (1914); Dickinson v. State, 3 Okl. Cr. 151, 104 P. 923 (1909).

However, the court has squarely held that, when faced by an imminent threat of bodily harm or death arising from an unlawful attack, the trespasser's right of self-defense is circumscribed by the requirement that he will avail himself of any reasonable means of retreat before responding to the attack. As stated by the court in Womack v. State, 36 Okl. Cr. 44, 253 P. 1027 (1927):

[T]he trespasser's right of self-defense does not arise until he has availed himself of every safe means of retreat. But, even a trespasser, under such circumstances, where means of retreat are impracticable, has a right within reasonable bounds to repel an apparent dangerous attack in his necessary self-defense.

Id. at 47, 253 P. at 1029. See also Walston v. State, 597 P.2d 768, 770-71 (Okl. Cr. 1979); Thompson v. State, 462 P.2d 299 (Okl. Cr. 1969).

Since the availability of the intervenor's claim of defense of another is derivative, the intervenor who defends a person who is, in fact, a trespasser does so at his own risk. The defendant who claims the defense of defense of another is entitled to avail himself of this defense only if the person aided would have been entitled to the defense of self-defense, and this general rule obtains where the person defended is a trespasser. See Hendrick v. State, supra. (For a more detailed discussion of the two trespasser instructions, see the Committee Comments accompanying the self-defense instructions following OUJI-CR 8-55.)

These two trespasser instructions are to be given only when a factual dispute exists as to whether or not the person defended was a trespasser, or, if a trespasser, whether or not the person defended availed himself of every reasonable means of retreat. This factual dispute is appropriately to be resolved by the jury under proper instructions.