DEFENSE OF PROPERTY - JUSTIFIABLE USE
OF DEADLY FORCE IN DEFENSE OF HABITATION
A person is justified in using deadly force when resisting any attempt by another to commit a felony upon or in any dwelling house in which that person is lawfully present. Defense of habitation is a defense although the danger that a felony would be committed upon or in the dwelling house may not have been real, if a reasonable person, in the circumstances and from the viewpoint of the defendant, would reasonably have believed that there was an imminent danger that such felony would occur.
Statutory Authority: 21 O.S. 1991, § 733(1).
At common law, the precept that a person's habitation constituted his "castle" gave rise to a privilege to defend his dwelling from felonious attempts, even to the point of exercising deadly force. R. Perkins, Criminal Law 1022 (2d ed. 1969). This right of defense on behalf of property which constitutes a dwelling, codified at 21 O.S. 1991, § 733(1), must be distinguished from the far more restricted right of defense of other property, codified at 21 O.S. 1991, § 643(3), which permits only use of nondeadly force.
The Court of Criminal Appeals has consistently interpreted this provision of section 733(1) as extending the right to use deadly force in defense of one's habitation only where the person defending has reason to fear that one who entered unlawfully, a trespasser, intended to perpetrate a felony therein, or to inflict harm upon him or some other person. The position espoused by the court with respect to defense of one's domicile may be summarized as follows:
A person may resist a trespass on real property in his possession, where such trespass does not amount to a felony, and may eject the trespasser therefrom by the use of any reasonable force short of taking or endangering human life; but if he is unable to prevent a trespass, where no felony is attempted, by any means short of taking or endangering human life, he must suffer the trespass and seek redress at the hands of the law rather than commit homicide.
Jackson v. State, 49 Okl. Cr. 337, 339, 293 P. 567, 568 (1930). Accord, 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); Hare v. State, 58 Okl. Cr. 420, 54 P.2d 670 (1936); Schmitt v. State, 57 Okl. Cr. 102, 47 P.2d 199 (1935); Choate v. State, 37 Okl. Cr. 314, 258 P. 361 (1927); Armstrong v. State, 11 Okl. Cr. 959, 143 P. 870 (1914); Marshall v. State, 11 Okl. Cr. 52, 142 P. 1046 (1914); Collegenia v. State, 9 Okl. Cr. 425, 132 P. 375 (1913).
Use of the statutory term "dwelling house" would seem to preclude use of deadly force in defense of one's place of business. Although the Court of Criminal Appeals has not considered this issue, claims of appropriate use of deadly force to defend one's business establishment were rejected on other grounds in two cases, in which the court did not isolate this fact as a further ground for the infirmity of the claim. Hovis, supra; Jackson, supra.
Justifiable use of deadly force under 21 O.S. 1991, § 733(1), is further discussed in the Committee Comments under self-defense, OUJI-CR 8-46.