DEFENSE OF ANOTHER - JUSTIFIABLE USE
OF NONDEADLY FORCE
A person is justified in using force in defense of another if that person reasonably believed that use of force was necessary to protect another from imminent danger of bodily harm. Defense of another is a defense although the danger to the personal security of another may not have been real, if a reasonable person, in the circumstances and from the viewpoint of the defendant, would reasonably have believed that another was in imminent danger of bodily harm. The amount of force used may not exceed the amount of force a reasonable person, in the circumstances and from the viewpoint of the defendant, would have used to prevent the bodily harm.
Statutory Authority: 21 O.S. 2011, § 643(3).
Since section 643(3) is the statutory authorization for the use of nondeadly force both in self-defense and in the defense of another, the statutory language should be construed the same way for both defenses. Thus, the above instruction is practically identical to the instruction on justifiable use of nondeadly force in self-defense. (See the Committee Comments accompanying OUJI-CR 8-48.) Of course, the general rule obtains that one who goes to the aid of another acts at his own peril, for the right to act in defense of that other is coextensive with the other's right to defend himself at that time, under those circumstances. McBroom v. State, 1924 OK CR 90, 26 Okl. Cr. 352, 224 P. 210, 210 (Syllabus by the Court); Head v. State, 1924 OK CR 7, 26 Okl. Cr. 33, 221 P. 791, 793-94.
It should be pointed out that justifiable use of nondeadly force in defense of another is not limited by the statutory language of section 643(3) to any specific, named persons. Hence, a person can come to the defense of any other person with nondeadly reasonable force. If the person defended against should then accidentally be killed, the homicide would seem to be an excusable homicide under 21 O.S. 2011, § 731(1). See Adams v. State, 1951 OK CR 20, 93 Okl. Cr. 333, 338-39, 228 P.2d 195, 198; Johnson v. State, 1936 OK CR 66, 59 Okl. Cr. 283, 295-96, 58 P.2d 156, 162. To the defendant, it is immaterial whether the homicide is called excusable or justifiable for purposes of criminal law, because in either instance the defendant is entitled to be found not guilty. (See also the instructions on excusable homicide, OUJI-CR 8-28 and OUJI-CR 8-29.)