OUJI-CR 8-46
DEFENSE OF SELF-DEFENSE -
JUSTIFIABLE USE OF DEADLY FORCE
A person is justified in using deadly force in self-defense if that person reasonably believed that use of deadly force was necessary to prevent death or great bodily harm to himself/herself or to terminate or prevent the commission of a forcible felony against himself/herself. Self-defense is a defense although the danger to life or personal security may not have been real, if a reasonable person, in the circumstances and from the viewpoint of the defendant, would reasonably have believed that he/she was in imminent danger of death or great bodily harm.
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Statutory Authority: 21 O.S. Supp. 2016, § 733.
Notes on Use
This Instruction should be used for the use of deadly force in self defense or to prevent the commission of a forcible felony upon the defendant. For an Instruction for the use of deadly force in the defense of another or to prevent the commission of a forcible felony upon another, see OUJI-CR 8-2, supra. For an Instruction for the use of deadly force in protection of the habitation, see OUJI-CR 8-14, supra. For an Instruction for the use of deadly force against an intruder, see OUJI-CR 8-15, supra. For an Instruction on the right to stand your ground, see OUJI-CR 8-15A, supra.
Committee Comments
Fear alone does not justify a homicide, McKee v. State, 1962 OK CR 57, 372 P.2d 243; nor may a homicide be justified because of threats or insults by the decedent, Jamison v. State, 1956 OK CR 127, 304 P.2d 371; Fields v. State, 1947 OK CR 126, 85 Okl. Cr. 439, 188 P.2d; Ging v. State, 1925 OK CR 461, 31 Okl. Cr. 428, 239 P. 685; nor may a defendant kill and be justified when acting simply on subjective honest belief, Haines v. State, 1954 OK CR 85, 275 P.2d 347; Hood v. State, 1925 ok cr 461, 70 Okl. Cr. 334, 106 P.2d 271. Rather, a homicide is justifiable when a reasonable person would have used deadly force. Davis v. State, 2011 OK CR 29, ¶ 95, 268 P.3d 86, 114 (quoting this Instruction); Harris v. State, 1968 OK CR 223, 448 P.2d 296; Jamison v. State, supra; Brown v. State, 1923 OK CR 204, 24 Okl. Cr. 161, 216 P. 944. A homicide is also justifiable when the use of deadly force is reasonably necessary because the danger appears imminent. McKee v. State, supra; Lary v. State, 1931 OK CR 83, 50 Okl. Cr. 111, 296 P. 512; Best v. State, 1926 OK CR 41, 33 Okl. Cr. 237, 242 P. 1063. Finally, the jury should view the circumstances from the viewpoint of the defendant. Wingfield v. State, 1949 OK CR 36, 89 Okl. Cr. 45, 55, 205 P.2d 320, 327, overruled on other grounds, Hommer v. State, 1983 OK CR 2, ¶ 6, 657 P.2d 172, 174; Guthrie v. State, 1948 OK CR 58, 87 Okl. Cr. 112, 194 P.2d 895.
Subsection 1 of 21 O.S. Supp. 2016, § 733 provides that homicide is justifiable "[w]hen resisting any attempt ... to commit any felony upon him." Nevertheless, the Court of Criminal Appeals has held that the use of deadly force is not justifiable to prevent commission of any felony. In Mammano v. State, 1958 OK CR 94, 333 P.2d 602, the deceased grabbed the defendant's hands and placed them on his private parts. The defendant killed the deceased and pleaded subsection 1 in justification. The court held that the acts of the deceased alone did not justify the homicide because the acts of the deceased did not involve imminent danger of death or great bodily harm to the defendant. The conviction was affirmed. The Mammano case, therefore, places a limitation on the "any felony" language of subsection 1. Only those felonies which involve danger of imminent death or great bodily harm may be defended against by the use of deadly force.
Subsection 3 of section 733 also contains the language, "in lawfully suppressing any riot; or in lawfully keeping and preserving the peace." Research has shown only one case that has invoked the "preserving the peace" language, and no cases that have invoked the "suppressing any riot" language as justification for the use of deadly force. Fleming v. State, 1965 OK CR 53, 401 P.2d 997. In Fleming, the defendant had been asked by a neighbor to come to her house to help her stop a fight that had developed between her husband and a friend. When the defendant attempted to stop the fight, the friend began fighting with the defendant and attacked the defendant with a knife. The defendant killed the friend. The Court of Criminal Appeals reversed the conviction for first-degree manslaughter because the trial court failed to instruct on subdivision 3 of section 733. The Commission considered it significant, however, that the defendant in Fleming had been attacked by the decedent, who was wielding a knife. Hence, the defendant had a right of self-defense. The Commission is therefore of the opinion that a homicide is "necessarily committed" when preserving the peace only in those situations in which the peacemaker is in imminent danger of death or great bodily harm, i.e., only in those situations in which the peacemaker has a defense of self-defense. Similarly, the Commission has concluded that use of deadly force is justifiable when suppressing a riot only in those situations in which the defense of self-defense is applicable.
(2017 SUPP.)