Committee Comments

Subdivision 3 of section 643 presents the statutory authorization for use of nondeadly force in self-defense. Although the proviso clause of section 643(3) seems to indicate that a person using force to protect himself is limited to the amount of force "sufficient to prevent" bodily harm, and no more, the Court of Criminal Appeals has interpreted section 643(3) to permit a person to use as much force as reasonably appears necessary, even though in reality no force is necessary. Moreover, section 643(3) permits the use of force in self-defense against any bodily harm that appears imminent, such as a simple assault or a simple battery. Use of nondeadly force is justifiable even though the harm defended against does not reasonably arouse fear of death or great bodily harm. Johnson v. State, 59 Okl. Cr. 283, 58 P.2d 156 (1936). See Boston v. Muncie, 204 Okl. 603, 233 P.2d 300 (1951). Section 643(3) therefore differs from section 733, in two respects: (1) only nondeadly force is permissible under section 643(3) as opposed to deadly force under section 733; and, (2) any bodily harm may be defended against under section 643(3), whereas, under section 733, the harm must potentially be death or great bodily harm.

The amount of nondeadly force permissible under section 643(3) must be reasonably related to the amount of force defended against. Hence, as the amount of force defended against becomes greater, the amount of force which may justifiably be used in response becomes greater. Of course, if the person claiming self-defense uses excessive force, the defense of self-defense does not justify the excessive force. Easterling v. State, 267 P.2d 185 (Okl. Cr. 1954). If the force defended against puts a person in reasonable fear of imminent death or great bodily harm, the permissible force in response can be deadly force, and the defense of self-defense changes from self-defense under section 643(3) to self-defense under section 733. Mere threats, however, do not justify the use of force by the defendant, and the defendant could be convicted of assault or battery. Brewer v. State, 84 Okl. Cr. 235, 180 P.2d 848 (1947).

This instruction primarily is meant for use in cases that do not involve a homicide charge, such as cases of assault, battery, and assault with a dangerous weapon, in which self-defense under section 643(3) is interposed as a defense to the charge. It should be emphasized, however, that a person is permitted to use nondeadly force to repel an assault under section 643(3). If a permissible amount of force is used to repel the assailant but the assailant is accidentally killed while being repelled, the jury should be given instructions on excusable homicide under section 731, as well as on self-defense under section 643(3). Adams v. State, 93 Okl. Cr. 333, 228 P.2d 195 (1951); Johnson v. State, supra. (See, as a cross-reference, the instructions on the defense of excusable homicide, OUJI-CR 8-27 through OUJI-CR 8-30.).