DEFENSE OF SELF-DEFENSE - AGGRESSOR DEFINED
A person is an aggressor when that person by his/her wrongful acts provokes, brings about, or continues an altercation. [The use of words alone cannot make a person an aggressor.]
Notes on Use
The parenthetical sentence is presented by the Committee for use by the trial judge in those cases in which it will serve as a clarifying sentence in this instruction. The sentence is in brackets because the Committee was of the opinion that it is not usually needed in most cases involving a dispute as to fault and normally should not be given.
The previous four instructions are intended for use when the facts of the case give rise to a dispute as to who was the party at fault. These four instructions are applicable whether the defendant is claiming self-defense under either section 733 or section 643(3).
A person who is the aggressor in an altercation is not entitled to the defense of self-defense. Ruth v. State, 581 P.2d 919 (Okl. Cr. 1978); Martley v. State, 519 P.2d 544 (Okl. Cr. 1974); Freeman v. State, 97 Okl. Cr. 275, 262 P.2d 713 (1953); Evans v. State, 89 Okl. Cr. 218, 206 P.2d 247 (1949); Rollen v. State, 7 Okl. Cr. 673, 125 P. 1087 (1912). Neither may a person provoke an altercation as an excuse to inflict bodily injury upon another. Moutrey v. State, 9 Okl. Cr. 623, 132 P. 915 (1913); Hays v. Territory, 7 Okl. 15, 52 P. 950 (1897) (use of gross insults with intent to cause altercation). Nor may a person use self-defense if that person has voluntarily entered into mutual combat. Jenkins v. State, 80 Okl. Cr. 328, 161 P.2d 90 (1945); Koozer v. State, 7 Okl. Cr. 336, 123 P. 554 (1912). Hence, OUJI-CR 8-50 uses alternative language to permit the trial judge to conform the instruction to the particular facts of the trial.
Although a person may originally have been at fault in the altercation, a person can regain the right of self-defense if that person withdraws or attempts to withdraw from the altercation and communicates his withdrawal or attempted withdrawal to the other participant in the altercation. If the other participant continues to fight the person who wants to quit, the participant who was not originally at fault becomes the aggressor. Scaggs v. State, 417 P.2d 331 (Okl. Cr. 1966); Townley v. State, 355 P.2d 420 (Okl. Cr. 1960), on rehearing 1960.
Perez v. State, 51 Okl. Cr. 180, 300 P. 428 (1931), and Price v. State, 1 Okl. Cr. 358, 98 P. 447 (1908), make it clear that a person who is not at fault has no duty to retreat. A person who is not at fault is entitled to the defense of self-defense as long as the reasonable belief of imminent bodily harm and the necessity for the use of force exist. The Commission has concluded that OUJI-CR 8-50 is related to OUJI-CR 8-52 and should not be given separately.
The definition of aggressor in OUJI-CR 8-53 is taken almost verbatim from the definition set forth by the Court of Criminal Appeals in Townley, supra.
It should be emphasized that, if the evidence from the prosecution in the trial indicates no dispute that the defendant was at fault, and if the defendant does not come forward with evidence to indicate the defendant was not at fault, the issue of self-defense has not been raised. If the evidence indicates without dispute that defendant is at fault, the defendant is not entitled to the defense of self-defense. Therefore, no instructions on self-defense, including the above four instructions, should be given to the jury. The only question for determination by the jury is whether the defendant committed the crime charged or a lesser included offense. Ridinger v. State, 97 Okl. Cr. 377, 267 P.2d 175 (Okl. Cr. 1954); Freeman, supra; Koozer, supra. Moreover, if there is no dispute in the evidence that the defendant was not at fault and the defendant presents sufficient evidence of self-defense, the issue of self-defense is raised and the last four instructions should not be given. Only the appropriate self-defense instruction and the burden of proof instruction should be given. The only question for determination by the jury is whether the State has met its burden of proof to overcome the defense of self-defense. Bearden v. State, 458 P.2d 914 (Okl. Cr. 1969).
The last four instructions should be used only when a dispute exists as to whether the defendant or the other participant in the altercation was at fault. When such a dispute exists, all four instructions should be given so the jury will be clearly informed as to the respective rights of the parties. Failure to give these four instructions would mean that the trial court had improperly assumed that the defendant was the aggressor. Scaggs, supra; Townley, supra; Perez, supra.
OUJI-CR 8-53 includes a parenthetical sentence indicating that use of words alone does not make a person an aggressor. As indicated in the commentary accompanying the self-defense instructions, a defendant is not able to claim the defense of self-defense to justify the use of any force upon a person who has insulted or threatened the defendant. Ruth v. State, supra; Jarnison v. State, 304 P.2d 371 (Okl. Cr. 1956); Fields v. State, 85 Okl. Cr. 439, 188 P.2d 231 (1948); Brewer v. State, 84 Okl. Cr. 235, 180 P.2d 848 (1947); Tritthart v. State, 35 Okl. Cr. 41, 247 P. 1111 (1926); Burchett v. State, 22 Okl. Cr. 81, 209 P. 970 (1922). Since a defendant cannot claim self-defense when insulted or threatened, the person who makes the insults or threats cannot be an aggressor. But compare Hays v. Territory, supra, (use of gross insults with intent to cause an altercation).