OUJI-CR 8-55


A person is a trespasser if that person has ([entered without consent]/[is unlawfully] upon the land of another)/(refused to leave the land of another after a lawful request to leave has been made to him/her).

Committee Comments

A person who is a trespasser can utilize the defense of self-defense but only if the trespasser has availed himself of every reasonable means of retreat. If a trespasser has tried every reasonable means of retreat, or if no reasonable means of retreat exists, the trespasser may use force to defend himself against imminent danger of death, great bodily harm, or bodily harm. Of course, the trespasser may respond only with the amount of force which is reasonably necessary to prevent the imminent harm reasonably believed to exist. Use of excessive force destroys the defense of self-defense for the trespasser, just as it does for all other persons claiming self-defense. See Thompson v. State, 462 P.2d 299 (Okl. Cr. 1969); Womack v. State, 36 Okl. Cr. 44, 253 P. 1027 (1927). The alternate language in OUJI-CR 8-54 permits it to be tailored to a case involving self-defense under either section 733 or section 643(3).

The definition of trespasser reflects the facts of numerous cases in which self-defense has been claimed either by a trespasser or against a trespasser. E.g., 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); Dyer v. State, 58 Okl. Cr. 345, 53 P.2d 700 (1936); Choate v. State, 37 Okl. Cr. 314, 258 P. 360 (1927); Thomason v. State, 17 Okl. Cr. 666, 191 P. 1096 (1920); Marshall v. State, 11 Okl. Cr. 52, 142 P. 1046 (1914); Dickinson v. State, 3 Okl. Cr. 151, 104 P. 923 (1909).

The purpose of these two trespasser instructions is to permit the jury to decide whether or not the defendant is a trespasser and therefore entitled to the defense of self-defense only after the retreat requirements are satisfied. OUJI-CR 8-54 and 8-55 are to be given only when a factual dispute exists as to whether or not the defendant was a trespasser, or, if a trespasser, whether or not the trespasser availed himself of every reasonable means of retreat. Furthermore, these two trespasser instructions are appropriate only after the defendant or the prosecution has presented sufficient evidence to raise self-defense as an issue in the case. Downey v. State, 510 P.2d 287 (Okl. Cr. 1973).