A person is an aggressor when that person by his/her wrongful conduct provokes, brings about, or continues an altercation. [The use of words alone cannot make a person an aggressor.]

Committee Comments

The above four instructions reflect the case law that one who intervenes on behalf of another intervenes at his own risk. A defendant is entitled to the defense of defense of another only when the person defended is not at fault in the altercation. If the person defended is at fault, even if the defendant is unaware of who is at fault, the defense of defense of another does not exist. Hence, although the defendant is entitled to act on reasonable appearances, he is entitled to the defense of defense of another only as long as he has chosen correctly to act on behalf of the party not at fault in the altercation, or the party who has attempted to terminate the altercation. Hendrick v. State, 63 Okl. Cr. 100, 73 P.2d 184 (1937); Hare v. State, 58 Okl. Cr. 420, 54 P.2d 670 (1936); Head v. State, 26 Okl. Cr. 33, 221 P. 791 (1924); Moore v. State, 25 Okl. Cr. 151, 219 P. 175 (1923). Thus, these instructions should be read in conjunction with those pertaining to the defense of self-defense. (For a more detailed discussion of these four instructions, see the Committee Comments accompanying the instructions on self- defense following OUJI CR 8-53.) These four instructions are applicable whether the defendant is claiming defense of another under section 733(2) or under section 643(3).

One situation which may arise in determining whether the person defended is at fault, the determination upon which the availability of the defense of defense of another hinges, is not specifically resolved by the cases. If A voluntarily enters into combat with B using merely nondeadly force but is faced with use of deadly force by B in response, does A, the original aggressor, have a right of self-defense, so that a person who intervenes on A's behalf may avail himself of the defense of defense of another? The pertinent cases address the issue of A's right of self-defense only in circumstances where persons in the position of A entered an affray using deadly force, and thus are not necessarily dispositive. See, e.g., Price v. State, 541 P.2d 373 (Okl. Cr. 1975); Freeman v. State, 97 Okl. Cr. 275, 262 P.2d 713 (1953); Jenkins v. State, 80 Okl. Cr. 328, 161 P.2d 90 (1945); Koozer v. State, 7 Okl. Cr. 336, 123 P. 554 (1912). In these cases, the Court of Criminal Appeals has reiterated that a combatant has the duty to withdraw or attempt to withdraw, and to communicate the withdrawal or attempted withdrawal, before a right of self-defense is established. The language of the court in Jenkins, supra, is particularly pertinent. The court stated:

Where a defendant seeks or provokes a difficulty without any intention of killing or doing serious bodily injury to the deceased, and a conflict ensues, and the defendant, being hard-pressed, kills the deceased, then [the defendant] will be guilty of manslaughter, unless before the fatal blow was struck or shot was fired the defendant sought to withdraw from the combat....

80 Okl. Cr., at 334, 161 P.2d, at 97, quoting Koozer v. State, supra.

Thus, although these cases resolve situations where the defendant voluntarily entered mutual combat with deadly force, the language of the court suggests that one who uses nondeadly force and is met in combat with deadly force may have to withdraw, or attempt to do so, and sufficiently communicate this act to the opponent before self-defense becomes available. In the context of the example outlined above, a person who intervenes on A's behalf can avail himself of the defense of defense of another only where A himself withdrew or attempted to do so and adequately communicated this to B.

In delineating a standard by which to judge the sufficiency of the initial aggressor's withdrawal or attempted withdrawal, the Court of Criminal Appeals attempts to determine whether the circumstances of each case demonstrate that the initial aggressor clearly showed by his conduct a desire to decline participation in any further struggle, and in some manner made this intention known to his adversary. Determination of the sufficiency of a combatant's withdrawal or attempted withdrawal, and his communication thereof, must remain an ad hoc decision. See, e.g., Martley v. State, 519 P.2d 544 (Okl. Cr. 1974); Townley v. State, 355 P.2d 420 (Okl. Cr. 1960); Perez v. State, 52 Okl. Cr. 180, 300 P. 428 (1931): Brannon v. State, 24 Okl. Cr. 362, 217 P. 1060 (1923).

The definition of aggressor is taken virtually verbatim from the definition set forth by the Court of Criminal Appeals in Townley, supra.

A further difficulty in determining the availability of the defense of defense of another becomes apparent when the provisions of section 643(3) are read in juxtaposition with the provisions of section 733(2). Section 643(3) permits the intervenor to aid another person who is "about to be injured" and to use that degree of force "sufficient to prevent such offense." Section 733(2) terms a homicide justifiable when perpetrated in defense of a person who is included within one of the specified classes of persons who have some relation to the defendant, such as spouse, parent, master, mistress, or servant. The question unresolved by the juxtaposition of these two statutes is whether deadly force may be used under section 643(3) in defense of a stranger or nonrelative under circumstances where the stranger or nonrelative himself has a right to utilize deadly force in repelling an attack.

For example, assume that A commits an unprovoked attack upon B using deadly force. B is not the aggressor and retains a right of self-defense. C observes the attack and, although he is not acquainted with B, comes to B's defense. In the ensuing struggle, C, using force reasonable under the circumstances, slays A. May C raise the defense outlined in section 643(3) in exculpation of his homicidal conduct, or does section 733(2) restrict the lawful use of deadly force in defense of another to situations where that other is a member of one of the classes of persons specified by section 733(3)?

The paucity of case law in Oklahoma pertaining to the availability of the defense set forth in section 643(3) does not address this question. The cases do resolve that, when defending a person who is a member of one of the classes detailed in section 733(2), the defender is justified in committing a homicide only if he reasonably perceives that the person aided - spouse, parent, child, master, mistress, or servant - is in imminent danger of great bodily injury or death. Garrett v. State, 586 P.2d 754 (Okl. Cr. 1978); Hendrick v. State, supra; Hare v. State, supra; Moore v. State, supra; Litchfield v. State, 8 Okl. Cr. 164, 126 P. 707 (1912); Clemmons v. State, 8 Okl. Cr. 159, 126 P. 704 (1912). In Haines v. State, 275 P.2d 347 (Okl. Cr. 1954), the court affirmed the defendant's conviction for manslaughter in the first degree and rejected the defendant's claim that he acted in defense of his paramour, or "mistress," and was therefore entitled to the defense set forth in section 733(2). The court construed the statutory term "mistress" as restricted to the female counterpart of "master." However, in Haines the woman allegedly defended had been subjected only to verbal abuse and threats by the deceased, so that there was no "reasonable ground to apprehend ... great personal injury" under section 733(2), and no right of self-defense on the part of the person defended under section 643(3).

Arguments support both sides of the question concerning the availability of the defense of defense of another to an intervenor who uses deadly force to aid a person who is not his parent, child, spouse, master, mistress, or servant. It might be contended that the defense should be available wherever the person defended could lawfully use deadly force in self-defense, and that the absence of one of the relationships designated in section 733(2) between the intervenor and the person defended should not preclude the availability of the defense where deadly force is necessary to repel the attack. On the other hand, it might be maintained that the statutes should be narrowly construed to permit use of deadly force only under the circumstances delineated in section 733(2), since the common law defense of defense of another developed from property concerns, from the common law privilege of a person to protect that which was "his," including spouse, children, parents, and servants. R. Perkins, Criminal Law 1019 (2d ed. 1969). Furthermore, perhaps the use of deadly force to defend a person other than those described in section 733(2) should be discouraged.

The confusion surrounding this issue is compounded when two additional statutes are considered. Section 31 of Title 22 provides: "Lawful resistance to the commission of a public offense may be made: (1) By the party about to be injured; (2) By other parties." Section 33 of Title 22 provides: "Any other person, in aid or defense of the person about to be injured, may make resistance sufficient to prevent the offense."

One further situation where the intervenor who enters an affray to aid another is allowed to avail himself of a defense was outlined by the court in Moore v. State, 25 Okl. Cr. 118, 218 P. 1102 (1923). Where the defendant enters a situation of combat in order to defend a person who has no right to self-defense, the intervenor also has no right to claim defense of another. However, if the intervenor himself withdraws and is then pursued, he may avail himself of the defense of self-defense, even though the party whom the intervenor intended to aid did not withdraw.

The Commission has concluded that, if the evidence of the prosecution in the trial indicates no dispute that the person defended was at fault, and the defendant does not come forward with evidence to indicate that the person defended was not at fault, then the issue of defense of another has not been raised. Under such circumstances, the defendant who aided another by use of force would have chosen incorrectly to act on behalf of a person who was at fault. In such a situation, no instructions on defense of another, including the four instructions above, 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. See Ridinger v. State, 97 Okl. Cr. 377, 267 P.2d 175 (1953). Moreover, if there is no dispute in the evidence that the person defended was not at fault and the defendant presents sufficient evidence of defense of another, then the issue of defense of another is raised, but the above four instructions need not be given because fault is not in dispute. Only the appropriate defense-of-another 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 defense of another. See Bearden v. State, 458 P.2d 914 (Okl. Cr. 1969).

The only time the above four instructions should be used is when a dispute exists as to whether the person defended was the party at fault, or whether the other participant in the altercation was at fault. When such dispute exists, all four instructions should be given so that the jury may be clearly informed as to the respective rights of the parties. See Scaggs v. State, 417 P.2d 331 (Okl. Cr. 1966); Townley v. State, supra; Perez v. State, supra.