Harries v. State

650 P.2d 273 (1982)


D and three companions went to a bar at about 12:30 A.M. on December 8, 1981. They rode in a pickup truck that belonged to one of the friends. A fight broke out in the bar and was pushed through the door to the area outside the bar. Most of the patrons of the bar went outside and a number of them were involved in the fight. As the fight moved to the outside, D went out. As he went through the door, someone hit him. D testified that he '* * * * ran around to the other side of the truck and I thought, I got to get a club or a tire iron or something, and so I opened up the passenger side ... and I reached underneath the seat to see what I could find and I came up with a gun * * * *.' D then aimed the gun at one smaller kid, told him to get back in the bar, and the kid started backing up in the bar and D started waiving the gun around. D then turned towards Butch and he started saying, 'I'll kill. I'll kill.' He said, 'Get back in the bar. I'll kill.' D then waived the gun and he took a couple of steps at the victim and D stuck the gun right in the victim's chest. The victim stepped sideways and grabbed the gun as it went off. The victim was shot in the leg. D argued that his actions were justifiably taken in self-defense and were therefore not criminal. The court instructed the jury: “It is lawful for a person who is being assaulted to defend himself from attack if he has reasonable grounds for believing and does believe that bodily injury is about to be inflicted upon him. To justify acting in self-defense, it is not necessary that the danger was real, or that the danger was impending and immediate, so long as the defendant had reasonable cause to believe and did believe these facts. One who has reasonable grounds to believe that another will attack him and that the anticipated attack will be of such a character as to endanger his life or limb, or to cause him serious bodily harm, has a right to arm himself for the purpose of resisting such attack. If the defendant armed himself in reasonable anticipation of such an attack, that fact alone does not make the defendant the aggressor or deprive the defendant of the right of self-defense. Even if the Defendant had reasonable ground to believe, and actually did believe, that he was in imminent danger of death or serious bodily harm, he was justified in using deadly force to repel the danger only if he retreated as far as he safely could before doing so.” D was convicted and appealed.