Nature of the Case
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Facts
D was confined in the cell with three other prisoners, one of whom was Gary Riggs, the victim. D was 19 years of age at the time of the offense. Riggs was 24 years of age. Riggs had a reputation for sex and violence and D was afraid of Riggs. P concedes that Riggs had unquestionably placed D in a position of general subservience. D and Riggs had been gambling and D owed Riggs approximately $3,000. Riggs had threatened to make a 'punk' out of D by selling the debt to some other prisoner. A punk is a prisoner who commits homosexual acts with other prisoners. D testified that he did not want to gamble with Riggs but Riggs made D continue to play cards and gamble. On the day before the incident, D and the other two prisoners in the cell submitted a written request that Riggs be moved to another cell. D and Riggs played cards until about 10 p.m. D testified Riggs said that he might walk in his sleep that night and 'collect some of this money I got owed to me tonight.' D went to bed about 10 p.m. but, was unable to sleep because of what Riggs had said. D got up about 1 a.m. and stabbed Riggs in the back with a knife made from a table knife. When Riggs tried to remove the knife from his back, D struck Riggs in the face several times with a metal ashtray. D was charged with stabbing with intent to kill, wound, or maim D was charged with stabbing with intent to kill, wound, or maim The guard was called and Riggs was taken to the hospital. D was charged with stabbing with intent to kill, wound, or maim Section 28-834, R. R. S. 1943 states: '(1) Conduct which the actor believes to be necessary to avoid a harm or evil to himself or another is justifiable if: '(a) The harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged; '(b) Neither sections 28-833 to 28-843 nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and '(c) A legislative purpose to exclude the justification claimed does not otherwise plainly appear. '(2) When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his conduct, the justification afforded by this section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability.' D submitted a requested instruction based upon section 28-834, R. R. S. 1943, and NJI No. 14.33, as revised, which the trial court refused. The jury found D guilty of the lesser offense of assault with intent to inflict great bodily injury. D appealed.
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