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 VOLUME 11 - CHAPTER 253
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253.4 Self Defense, Defense Of Others, Defense Of Property -- Complete

    253.4.13 Multiple Assailants

    253.4.13.1 Self Defense: Reasonable Person Standard -- Right To Defend Against Multiple Assailants Acting In Concert
    253.4.13.2 Self Defense: Reasonable Person Standard -- Consideration Of The Number Of Assailants

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 VOLUME 11 - CHAPTER 253

RATIONALE: When the defendant was attacked or threatened by more than one person, the standard pattern instruction on self defense may mislead the jury by tying self defense to a single assailant. Hence, when appropriate, the instructions should be clarified so the jury understands that the defendant may lawfully defend against any or all of the assailants.

POINTS AND AUTHORITIES: Where a person is attacked by two or more other persons, or is attacked by one person and others are acting with the assailant or are present and aiding and encouraging him, the attacked person has a right to act in self defense against all and, in a proper case, to kill one or all. However, the person is not justified in killing one of the other persons where he does not entertain a belief that he is in danger of serious bodily injury or loss of life at the hands of such person. (See 40 Corpus Juris Secondum, Homicide § 136, p. 1021; see also Domingo v. State (GA 1957) 96 SE2d 896, 898 [trial court's charge that if two or more persons acting together unlawfully assault or attack another he may defend himself against either or all of such persons was authorized by defendant's statement to jury and was not error]; People v. Johnson (MI 1982) 316 NW2d 247, 249; Alaniz v. State (TX 1993) 865 SW2d 529, 532-33; Tanguma v. State (TX 1986) 721 SW2d 408, 411; State v. Green (WV 1974) 206 SE2d 923, 926 [reversible error to refuse to instruct the jury that the defendant had the right to defend against any or all of the several assailants who had attacked him].)

    See also FORECITE National™ 253.4.13.2 [Self Defense: Reasonable Person Standard -- Consideration Of The Number Of Assailants].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5; 4.1].

See generally, FORECITE National™ 305.19.1 [Self Defense].

See generally, FORECITE National™ 253.4.1.20 [Self Defense: Federal Model Instructions].

    A person who is attacked by more than one person [or by one person and others helping and encouraging the attacker] has the right to act in self defense against all of them. [However, before using deadly force against one of the attackers, the person must honestly and reasonably believe that he or she is in danger of being [killed] [seriously injured] [forcibly sexually assaulted] by that particular person.]

[See generally People v. Johnson (MI 1982) 316 NW2d 247, 249; State v. Green (WV 1974) 206 SE2d 923, 926; Alaniz v. State (TX 1993) 865 SW2d 529, 532-33; see also MICHIGAN CRIMINAL JURY INSTRUCTIONS 7.24 [Self Defense Against Persons Acting In Concert] (ICLE, 2nd ed. 1999).]

    You are further instructed that in so acting in self defense, if ______________ (defendant) was so acting at the time, the defendant had a right to act in self defense against ________________ (the first alleged attacker) without regard to whether he was also in fear of death or serious bodily injury at the hands of __________________ (the second attacker who subsequently joined the first attacker), and he also had a right to act in self defense against _______________ (the second deadly attacker) if he was in fear of death or serious bodily injury at the hands of either ________________ (the second attacker) or __________________ (the first attacker). (defendant) was so acting at the time, the defendant had a right to act in self defense against ________________ (the first alleged attacker) without regard to whether he was also in fear of death or serious bodily injury at the hands of __________________ (the second attacker who subsequently joined the first attacker), and he also had a right to act in self defense against _______________ (the second deadly attacker) if he was in fear of death or serious bodily injury at the hands of either ________________ (the second attacker) or __________________ (the first attacker).

[See Horn v. State (TX 1983) 647 SW2d 283; McCuin v. State (TX 1974) 505 SW2d 831; cf. McClung, & Carpenter, TEXAS CRIMINAL JURY CHARGES 12:760:110 [Multiple Assailants] (James Publishing, 2000).]

    A person has the right to defend [himself] [herself] from what [he] [she] reasonably believed to be the use or imminent use of unlawful physical force by the victim or those whom the defendant reasonably believed were acting in concert with the victim.

[See People v. Auldridge (CO 1986) 724 P2d 87, 88.]

    If* the defendant [believed that ___________ (name of alleged victim), or others acting in concert with [him] [her] was then and there about to use] [believed there was an impending danger that ___________ (name of alleged victim), or others acting in concert with [him] [her], would use,] physical force upon [him] [her], the defendant was permitted to lawfully use such physical force against ________________ (name of alleged victim) and those acting in concert with [him] [her] as the defendant believed necessary to protect [himself] [herself].

* But see FORECITE National™ 270.3.2 ["If you find..." Language Improperly Shifts Burden To Defendant].

[See generally People v. Johnson (MI 1982) 316 NW2d 247, 249; Alaniz v. State (TX 1993) 865 SW2d 529, 532-33; State v. Green (WV 1974) 206 SE2d 923, 926; see also Cooper, KENTUCKY INSTRUCTIONS TO JURIES 11.07A [Justification - Self Protection; Homicide; Two Or More Assailants] (Anderson, 4th ed. 2001).]

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 VOLUME 11 - CHAPTER 253

RATIONALE: The number of assailants is a factor which may affect the reasonableness of the defendant's response.

POINTS AND AUTHORITIES: See Allen v. United States (1895) 157 US 675, 680 [15 SCt 720; 39 LEd 854]; see also People v. Manzanares (CO 1996) 942 P2d 1235, 1240 [instruction on self-defense must direct trier of fact to consider totality of circumstances, including number of persons reasonably appearing to be threatening accused]; People v. Cuevas (CO 1987) 740 P2d 25, 27 [although the instruction given does not constitute plain error, it should be more clearly stated on retrial in order to address the fact that multiple assailants were involved]; State v. Pearson (NC 1975) 215 SE2d 598, 603; State v. Fuller (SC 1989) 377 SE2d 328; Hinojosa v. State (TX 1988) 744 SW2d 319, 321 [when accused has been attacked by multiple assailants, he has right to jury charge on self-defense as it relates to multiple assailants]; Frank v. State (TX 1985) 688 SW2d 863, 868 [denial of his requested instruction on right of self-defense against multiple assailants was reversible error].

    See also FORECITE National™ 253.4.13.1 [Self Defense: Reasonable Person Standard -- Right To Defend Against Multiple Assailants Acting In Concert].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1; 7.1].

See generally, FORECITE National™ 305.19.1 [Self Defense].

See generally, FORECITE National™ 253.4.1.20 [Self Defense: Federal Model Instructions].

    In deciding whether the prosecution has proved beyond a reasonable doubt that the defendant had no right to use force in self defense, consider the number of assailants who [allegedly] [attacked] [threatened] the defendant.

[See generally People v. Manzanares (CO 1996) 942 P2d 1235, 1240; State v. Fuller (SC 1989) 377 SE2d 328; see also Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS VI(A)10.7 [Number Of Assailants] p. 280 (South Carolina CLE, 1994).]