THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
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 VOLUME 11 - CHAPTER 253
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253.4 Self Defense, Defense Of Others, Defense Of Property -- Complete

    253.4.14 Transferred Self Defense

    253.4.14.1 Transferred Self Defense

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 253

RATIONALE: If the defendant is acting lawfully in self defense then it would be unjust to allow criminal liability to be based solely on the fact that, through no fault of the defendant, a bystander was killed instead of the aggressor.

POINTS AND AUTHORITIES: The doctrine of transferred self defense is available to insulate one from criminal responsibility where his or her act, justifiably in self defense, inadvertently resulted in the injury of an innocent bystander. Under this doctrine, "just as 'one's criminal intent follows the corresponding criminal act to its unintended consequences,' [citation] so too one's lack of criminal intent follows the corresponding noncriminal act to its unintended consequences." [Original emphasis.] (People v. Levitt (CA 1984) 156 CA3d 500, 508 [203 CR 276]; People v. Mathews (CA 1979) 91 CA3d 1018, 1023 [154 CR 628]; State v. Zumwalt (MO 1998) 973 SW2d 504, 507 [an individual who acts in self-defense against an aggressor, but who ends up wounding a bystander, can raise self-defense in a prosecution for wounding the bystander].)

    "The generally accepted view is that if a person without legal excuse or justification, shoots at one individual and inadvertently kills another, he is guilty of the same degree of unlawful homicide as if he had killed the object of his aim, but if he was acting in self-defense and accidentally killed another, he is guilty of no crime." [Citations.] (People v. Adams (IL 1972) 291 NE2d 54, 55-56.) Hence, "[i]f in performing the lawful act of using deadly force to defend himself, the defendant misses his assailant and kills an innocent bystander, this would constitute an ‘excusable’ homicide, provided the defendant was not guilty of criminal negligence in performing the act; this homicide by accident is an ‘excusable’ rather than a ‘justifiable’ homicide because the killing of an innocent bystander is not ‘authorized’ by the law." [Footnotes omitted.] (Wharton’s Criminal Law (West, 15th ed. 1993) § 138, p. 235; Mathis v. State (AL 1986) 497 So2d 231, 232-33; State v. Duis (NE 1981) 301 NW2d 587, 590 ["If the defendant was justified in using force toward (the person who used force or a threat of force), he was justified in the force employed, which mistakenly struck the actual victim"]; People v. Morris (NY 1985) 491 NYS2d 860, 863; Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 5:20 [Defenses-Justification] (West, 1999).)

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

RESEARCH NOTE:

LaFave & Scott, Substantive Criminal Law, Transferred Self defense,§ 5.7(g) (West, 1986).

Barlow, Self defense and Reckless Crimes Against Third Parties: Has New York Forgotten Innocent Bystanders?, 22 Colum.J L & Soc Prob § 417, 420 (1989).

Annotation, Unintentional Killing Of Or Injury To Third Person During Attempted Self Defense, 55 ALR3d 620.

See generally, NCJIC 305.19.1 [Self Defense].

See generally, NCJIC 253.4.1.20 [Self Defense: Federal Model Instructions].

SAMPLE INSTRUCTION # 1:

    When a person acts in the exercise of [his] [her] right of self defense and by such act or acts [injures] [kills] an innocent bystander, the person has committed no crime against the bystander.

[Source: NCJIC.]

    Self defense is available to insulate a defendant from criminal responsibility where his or her act, justifiably in self defense, results in the death or injury of an innocent bystander. Hence, when one attempts to justifiably defend [himself] [herself], but by mistake or inadvertence kills or injures a different person, no crime has been committed.

[Source: NCJIC.]

    You are instructed that homicide is excusable when the death of a human being happens by accident or misfortune, though caused by the act of another who is in the prosecution of a lawful defense of himself. So, if you find* from the evidence that the defendant, ___________, was acting in self defense against ___________ (alleged aggressor) and shot at _____________ (alleged aggressor) but accidentally hit and killed ______________ (deceased) without intending to cause any harm to ______________ (deceased), or if you should have a reasonable doubt thereof, then defendant would be guilty of no offense and you will find the defendant not guilty.

* But see NCJIC 6.2.22 ["If you find..." Language Improperly Shifts Burden To Defendant].

[Source: McClung, & Carpenter, TEXAS CRIMINAL JURY CHARGES 1:350 [General Instruction: Reasonable Doubt, Presumption Of Innocence] (James Publishing, 2000).]

    If* the defendant acted in self defense as to the actions of _____________ (name of person defended against) at the time he [killed] [wounded] ______________ (name of alleged victim) you shall find the defendant not guilty.

* But see NCJIC 253.4.3.2 [Self Defense: Specification Of Prosecution's Burden].

[See generally People v. Mathews (CA 1979) 91 CA3d 1018, 1023 [154 CR 628]; State v. Zumwalt (MO 1998) 973 SW2d 504, 507; see also VIRGINIA MODEL JURY INSTRUCTIONS - CRIMINAL 33.910 [Transferred Intent -- Self Defense] (Lexis, 1998).]