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

    253.4.16 Imminent Danger

    253.4.16.1 Self Defense: Brandishing Or Attempted Brandishing Of Firearm As Imminent Danger
    253.4.16.2 Self Defense: Imminent Danger — Assailant Need Not Wield Deadly Weapon
    253.4.16.3 Self Defense: Use Of Term "Immediate" Instead Of "Imminent" As Error
    253.4.16.4 Self-Defense: Right To Instruction On Appearance Of Danger

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PRACTICE NOTE: A person's conduct in merely preparing for an attack is not sufficient to justify self defense.  (Wharton’s Criminal Law (West, 15th Ed. 1994) § 127, p. 184.)  However, drawing or attempting to draw a gun may be sufficient because a defendant is not required to wait until an assailant "gets the drop on him." (Ibid.)  For example, pointing an unloaded gun at the defendant justifies his killing the assailant if the defendant did not know the gun was unloaded and if he reasonably believed he was in imminent danger of being killed or suffering great bodily injury.  (Ibid.)

    See also NCJIC 253.4.11.9 [Self Defense: Reasonable Person Standard -- Defendant Need Not Wait For The Attack].

See generally, NCJIC 305.19.1 [Self Defense].

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

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 VOLUME 11 - CHAPTER 253

PRACTICE NOTE: Ordinarily, a threatened punch or kick will not justify a killing.  However, when the assailant is larger and more powerful than the defendant and the latter is unable to resist the attack, such inability to resist may justify killing the assailant even though the latter is unarmed. (Wharton’s Criminal Law (West, 15th Ed. 1993) § 127, p. 189.)

See generally, NCJIC 305.19.1 [Self Defense].

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

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 VOLUME 11 - CHAPTER 253

    253.4.16.3    Self Defense: Use Of Term "Immediate" Instead Of "Imminent" As Error

PRACTICE NOTE: State v. Hundley (KS 1985) 693 P2d 475, 480-81 held it to be reversible error to use the word "immediate" in a self defense instruction. This is so because the word "immediate" places undue emphasis on the immediate action of the aggressor while a build up of terror and fear over a period of time, particularly in battered spouse instances, may be more important.  (PATTERN INSTRUCTIONS FOR KANSAS - CRIMINAL, PIK - Criminal 3d 54.17 [Principles Of Criminal Liability-Use Of Force In Defense Of A Person] (Kansas Judicial Council, 3rd ed. 1999).) Thus, the word "imminent" would better describe self defense because the imminent implies "impending or near at hand, rather than immediate." (Ibid.)

    See also NCJIC 253.1.3 [Battered Person Syndrome As Relevant To Issue Of Imminent Danger].

See generally, NCJIC 305.19.1 [Self Defense].

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

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    253.4.16.4    Self-Defense: Right To Instruction On Appearance Of Danger

PRACTICE NOTE:  See State v. Starnes (SC 2000) 531 SE2d 907 [defendant entitled to an instruction explaining that the appearance of danger, as opposed to actual danger, can justify self-defense].