State v. Leidholm, Cr. N

Decision Date12 May 1983
Docket NumberCr. N
Citation334 N.W.2d 811
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Janice LEIDHOLM, Defendant and Appellant. o. 855.
CourtNorth Dakota Supreme Court

John Romanick, State's Atty., Washburn, for plaintiff and appellee State of N.D.

Irvin B. Nodland, of Lundberg, Conmy, Nodland, Lucas & Schulz, Bismarck, for defendant and appellant.

VANDE WALLE, Justice.

Janice Leidholm was charged with murder for the stabbing death of her husband, Chester Leidholm, in the early morning hours of August 7, 1981, at their farm home near Washburn. She was found guilty by a McLean County jury of manslaughter and was sentenced to five years' imprisonment in the State Penitentiary with three years of the sentence suspended. Leidholm appealed from the judgment of conviction. We reverse and remand the case for a new trial.

I

According to the testimony, the Leidholm marriage relationship in the end was an unhappy one, filled with a mixture of alcohol abuse, moments of kindness toward one another, and moments of violence. The alcohol abuse and violence was exhibited by both parties on the night of Chester's death.

Early in the evening of August 6, 1981, Chester and Janice attended a gun club party in the city of Washburn where they both consumed a large amount of alcohol. 1 On the return trip to the farm, an argument developed between Janice and Chester which continued after their arrival home just after midnight. Once inside the home, the arguing did not stop; Chester was shouting, and Janice was crying.

At one point in the fighting, Janice tried to telephone Dave Vollan, a deputy sheriff of McLean County, but Chester prevented her from using the phone by shoving her away and pushing her down. At another point, the argument moved outside the house, and Chester once again was pushing Janice to the ground. Each time Janice attempted to get up, Chester would push her back again.

A short time later, Janice and Chester re-entered their home and went to bed. When Chester fell asleep, Janice got out of bed, went to the kitchen, and got a butcher knife. She then went back into the bedroom and stabbed Chester. In a matter of minutes Chester died from shock and loss of blood.

II

Leidholm raises seven issues on appeal, but because of the particular disposition of the case, we do not find it necessary to answer all of them.

The first, and controlling, issue we consider is whether or not the trial court correctly instructed the jury on self-defense. Our resolution of the issue must of necessity begin with an explanation of the basic operation of the law of self-defense as set forth in Chapter 12.1-05 of the North Dakota Century Code.

Our criminal code is the product of a massive revision which began in 1971 and culminated in 1973 with the legislative enactment of Senate Bill No. 2045. Although remnants of the "old code" survived revision and remain in the present code, most of its provisions are in substantial part modeled after the Proposed New Federal Criminal Code 2 [Report of the North Dakota Legislative Council (1973) at 81], which in turn relies heavily on the American Law Institute Model Penal Code. See, generally, Working Papers (1970-1971). Both the Proposed Code and the Model Penal Code are highly integrated codifications of the substantive criminal law which exhibit close interrelationships between their respective parts. Final Report, Foreword at xiii (1971). This integration is especially apparent in Chapter 12.1-05 of the North Dakota Century Code, which is an almost complete adoption of Chapter 6 of the Proposed Code dealing with defenses involving justification and excuse. It is to Chapter 12.1-05, N.D.C.C., that we now turn.

Conduct which constitutes self-defense may be either justified [Section 12.1-05-03, N.D.C.C.] or excused [Section 12.1-05-08, N.D.C.C.]. Although the distinction between justification and excuse may appear to be theoretical and without significant practical consequence, because the distinction has been made in our criminal statutes we believe a general explanation of the difference between the two concepts--even though it requires us to venture briefly into the pathway of academicism--is warranted.

A defense of justification is the product of society's determination that the actual existence of certain circumstances will operate to make proper and legal what otherwise would be criminal conduct. A defense of excuse, contrarily, does not make legal and proper conduct which ordinarily would result in criminal liability; instead, it openly recognizes the criminality of the conduct but excuses it because the actor believed that circumstances actually existed which would justify his conduct when in fact they did not. In short, had the facts been as he supposed them to be, the actor's conduct would have been justified rather than excused. See Final Report, Comment on Sec. 601 at 44 (1971); Note, Justification: The Impact of the Model Penal Code on Statutory Reform, 75 Colum.L.Rev. 914 (1975); Note: Justification and Excuse in the Judaic and Common Law: The Exculpation of a Defendant Charged With Homicide, 52 N.Y.U.L.Rev. 599 (1977).

In the context of self-defense, this means that a person who believes that the force he uses is necessary to prevent imminent unlawful harm is justified in using such force if his belief is a correct belief; that is to say, if his belief corresponds with what actually is the case. If, on the other hand, a person reasonably but incorrectly believes that the force he uses is necessary to protect himself against imminent harm, his use of force is excused.

The distinction is arguably superfluous because whether a person's belief is correct and his conduct justified, or whether it is merely reasonable and his conduct excused, the end result is the same, namely, the person avoids punishment for his conduct. Furthermore, because a correct belief corresponds with an actual state of affairs, it will always be a reasonable belief; but a reasonable belief will not always be a correct belief, viz., a person may reasonably believe what is not actually the case. 3 Therefore, the decisive issue under our law of self-defense is not whether a person's beliefs are correct, but rather whether they are reasonable and thereby excused or justified. See Vol. I, Working Papers, Comment on Excuse at 271 (1970); State v. Schimetz, 328 N.W.2d 808 (N.D.1982); State v. Hazlett, 16 N.D. 426, 113 N.W. 374 (1907). See also ALI Model Penal Code Sec. 3.04, Comment at 15, and Sec. 3.09, Comment at 77-79 (Tentative Draft No. 8, 1958).

Section 12.1-05-08, N.D.C.C., which sets forth the general conditions that excuse a person's conduct, states:

"A person's conduct is excused if he believes that the facts are such that his conduct is necessary and appropriate for any of the purposes which would establish a justification or excuse under this chapter, even though his belief is mistaken. However, if his belief is negligently or recklessly held [i.e., unreasonably], it is not an excuse in a prosecution for an offense for which negligence or recklessness, as the case may be, suffices to establish culpability. Excuse under this section is a defense or affirmative defense according to which type of defense would be established had the facts been as the person believed them to be."

The first sentence of Section 12.1-05-08, N.D.C.C., in combination with Section 12.1-05-03, N.D.C.C., which contains the kernel statement of self-defense, yields the following expanded proposition: A person's conduct is excused if he believes that the use of force upon another person is necessary and appropriate to defend himself against danger of imminent unlawful harm, even though his belief is mistaken. 4 Thus we have a statement of the first element of self-defense, i.e., a person must actually and sincerely believe that the conditions exist which give rise to a claim of self-defense. See Vol. I, Working Papers, Comment on Excuse, at 271-272 (1970). See also State v. Jacob, 222 N.W.2d 586 (N.D.1974); Hazlett, supra, 113 N.W. at 380.

From the next sentence of Section 12.1-05-08 we may infer that, besides being actual and sincere, a person's belief that the use of force is necessary to protect himself against imminent unlawful harm must be reasonable. Here, we have the second element of self-defense, namely, a person must reasonably believe that circumstances exist which permit him to use defensive force. See Vol. I, Working Papers, Comment on Excuse, at 271-272 (1970). See also Jacob, supra, 222 N.W.2d at 588-589; Hazlett, supra, 113 N.W. at 380.

If, therefore, a person has an actual and reasonable belief that force is necessary to protect himself against danger of imminent unlawful harm, his conduct is justified or excused. See Sec. 12.1-05-08, N.D.C.C.; Vol. I, Working Papers, Comment on Excuse, at 271 (1970). If, on the other hand, a person's actual belief in the necessity of using force to prevent imminent unlawful harm is unreasonable, his conduct will not be justified or excused. See Sec. 12.1-05-08, N.D.C.C.; Final Report, Comment on Sec. 608, Excuse, at 52 (1971); Vol. I, Working Papers, Comment on Excuse, at 271 (1970). Instead, he will be guilty of an offense for which negligence or recklessness suffices to establish culpability. See Sec. 12.1-05-08, N.D.C.C. For example, if a person recklessly believes that the use of force upon another person is necessary to protect himself against unlawful imminent serious bodily injury and the force he uses causes the death of the other person, he is guilty of manslaughter. See Sec. 12.1-16-02(1), N.D.C.C.; Vol. I, Working Papers, Comment on Excuse, at 271 (1970); Cf. ALI Model Penal Code and Commentaries, Part II, Sec. 210.3(a), Comment at 74-75 (1980); ALI Model Penal Code, Sec. 3.04, Comment at 15, and Sec. 3.09, Comment at 78-79 (Tent.Draft No. 8, 1958); Note, Justification: The Impact of the Model Penal Code on Statutory Reform, 75 Colum.L.Rev. 914 (1...

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