State v. Miller

• Decision Date: 23 November 1926
• Docket Number: 20115.
• Citation: 250 P. 645,141 Wash. 104
• Parties: STATE v. MILLER et al.
• Court: Washington Supreme Court

250 P. 645

141 Wash. 104

STATE v. MILLER et al.

No. 20115.

Supreme Court of Washington

November 23, 1926

Department 2.

Appeal from Superior Court, Pierce County; Chapman, Judge.

Henry Miller and another were convicted of assault in the second degree, and they appeal. Reversed.

H. W Lueders and Maurice Langhorne, both of Tacoma, for appellants.

J. W Selden and J. A. Sorley, both of Tacoma, for the State.

MACKINTOSH J.

The appellants were convicted of assault, in the second degree made upon one William Thaut, and are entitled to a new trial by reason of an erroneous instruction given to the jury. The appellants' defense was that they were justified in using the force which they did in their own self-defense. The erroneous instruction reads as follows:

'In order to justify the assault, if there was an assault upon William Thaut, the defendants must show a necessity for the use of force to prevent an attempt by William Thaut against the person of Henry Miller, Sr., and that no more force was used than necessary in preventing such attempt. It is for the jury to say, under all the circumstances, whether the defendant Henry Miller, Sr., was about to be injured by William Thaut; whether it was necessary to use force in preventing or attempting to prevent such injury to or offense against, the person by the defendant Henry Miller, Sr.; and, if necessary to use force in preventing such offense against his person, whether more force was used by either defendant than was necessary. If you have a reasonable doubt as to whether the defendants or either of them used more force than was necessary to repel the assault, if you find an assault was made, then you should acquit such defendant of the charge against him.'

This instruction left it for the jury to say whether it was necessary for the appellants to use force in defending themselves, and as to the amount of force necessary for that purpose. This is not a correct statement of the law, for the jury might well have believed that the appellants were not justified, in fact, in using any force, or that they used more force than was actually necessary. The true test was what was the condition at the time the assault was made, and the appellants' right to resist force with force is dependent upon what a reasonably cautious and prudent man situated as were the appellants, would have done under the condition them existing. If the appellants, at the time...