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 |
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.
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:
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...
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