Conner v. StateConner v. State
A mother, adjudged guilty of the manslaughter slaying of her son by use of a firearm, here appeals because the trial judge refused to give a jury instruction on “defense of home.” We affirm.
The mother аnd her mentally defective son shared living quarters. At trial she claimed he “pushed her down,” threatenеd to kill her and she did not intend the shot fired to strike him. The state presented evidence that the son was outside the house apologizing to his mother when the gun was discharged.
The jury was given a murder two instructiоn along with manslaughter, aggravated battery, aggravated assault, battery and assault. Instructions on justifiable and excusable homicide were also given, as was avoiding use of deadly force аnd finally retreat. However, the court refused to instruct on defense of home, because “both parties, according to the evidence, legally lived in the home and the court would rule [it] tо be bad law to allow either party to stand and not retreat.” We agree with the trial judge.
The defense of home instruction, here not given, reads in part as follows:
One unlawfully attacked in his own home or on his own premises has no duty to retreat and may lawfully stand his ground and meet force with force, including deadly force, if necessary to prevent imminent death or great bodily harm to himself or another, or to prevent the commission of a forcible felony. Fla.Stnd. Jury Instructions p. 64.
The retreat instruction which was given reads:
If attacked by another, even though the attack is wrongful, he has the legal duty to retreat if by doing so he cаn avoid the necessity of using deadly force without increasing his own danger, but a person placed in a position of imminent danger of death or great bodily harm to himself by the wrongful attack of another has no duty to retreat if to do so would increase his own danger of death or great bоdily harm. (emphasis supplied) Fla.Stnd. Jury Instructions p. 64.
In the case at bar we hold this latter instruction quoted, to be sufficient to meet the ends of justice especially in view of the quotation above emphasized.
Almost every jurisdiction aсcepts the “castle doctrine,” (see 26 A.L.R.3rd 1296, and 12 Wake Forest L.Rev. 1093), which is based on the premise that a man‘s home is his castle, where he may stand his ground and not retreat. As the nineteenth century сase of Jones v. State, 76 Ala. 8 (1884) asked rhetorically: “whither shall be flee and how far, and when may he be permitted tо return.” In effect, he or she is already “at the wall.”
Notwithstanding the foregoing, the rationale, of thе “castle” doctrine appears to us to be in immediate trouble when it is expanded and applied among members of a family, all lawfully on the premises and all lawfully claiming the home as their ultimate sanctuary. See Watkins v. State, 197 So.2d 312 (Fla.4th DCA 1967). The castle doctrine is of ancient origin and “... in its original applications it doubtless had in view only attacks from external aggressors
From this expanded version of the castlе doctrine we now recede, for it appears to us that, where both the antagonist and thе assailed are legal occupants of the same “castle,” neither one having the lеgal right to eject the other, the defense of home instruction need not be given.
We agree with a recent law review author, that human life is sacred and that due regard for it far outweighs any indignity оr cowardice involved in having to retreat from one‘s own family.1
It is a matter of common knowledge that a majority of all homicides are committed by close relatives and friends, many of thеse killings occurring in the home. Edwards, Murder & Gun Control, 18 Wayne L.Rev. 1335 (1972). This being so, we cannot but agree with the dissent in Common-wealth v. Johnston, 438 Pa. 485, 490, 263 A.2d 376, 381 (Pa. 1970) wherein the judge remarked that he “would not adopt a rule of law which more easily justifies the taking of a human lifе.” To us the saving of lives is the ultimate goal for law enforcement officers and the courts to achieve. Accordingly we see no reason why a mother should not retreat from her son, evеn in her own kitchen. Such a view does not render her defenseless against a member of her family gоne berserk, because the instruction on retreat, first above quoted, concludes, “but a person placed in a position of imminent danger of death or great bodily harm to himself by the wrongful аttack of another has no duty to retreat if to do so would increase his own danger of deаth or great bodily harm.” With that instruction, we certainly have no quarrel and it was given in this case.
We find no merit in the other point on appeal.
AFFIRMED.
DAUKSCH, J., and BLACK, SUSAN, Associate Judge, concur.