*1 Dakota, Plaintiff of North The STATE Appellee, HAAKENSON, Defendant
Earl Appellant.
Crim. No. 432.
Supreme Dakota. Court of North
Dec.
During the defendant the trial verdict, made for an advised a motion motion raises denied. Such a the evi sufficiency ap dence, denying it is not but the order Johnson, pealable. 88 N.W.2d *3 for a a (N.D.1958). He also made motion a raises the new trial. motion also Such evidence, question sufficiency of denying appealable. and the order it attempted appeal Defendant to trial, denying order the motion for a new appeal it was untimely, but since sixty-four days making of filed after denying Section order motion. N.D.C.C., ap 29-28-08, provides that “An Atty., Bis- Kelsch, State’s Thomas F. peal from a verdict or be marck, plaintiff appellee. and taken three rendi within months after its days sixty tion and from an order within Bismarck, Chapman, de- Daniel J. after it is made . . . .” appellant. fendant The defendant also appeals rehearing. VOGEL, Judge, on judgment, appeal judg- and his ment timely. charged with first- The defendant was manslaughter an information degree under addi- questions, defendant raises “in killing him Tidball charging with John evidence, to sufficiency as design a passion” “without a heat of claimed error the instructions of the Aft- the death Tidball.” effect of court, John particularly as to matters of self-de- trial, sec- guilty of a was found er fense duty and whether is a to re- under instruc- ond-degree manslaughter treat, in- propriety and also as to the of “second-degree man- defined tions structions as sec- to the lesser offense of by a committed slaughter” homicide ond-degree manslaughter. He also claims “culpable negligence,” is one of that a finding guilty second-degree by statute. permitted several definitions manslaughter defining under instructions that “culpable crime as one by committed Century 12-27-17, Dakota North Section negligence” necessarily constitutes ac- Code, “Manslaughter in first defines [the] quittal charged, crime which is man- “perpetrated degree” as a homicide without slaughter passion.” “in committed heat a death, in a design a to effect heat in a manner passion, but cruel and unusual clear, The facts are not con- because of weapon, dangerous or means of unless testimony they may flicts in the but committed such circumstances briefly summarized: justifiable as constitute homi- excusable or and his —The defendant wife live “Manslaughter (subsec. 2). cide” in [the] They wooded area south of Bismarck. degree” 12- second defined Section trespass N.D.C.C., previously had trouble 27-19, “killing as a of one human ers, parties, and an act, loud procurement, nocturnal being by agency, noyances nearby. night which, On the culpable negligence of another un- they guests, Sweep, had Mr. and who provisions chapter, Mrs. der the of this is not left at about m. own vehicle. 3 a. their manslaughter murder nor the first de- A short distance from the Haakenson gree, justifiable nor nor homi- excusable home, traversing on the while a curve cide.” road, people road, Sweep I. THE young- saw SCOPE OF REVIEW argument with got into an stopped, and We are met at outset the State’s them, Haakenson and returned to the claim that have nothing to review. said, purpose, as for the either house Pointing to the facts that wife, or, young people calming his purported appeal from both the order said, get reinforcements. denying motion for new trial and the n —Haakenson judgment, then re- Sweep Mr. that the motion for new in- scene, although (as allegations turned to the cluded of insufficiency of the equally known another alleged evidence and Haakenson) error in the instruc- tions, route home available from the Haakenson motion for new trial Sweep unimpeded. late, to the home was At was argues too previous confrontation, appeal the scene denying abortive the order boys teenage in the who were involved judicata new trial makes the res *4 Sweep precludes first encounter joined by were of review all matters raised in decedent, persons, including older the the motion for new trial. The State cently discharged Navy. from argues the One of arewe therefore restricted in persons the older shotgun. had a only our appearing review to matters events thereafter are much in dispute, roll, but judgment the of face the and cannot appears it young people one of the at- review the evidence or the instructions. tempted, pretended, shotgun, or to fire the argument While such an has merit toas struggled another possession with him for O'Callaghan, civil cases v. 77 [Marsden it, and young several the people made 522 (N.D.1956)], unper N.W.2d find menacing movements toward the defend- suasive criminal cases. ant, who had pistol fired his over their upon heads arriving at the scene. Several support its argument, In the State fired, shots by were all of them the de- McClelland, 665, cites 72 10 State v. N.D. fendant. One shotgun, bullet the struck Emmil, N.W.2d 798 State v. 172 (1943); perhaps another (or tempo- one) same (N.D.1969); 589 N.W.2d v. Wil- State rarily deafened young one man who fell to son, 1966). 106 In (N.D. 142 N.W.2d State in such a fashion as to lead McClelland, v. of the suffi- others to injured, believe was and the ciency presented to evidence was final discharged bullet by the defendant by a motion for lower court either new killed decedent, who was unarmed but guilty. for It or advised verdict close to the defendant at the Ballis- time. sufficiency was that the evi- held tic evidence was to the effect that the bul- Supreme Court. dence not before the was let was fired at a muzzle-to-body distance Emmil, appeals supra, State v. both of two inches or less. motion (from denying order judgment) new trial and from the were —According Sweep, at the moment late, nothing for taken too so there was before fired, the fatal shot was “two kids Supreme Court to And in review. State v. trying were get defendant, at” the Wilson, supra, denying the order mo- the defendant swinging at them with from, appealed new trial was not right hand, holding while pistol appeal judgment was tak- hand, his left and the ap- third man was late, so, again, en obviously too Su- proaching the defendant from a few feet True, preme it. nothing Court had before away, holding barrel, the rifle like a language State to the v. Wilson contains club. One the kids “trying get at” effect that appeal failure to from order the defendant was the decedent. denying the motion for trial “alone new —The defendant claimed the prevented homicide would appellant from rais- justifiable, in self-defense. ing evidence,” sufficiency but 398 obviously attempt appeal
this is no the order dictum where no made, anything denying such motion this court appeal judgment at all sufficiency fully considered the of the evi- else. again. will do so here. dence We many court has held times This Perhaps approach difference be- sufficiency of that it not review the will civil and criminal cases arises in tween has the matter been the evidence unless language because of the of Section by a brought the lower court before either 29-28-27, N.D.C.C., fol- which reads as new trial or a motion for motion for a lows : refusing verdict. Decisions advised be sufficiency of the evidence consider the “Upon appeal taken the defend- in the trial cause the was not raised matter from a judgment, ant verdict or su- Lende, 190 N.W.2d court include State v. any preme may intermedi- review Haider, 150 N. (N.D.1971); 52 State v. ruling which involves ate Timm, 146 71 State v. (N.D.1967); W.2d merits or which have affected the Eli, (N.D.1966); v. 62 552 State N.W.2d adversely judgment verdict or to the de- Mostad, v. 1954); State (N.D. 469 N.W.2d fendant.” 73, (1940); 910 State v. 70 N.D. 291 N.W. 241 Johnson, N.D. 278 N.W. As duty to the of the Su Fahn, (1938); preme 53 N.D. Court to consider errors instruc Glass, (1925); appealed N.W. 67 State v. tions where the *5 (1915). N.D. 151N.W. 229 the denying but not order the motion for trial, new we is believe the law even more ap these cases the All of illustrate McClelland, Even in supra, clear. State v. applicable plication basic principle, of the relies, upon which the State the refusal to cases, a to both criminal fair civil and that propriety consider the of the instructions opportunity given be to the trial court must upon was based the defendant’s failure to any it alleged correct error before is point court, the raise the lower appeal. grounds raised as for is But upon any principle claimed of res judicata. requiring a the difference between many true of of the same other cas court, to be in the trial the raised and rule es cited above. the the effect advocated State here to hold alleged that the We error in in- appeal that a an or defendant must from law, is a (while structions matter of denying raising der motion issue or the appropriate be raised in some fash- else he cannot have it under an considered ion in the can lower be reviewed court) appeal judgment. many from the haveWe upon appeal judgment, just an from the as former, latter, the times held but never the sufficiency of the evidence can. in criminal cases. Gill, (N.D. In Under State v. the N.W.2d 791 new North Dakota Rules 1967), Procedure, appeal judgment appeal was from the of Criminal an will rare ly alone. No motion for trial taken from denying a new be an order a mo court, trial, appeal made the lower but a motion for for new since an (although judgment bring up directed verdict was made will for all review provision had of no for directed verdict in claims error or and rulings cases), properly criminal and court considered raised court and trial verdict, it as a for motion an of a making timely advised and for motion new trial fully appeal considered the sufficiency postpones evi- time for of from the Dietz, dence. judgment days entry until ten after 115 N.W.2d again (N.D. 1962), appeal denying Appeals from the the motion. alone, judgment and, although denying for a motion motions for new trial orders will a directed verdict ordinarily appropriate only was made and denied be where the
30Q final determination order itself is a self-defense no more violence may be action, trial on than necessary as a motion new used under all the cir- cumstances, newly discovered evidence necessary but it is not appeal from the at the denied after the time time of the commission of the acts self-defense, person passed. has Rule N.D. so acting See 33, F.R.Crim.P.; R.Crim.P., actually danger, and Rule 8A self-defense so Practice, 33.02(1) long person acting Federal Secs. Moore’s self-defense Practice, actually Federal (2), danger, and 6A Moore’s believed himself (2), (3). 59.15(1), upon Secs. commits the act appre-
what believes to be reasonable himself, danger hension of resulting hereafter for an The touchstones from the commission of some overt act any proper should appeal on issue effective antagonist, towards him appropri the matter has been (1) apprehends danger. such ately in the trial court that the raised so it, intelligently rule can on person “A attacked need not retreat appeal a valid there be (2) that exercising right of before self-de- traps for unwa judgment. Any However, fense. claim of self-de- ry appellate road to the courthouse maintainable, fense is not where the De- should be eliminated. ample fendant full opportunity had safety to retire thus avert crime. THE APPEAL II. THE MERITS OF you, “If Jury, Members believe sufficiency of evi As to the from the evidence that at the time the dence, summary giv the brief the facts alleged Defendant is to have shot John many en that there were fac above shows Tidball, decedent, the circumstances province within peculiarly tual issues surrounding him were such would certainly inference jury. While reasonably in his justify or induce mind reasonably be drawn of innocence could *6 an honest in danger belief that he was evidence, fact not that does decedent, receiving John an present by law review Tidball, harm, great bodily some and appellate if there are other facts doing in that Defendant what he did reasonably justify an inference of solely instincts of acting self Here, guilt. are conflicts preservation, is then the Defendant aggressor, whether defendant was guilty you and find. should so opportunity to avoid whether he had or before it com after confrontation “Moreover, duty it is the since menced, justified he was in dis whether show, instance, in that the weapon, weapon charging the whether acting in Defendant was not self-de- passion a heat of or as a re was fired in fense, I charge you you acquit that must sum, and, culpable negligence in sult of you are Defendant unless convinced guilty or innocent. We whether he beyond a he reasonable doubt that hold was sufficient to raise a the evidence acting If in self-defense. there is by jury. for determination factual issue mind, any your in reasonable doubt after and consideration of evidence these problem Our arises the instruc- instructions, that the Defendant was act- tions. The to self-defense ing in self-defense at the time of the al- in full retreat are set out as follows: Tidball, leged shooting of that John in favor charge you, Jury, “I Members of the doubt must be resolved you find that the doctrine self-defense or self- Defendant and must him not upon necessity, guilty. protection is founded
400 generally they than that were more tecnnical are now.
“You are instructed correctly The first right deadly force self-defense sentence states the law to use Swift, aggres- is of North Dakota. 53 N.D. is not to one who State v. available However, provokes (1926). sor 208 388 second conflict. N.W. sylla is taken provokes if a conflict thereafter sentence verbatim from the one who Lehman, good bus from it in faith and in- the court State v. withdraws adversary by (1919). or actions forms his words N.W. N.D. conflict, and Lehman defendant claimed he had that he desires to end the case the decedent, justified pursued, he is first been he thereafter assaulted point might using deadly force to himself this court held at that he save that right of danger from imminent of death or seri- exercised self-defense. that the defend- bodily harm. But the showed ous evidence thereupon pursued the decedent into a ant “If the Defendant aggres- was not the door, house, attempted to down the break sor, grounds and had reasonable to be- through couple an interior door a shot actually lieve did believe that he was times, gaining en- finally succeeded danger imminent of death or serious killing the decedent. Under trance bodily harm from which he could save circumstances, held that those this court only by using himself deadly force prior right defendant’s of self-defense against assailant, had the existed, ag- longer became the no and he employ deadly force to defend he “had gressor of the fact in view By ‘deadly himself. force’ is meant ample opportunity to retire and full force is likely to cause death or safety and thus avert crime.” bodily serious harm. principle correctly stated This later on the instructions “In order lower court the Defendant to have provokes a conflict justified been that “if one who state the use deadly force good from it in faith self-defense, thereafter withdraws pro- must not have adversary by or ac- and informs his words voked the assault on him or have been conflict, aggressor. tions that he to end the desires words, Mere without more, he is pursued, justified and he is do thereafter provocation not constitute aggression. using deadly force to save himself from danger bodily imminent of death or serious “If evidence of present, harm.” the State prove beyond a reason- able doubt the Defendant did not But, para as we read the second act in you self-defense. If find that the graph quoted, interpreted above it can be *7 State has prove failed to beyond a rea- by jury stating a person as that a attacked sonable doubt that the Defendant did not need himself, not retreat before defending act in self-defense, you must find the if but he is a defendant and an oppor has Defendant guilty. not words, In other if tunity place to retire safety, to a of you .have a reasonable doubt whether or This, course, do must of so. is not not the Defendant self-defense, acted in law. your verdict must not guilty.” sympathize While we with the district
judge attempt in his to reconcile the ex- It paragraph is second quot tremely technical statements of State v. ed above which creates problems. the most Lehman, Swift and State v. must we rec- The defendant specific made objection ognize that the instructions prejudical- are this language. It is ly obvious that they trial erroneous where advise jury court was attempting to reconcile some de that this defendant could not claim self-de- cisions made days long ample if he fense had an opportu- full past when pleadings both nity place to retire to a safety. We
4Q1
alone,
ground
12-06-06, N.D.C.C.,
on this
requires
therefore reverse
such an
since
and re-
the instruction
erroneous
instruction. It reads:
subject
lated
to a
was central to the
distinguished
a crime
“Whenever
is
case,
and therefore affected
substantial
degree,
jury,
into
it
if
convicts the
Maresch,
rights
defendant.
State v.
defendant,
degree
find the
must
(1947).
1
75 N.D.
27 N.W.2d
guilty.
crime which he
Whenever
a
guilty
against
verdict of
is rendered
decline to
the dissent in
join
We
upon prosecution
for
accused
a
homi-
ruling
a
that
as matter
law
Haakenson
cide,
jury
find the degree
must
aggressor.
was an
This is a
for
verdict,
judge
thereof
its
and the
jury
proper
under
instructions.
punishment
determine
be in-
prescribed by
flicted within the limits
said,
While, as
have
we consider the
we
law.”
conviction,
evidence sufficient
it
jury may
that the
ac-
likewise true
have
Whiteman,
See State
79
528
v.
N.W.2d
quitted the
if it were
for the
defendant
(N.D.1956).
misleading
fact that the
instruction.
ample
evidence
for a
does
conviction
course,
plain
Of
if it is
beyond
requirement
of a fair trial.
alter the
doubt
that
the defendant could not be
Schlittenhardt, 147
v.
N.W.2d
guilty
degree
of a
of crime
lesser
(N.D. 1966).
undisputed facts,
then it would not be
error to
omit
instruction as to the less
cases,
And,
we
more in-
in civil
are
Woods,
degree.
er
State v.
24 N.D.
permit
in case of
clined to
a new
But,
(1912).
as we
N.W.
deny
Linington
See
doubt than to
one.
pointed
above,
out
we believe that the jury
(N.D.
County,
ing aggres and the fact one’s against sion cir party one other are TEIGEN, Judge (dissenting). can cumstances which consider right of deciding whether that under agree Judge Knudson I Blackmar, 1 Devitt & Federal exists. See of this circumstances the evidence and the Ed., Jury Instructions, 2d Practice self-defense, con- case the instructions 43.21, It is better flee than Sec. 43.23. whole, nor not erroneous are sidered kill, required it flight is not but my further conclusion prejudicial. It danger. continues increases in this record re- that there is no evidence on self-defense be quiring that instructions suggest that first sentence We also any error consisted given. If there was *8 quoted penultimate paragraph of the above However, such giving the instructions. of same sec- for the reason the erroneous and, it since defendant error favored the paragraph ond is and should be of not complain favor, about in his he cannot was any future instructions. 612, Mich.App. Griner, People 30 it. v. (1971). 800 186N.W.2d instructing of On the to fit the be tailored must manslaughter, Instructions second-degree to believe in no evidence There is of the clearly facts case. correct. Sec- the court was lower 402 error, which, infer technical could retical or or error jury from which the case this reasons, not, did not for other is not to and calculated the defendant was all be, jury the to an aggressor. Under lead return erroneous ver- the to
continue dict, law the does not constitute a given, instructions self-defense 11,013 correctly Comp.Laws 1913, reversal. clearly and aggressor an § as to 29-28-26, the in- N.D.C.C.]; two of v. Although paragraph State [Section stated. Tracy, 498, 1069; cor- 34 may not be N.D. 158 N.W. structions law, isit )t of the n ijt general statement n as a rect in this facts of the the state correct 29-28-26, N.D.C.C., Section states: specifically “defendant" word as the case who, in case defendant in this to the refers hearing appeal, supreme “After an of the doctrine of have the benefit to give regard must court without and self-defense, required to withdraw excep- to technical errors or defects or actions, adversary, words his inform do not tions which affect the substantial conflict, and to end the desired that he parties.” rights of the fear, majority, I pursued. The thereafter challenged instruc- upon the looked have here are not with a factual We involved law, and, of general proposition as a in his situation in which the defendant was it. justly criticized light, have home, business, his of office his in this applied facts However, to acting performance of nor was the fol- light of case, particularly duty prevent his to make an arrest or instructions, do it could clarifying lowing The on a escape. altercation occurred ne- jury, of no harm. The defendant public highway point at a the de- evidence, must cessity, in view voluntarily gone, fendant had armed with in this the instruction to the facts applied revolver, purpose confronting for the of alone. Further- to those facts case and group youths friend, whom Mr. his instruction, and all more, construing Sweep, had informed him earlier had given on the doctrine Sweep’s impeded high- progress upon the self-defense, clearly it is still more made way. youths The engaged in were an out- preju not appear that defendant was party through door a wooded area Carter, 195 50 N.D. diced. highway passed, Mr. when held: (1923), this court N.W. Sweep attempted Mrs. had earlier pass by, youths, them, or some of were in the inaccuracy defectiveness or “Mere process in the of dragging loga or fallen necessarily sufficient charge is across the highway replenish tree their be made to It must justify a reversal. This bonfire. action caused the first en- a rule misstated appear that Sweep counter. then Mr. Mrs. drove particular in a substantial law and, back home within a defendant’s appear, an examination minutes, Sweep few defendant and Mr. charge, that misstatement entire Sweep’s went to the scene automo- Mr. arriving to mislead the calculated The defendant took his revolver bile. upon question submit- some at a verdict stopped high- The on the him. automobile states ted to it. An instruction proximate way vicinity in the first incorrectly inaccurately or even the law got The confrontation. two men out portions may part, cured alighted car. correctly state the charge which Sweep side Mr. left. Hoff, 150 N. law. State v. N.D. hand, revolver in defend- his With Likewise, in- 929; W. C.J. high in ant held it the air and fired one or stating fully the law struction warning youths shots. more A number of (cid:127) subsequent by a instruction be cured A were in immediate area. number *9 completes moving Theo- it. them were toward the which car. C.J.
4Q3 fired diate order warning appeal a reversible on from shouted defendant shots, judgment 29-28-27, he a declaring that Section N. warning make an This provides: D.C.C. section and had come deputy sheriff Profanities, and taunts vulgarities arrest. “Upon appeal taken the defendant exchanged between the were supreme from verdict or judgment, a however, defendant, young men. The may any court review order intermediate The deceased press forward. continued ruling or which merits or involves the left and its the car from toward came may which affected verdict He was the front thereof. moved toward adversely judgment to the defendant.” approached, the defend- As he not armed. kill- range, fatal shot at close fired the ant a similar governing We have statute civ- through the deceased with a bullet ing the N.D.C.C., 28-27-28, appeals. pro- il Section heart. vides : brought intentionally The defendant appeal “Upon an judgment, from a provoked difficulty which He ensued. supreme any interme- review There no evidence occasion. is diate order determination of the court could infer that the defend- which below which involves the merits and nec- ant withdrew or a desire announced essarily judgment appearing affects the forward, peace. is clear It he continued upon the record or returned transmitted demands, pressing during his time court, the district the same whether ” he fired revolver at least three times. * * * excepted is to or not. The evidence on this not con- issue is construing civil we held statute The defendant has not established a flict. Mevorah, 59 N. Goodman 79 N.D. makes the case which doctrine of self-de- (1953), W.2d follows: acts fense available His amounted him. fault, legal provoking difficulty
ato “Where motion for a new trial made and, having provoked which ensued and denied before judgment is rendered difficulty, resulting af- continued the denying and entered the order a new fray aggressor point as an to the appeal trial is reviewable on an from the the deceased. I shot find no evidence judgment.” justify the record to an instruction of error, any If there self-defense. But giving an instruction on the consisted denying an order for a “Where motion self-defense, error doctrine but such ap- judgment trial made new after of the can- was in favor defendant and he peal judgment from the alone not does complain about it. bring up denying for review the order new trial.” agree majority I that the suffi- ciency alleged er- evidence and the grants An a new order or refuses ror in instructions on this are reviewable appealable is an in both civil appeal judgment How- alone. 28-27-02(4), and crim- (Section N.D.C.C.) ever, agree scope I that the do 29-28-06, defendant, (by inal Section appeals in is differ- criminal cases view on State, N.D.C.C., 29-28- Section appeals It that on cases. ent from civil N.D.C.C.) The statutes actions. sufficiency that the conclusion my appeals harmonize both criminal civil in- in the and the claimed error evidence in the a difference and I see no reason for case be- are reviewable in this structions permitted in this court scope of review for a denying motion the order cause thereof. a result were trial, in which these issues new entry Further, point in both prior I raised, wish out entered appeals judg- interme- criminal became an civil and thus *10 maintainable, ment, sufficien- questions of law or of the where the defendant ample opportunity on an full retire cy be had of the evidence can reviewed to a appeal safety the ne- and thus avert the judgment from the without for a new crime. cessity having made a motion trial, raised providing those were issues inadequacy part An in- one of the appropriate fash- upon and ruled in some relating struction to self-defense ion in 28-27-27 the lower court. Sections by parts cured of the instruction 29-23-11, is no Thus N.D.C.C. applicable adequately explain which trial after the necessity to move for a new 519, p. law. 40 Homicide § Am.Jur.2d of suf- verdict in order to raise issues paragraph of the drawn instruction questions or ficiency of the evidence er- question prejudicial into here was not pro- appeals, law in or criminal either civil light when read in of the other ror instruc- brought viding the matters were before given subject tions on the of self-defense. objection, ex- appropriate trial court appears introductory paragraph to be This upon by ception or motion and ruled nature, amplified overview is which prior entry of the final trial court to the paragraphs of the five six instruc- judgment. tions, which state: opinion if my For these reasons is generally are instructed that You denying the order the motion for a new deadly right to force self-defense use subsequent trial had been entered aggres- is is the not available to one who conviction, entry judgment of of the final However, provokes the conflict. sor order,
the issues includable in that provokes if one a conflict thereafter who taken, ju- appeal which no became res good and in- from it in faith withdraws appeal from dicata and not reviewable on adversary by or actions forms words alone. conflict, end the that he desires to pursued, justified is thereafter he is
KNUDSON, (dissenting): Judge using deadly force to save himself danger of death or from imminent seri- purpose disagreeing It serves no bodily ous harm. majority of what on judg- appeal only viewable on an aggres- not the If' the Defendant was ment as the that were effective at statutes sor, grounds had reasonable to be- appeal supersed- the time of this have been that was actually lieve and did believe Appellate Proce- ed the new Rules danger of death or serious imminent 1, dure became effective March save bodily harm he could from which per- appeal after the in this case using deadly force only by himself fected, ap- govern and thereafter all will assailant, right to against his he had the peals. employ deadly force in order to defend By “deadly meant force” is himself. However, agree I cannot with the ma- likely death force cause jority holding instruction bodily harm. serious prejudicial self-defense erroneous and defendant, requiring to the that the case be given The correctness remanded for a new trial. governing is determined rule applied situ- right to the of self-defense The claim is made that a in- Am. developed by the evidence. 40 ation struction is being erroneous inconsistent. p. Homicide 772. We § Jur.2d person A in order attacked need not retreat be- therefore review the evidence given fore exercising of self-defense. determine whether- the instructions However, the claim correct. were *11 automobile, pany’s testimony of and that Dennis Haakenson oc- the will review We cupied passenger seat in for the the and witness front. Sweep, eyewitness defendant, testimony the presented who They stopped young people, close to the to the defense. favorable most on, lights with the to see if “trying car recognize any Earl At could of the kids.” and his wife Sweep that he testified point said, this might Haakenson “We evening spent July latter the the on,” going got well find what out residence, de- 24 at the Earl Haakenson side, out of on the passenger the car while approximately parting for at Bismarck Sweep got side, out on the driver’s Sweep departing, after Shortly a. m. 3:30 said, stood behind the door. Defendant standing people young encountered several going people young “What’s on?” The ap- road who car on the moved quite profane, were abusive and and their inquired, proached. He seems to be “What language carried a kill threat to both met with a re- the trouble?” and was Sweep and the defendant. There was no profane language sponse of and abusive need get for them to out of the automobile wife, re- against him and his to which he place, the and since youths first the out- sponded in like He then returned to kind. acted menacing numbered them and in a. residence, de- the Haakenson where told manner, as to raise their such fear for they, Sweeps, had that the “some fendant safety, they Sweep should have retreated. down at the corner and that there trouble testified, “Immediately people walk- started people blocking the road.” were some ing toward the car and my off to left on Sweep told his testified that defendant bank, the the bank, and below a fellow was sheriff, Sweep the that wife to call coming up carrying shotgun.” A reason- him the Haakenson to return with to asked man should have was a able known this probably “because he knew some of corner situation, dangerous one that called for re- something and be able the kids or [would] argued treat. The defendant that orally résponse help way.” me in In to some position Sweep of the defendant and of Sweep help get request by back this automobile, in relation to the and who was sug- home could to their Haakenson have driver, known, was not nor whether arrived, they the sheriff gested wait until possibility retreat. How- was Sweeps or told the of the alternate route ever, testimony Sweep definitely to return to Bismarck. He did not. places near the of the car parties door Then, testified, Sweep Earl “and then Sweep and that ob- was It is driver. if thought asked me I having only left car seconds vious that [Haakenson] said, no, gun take a before, should and I we didn’t got have in and they could back ” Haakenson, . nev- gun left, need a . . . circumstances, quickly under the more ertheless, Sweep a loaded revolver. testimony took got than The they out. whole continued, go up “then we decided back Sweep indicates neither nor Haaken- going to the corner find what’s out son more than a few feet was ever Again, Sweep Haakenson could on.” door of the nearest automobile. arrival, have awaited sheriff’s Tidball, carrying It was who was John Sweeps could returned to Bismarck shotgun Sweep, who aimed at alternate via the route. said, “I off.” will blow heads [their] gun Sweep Sweep drove his back “froze and stood there and automobile Sweep the car jumped the altercation had taken went behind click.” door, lover, not a place. Although argued describing himself as “A the defendant fighter,” apparently ready to orally that there is no evidence as to who who was driving point treat. He fired automobile —a Haakenson not. shots, Sweep testified that he first of or four three last crucial — automobile, that it his com- which Tidball. drove killed John apparent pro- It is that the defendant the defendant of whether here, that the voked the confrontation law non-aggressor is aggressor or anwas that he requires therefore the evidence. withdraw determine communicate his withdrawal to have found jury must case the parties; but that he did not do so. Under aggressor and defendant was it is doubtful whether such circumstances the defense self-defense. entitled to *12 self-defense, be- he was entitled to claim case, facts in this a of the From review provoked argument the and failed cause finding defend- in jury was correct circumstances, to retreat. Under all of the manslaughter in the second guilty of ant clearly challenged here instruction degree. prejudicially erroneous. If Haakenson provoked had been attacked and had not accused to retreat is requiring The rule confrontation, may have instruction at fault he was especially applicable where ambiguous any But prejudicial. been situa- dangerous in the in himself getting which, any- existing if ambiguity is one 127, p. 40 Homicide tion. § C.J.S. advantage. thing, works the defendant’s to need confrontation It is obvious jury in the of the It could have raised minds place, in first developed not have of whether defendant need not impend- points warnings of that at several required any to doubt retreat. Since obvious, and been ing danger have should Haakenson, against resolved there is present. escape was opportunity to prejudice any no or error in this found pressure apply to Haakenson continued Yet particular instruction. bullet was fired. until fatal summary, part of the instruction 964, 114, page In 40 Homicide § prejudicially here is erro- C.J.S. under attack following is found: neous, is, if it but cured the whole of correctly the instruction which states the authorities, in a number of applied law on to the facts enumerating the of self-de- elements in this case. fense, following: referred to opinion majority The recites that the de- provo- aggression or (1) The absence previous- and his wife had trouble fendant part slayer pro- on the cation ly trespassers, parties, with loud and other voking continuing difficulty. (2) or However, there is no nocturnal noises. ev- slay- The actual and honest belief of the previous record to show en- idence danger er that he was imminent the defendant and the de- counters between death, harm, felony, great bodily or some ceased, previous or to show trouble necessity and that there was a to kill trespassers, parties loud and other noctur- (3) order to save therefrom. himself noises, except that Mrs. Haakenson nal grounds The existence reasonable only yard in their to trouble testified slayer duty The such belief. (4) occasions, people other when the other danger. to retreat or avoid the The acts gun had into the air. defendant shot justify accused do and plea depend primarily of self-defense any that the de- Nor is evidence secondarily on on his own conduct and people in fendant had trouble with the conduct of deceased. justify is no There evidence the area. leaving yard his home and his action required The stated are elements above Sweep Mr. had those with whom People seek out in a number of states. be shown was another altercation. There Townes, had an Mich.App. 44 205 N.W.2d v. by which to the defendant Daniels, street known 301 (1973); 258 Commonwealth v. home Sweep could return to his Johnson, (Pa. 1973); 277 Mr. A.2d confronta- further Bismarck and avoid a (1967). Minn. N.W.2d
4Q7 boys youths, aggressor provokes who is with the or However, did provokes defendant not inform Mr. conflict. if one who which the Sweep. conflict thereafter withdraws good faith and informs adversary upon a majority suggests that re- words actions that he desires to there is no absolute trial the law is that conflict, end the and he is thereafter a victim of duty to retreat on the pursued, justified in using deadly aggressor, but reasonableness force save himself from imminent the fact standing one’s treat or danger of death bodily harm. serious against the oth- aggression party one Paragraph 5 of the court’s instructions only er are circumstances which 43.21, paraphrases reads: § deciding can consider whether of self-defense exists. If had reasonable grounds to actually believe and did be- However, such in- it is doubtful whether *13 danger lieve that he was in imminent As applicable in this case. struction bodily death or serious harm and that ap- before, it is evidence stated necessary deadly repel force was such aggressor parent that was the or danger, required he was not to retreat or confrontation, and the provoked the safely he could to consider whether The have found so. determination He was his entitled stand treat. question of aggressor was the who and use force rea- such suggested The instruc- jury. fact necessary under sonably circum- position regard to fails to state a with protect or himself stances to save his life aggressor. Paragraph 4 of bodily harm. serious self-defense court’s instructions states that aggressor is not available one who is However, if the defendant could have provokes the conflict unless with- so, safely retreated did not do his but adversary of in- and informs his draws circumstance failure to retreat conflict, opinion end tent to but consider, together you with holds, effect, that this is majority circumstances, determining all other prejudice it not to overcome the sufficient repelling whether he went farther so, the paragraph If this is finds apparent, than he danger, real include a suggestion the Court should justified doing the circum- regard separate on instruction retreat stances. aggressor. to an recommended These majority cites Devitt and Black- are cited Devitt and Blackmar which Instruc- mar, Practice and Jury Federal support its recommended majority 43.23, 43.21, sup- 1970), (2d tions retrial, ed. support §§ do instruction Paragraph 4 of port proposed of its rule. sup- majority, but recommendation attack ais the court’s instructions under given the court. port the instructions cited, second copy of the section verbatim instruc- reiterated It must be 43.23,which reads: § er- were not by the trial court given tions deadly when consid- roneous, prejudicial, force Generally the to use is not available one ered as a whole.