Defendant was convicted by jury of assault with a dangerous weapon, and sentenced to three years and two months’ imprisonment. He appeals, claiming the court’s instructions on self-defense were erroneous. The issue presented is whether an individual may claim the right of self-defense if he reasonably believed he was in imminent danger of only “bodily harm,” rather than “dеath or great bodily harm.”
The offense arose out of an altercation in a cafe in Willamina, Oregon, where the parties were seated in different booths. After defendant had been ridiculed by those in the other booth, he responded with profane language and one Aaron, from the other booth, went to defendant’s booth and grabbed defend- and with his hands, оr hit him, precipitating the fight. Defendant began to strike Aaron on the chest. Aaron received five stab wounds and, as a result, lost consciousness after the fight and was hospitalized for nine days. Defendant testified that he had been cleaning his fingernails with his knife prior to the time Aaron attacked him. He also stated he was swinging *380 “pretty ■wild” because he thought there were abоut four or five assailants. Defendant swore he didn’t know whether he stabbed Aaron, and, when he realized he had the knife in his hand, he threw it to the floor.
The court instructed the jury that a person аssaulted may use the kind and degree of force which a reasonable person in the same situation would have believed to be necessary to protect himself from great bodily harm; and, that if defendant “was acting under a reasonable belief that he was in imminent danger of either death or great bodily harm, and that it was necessary for him to use the knife in ordеr to avoid death or great bodily harm, he would be justified in his acts, and you should find him not guilty.” Defendant claims the instruction was erroneous.
The above instruction in effect told the jury that the defendant must have been in fear of “great bodily harm” in order to avail himself of self-defense. This was error. We hold that a person is entitled to defend himself if he is in reasonable fear of “bodily hаrm;” however, his defense must be reasonably responsive to the threatened harm.
Many Oregon cases have contained the statement that in order t-o assert self-defense the defendant must have reasonably believed that he was in danger of death or great bodily harm. For example, in
State v. Rader,
*380 “* * * [T]he words ‘great bodily harm’ have been a part of the vocabulary of nearly every * * * member of this tribunal who has written upоn the subject of self-defense: [citing 19 Oregon cases beginning with 1 Oregon].”
*381 Two Oregon statutes, OES 163.100 and OES 145.110, are pertinent to this discussion. OES 163.100, ① the justifiable homicide statute, justifies the killing of another by a persоn to prevent the commission of a felony upon himself.
Our Supreme Court has consistently held in justifiable homicide cases that the defendant must have reasonably believed that he wаs in danger of death or great bodily harm to be entitled to assert self-defense.
State v. Ruff,
“* * * Violence which rises to the degree of a felony is ‘great bodily harm’; viоlence which falls to the degree of a misdemeanor is not ‘great bodily harm.’ # • *”94 Or at 486 .
Fear of “great bodily harm” is thus a requirement in homicide cases, because the statute requires feаr of a felony.
OES 145.110, ② the general “self-defense” statute, justifies resistance by a person to prevent the commission of a crime against his person. This statute is silent on the degree of harm which must be anticipated by the person to entitle him to assert self-defense.
The Supreme Court has seemed to rule on one occasion that the defendant must fear “grеat bodily harm” in an assault and battery case. In
State v. Steidel,
State v. Swanson,
“In the matter of self-defense, the defendant requested the fоllowing instruction:
“ ‘I further instruct you that if in resisting an illegal arrest the person arrested is placed in danger of bodily harm, or in reasonable fear of bodily harm, he may protect himself from suсh danger or threatened danger with whatever means may be necessary to make that protection effective.’
“It was error tó refuse this instruction. A person has a right to defend himsеlf against an illegal arrest and to do so with such force as may be reasonably necessary to .repel the assault, involved in such wrongful detention, but the force used in defense must nоt be in excess of proportion to the *384 force -unlawfully applied in the attempt to arrest.”119 Or at 526 .
Idaho has a statute, somewhat similar to ORS 145.110, our general self-defense statute, which reads in part:
“Resistance sufficient to prevent thе offense may be made by the party about to be injured:
“1. To prevent an offense against his person • * Idaho Code 19-202.
State v. Woodward,
“ * * the act done by defendant was necessary to prevent the infliction upon him of a great bodily injury by the person alleged to have been assaulted by the defendant.’ ”
The Idaho Supreme Court reversed, stating that although in prosecutions for homicide the existence of danger, or apparent danger, to defendant of great bodily injury is a necessary condition precedent to self-defense, in prosecutions for lesser offenses it is not such a condition. Iowa also has a self-defense statute similar to Oregon’s, and follows the rule set forth in Woodward, as do New York and Texas.
We cannot tell in the present case whether the jury found defendant guilty because (1) they thought he was not in fear of “great bodily harm” and thus not entitled under the faulty instruction to assert self-defense, or (2) they thought his response with the knife was unreasonable and therefore he was not entitled to the benefit of self-defense. This is a determination within the sole province of the jury in a criminal case, ORS 136.320. Since they may have *385 based their verdict on the first ground, it is necessary to remand for a new trial.
The “Proposed Oregon Criminal Code,” Final Draft and Report, July 1970, prepared by the Criminal Law Revision Commission, succinctly sets forth the existing Oregon statutory and case law on this subject. It provides in language suitable for use as a jury instruction under present law:
“* * * [A] person is justified in using physical force upon another person to defend himself * * * from what he reasonably believes to be the use * * * of unlawful physical force, and he may use a degree of force which he reasonably believes to be necessary for the purpose.” Section 22, p 22.
“* * * [Notwithstanding the abоve, he] is not justified in using deadly physical force upon another person unless he reasonably believes that the other person is:
ft* # * ft $
“(3) Using or about to use unlawful deadly physical force [upon him] * * *.” Section 23, p 22.
Reversed and remanded for a new trial.
Notes
ORS 163.100:
“The killing of a human being is justifiable when committed:
«:*: ‡ % :*« $
“(2) By any person:
“(a) To prevent the commission of a felony upon him or upon his or her husband, wife, parent, child, master, mistress or servant.
$ $ * $ »
ORS 145.110:
“Resistance to the commission of a crime may be lawfully made by a person about to be injured or by any other person in his aid or defense:
“(1) To prevent a crime against his person.
«* * * *