WPIC 16.03 Justifiable Homicide—Resistance to Felony
11 WAPRAC WPIC 16.03Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 16.03 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Part IV. Defenses
WPIC CHAPTER 16. Justifiable Homicide
WPIC 16.03 Justifiable Homicide—Resistance to Felony
It is a defense to a charge of [murder] [manslaughter] that the homicide was justifiable as defined in this instruction.
Homicide is justifiable when committed in the actual resistance of an attempt to commit a felony [upon the slayer] [in the presence of the slayer] [or] [upon or in a dwelling or other place of abode in which the slayer is present].
The slayer may employ such force and means as a reasonably prudent person would use under the same or similar conditions as they reasonably appeared to the slayer, taking into consideration all the facts and circumstances as they appeared to [him] [her] at the time [and prior to] the incident.
The State has the burden of proving beyond a reasonable doubt that the homicide was not justifiable. If you find that the State has not proved the absence of this defense beyond a reasonable doubt, it will be your duty to return a verdict of not guilty.
NOTE ON USE
This instruction should be given in homicide cases in which there is evidence to support a claim that the defendant was acting in resistance to the commission of a felony upon the defendant or in the defendant's presence or upon or in a dwelling or other place of abode in which the defendant was present. If self-defense against a felony is involved, see WPIC 16.02 (Justifiable Homicide—Defense of Self and Others).
Use bracketed material as applicable.
Use WPIC 2.09 (Felony—Designation of) and WPIC 25.01 (Homicide—Definition) with this instruction. Use WPIC 2.08 (Dwelling—Definition), as applicable, with this instruction.
COMMENT
RCW 9A.16.050(2).
The common law requires that the use of force in the prevention of a felony must be limited to that which would be used by a reasonably prudent person under circumstances as they might appear to him. State v. Castro, 30 Wn.App. 586, 636 P.2d 1099 (1981).
Although the statute does not limit the kind of attempted felony that will justify a homicide, the deadly force appears to be limited to resisting felonies committed by violence such as those when great personal injury is involved or in which human life is threatened. In State v. Nyland, 47 Wn.2d 240, 287 P.2d 345 (1955), the court held that adultery is not a crime that imperils the life of the unoffending spouse or threatens personal injury and in no event may the life of a human being be taken to prevent the commission of an act of adultery. See also State v. Griffith, 91 Wn.2d 572, 589 P.2d 799 (1979) (unlawful trespass does not come within felonious activity envisioned by the statute); State v. Boisselle, 3 Wn.App.2d 266, 291, 415 P.3d 621 (2018), reversed on other grounds, 194 Wn.2d 1 (2019) (resistance to felony only applies where felony threatens life or great bodily harm).
In the context of a case in which instructions regarding self-defense and resistance to felony were combined, and in which the issue was the use of instructions that appeared to require the appearance of an “attempt” by the victim to kill or inflict great bodily harm upon the slayer, rather than “intent” plus imminent danger, the court held that the wording of WPIC 16.03 as it appeared in the second edition was a correct statement of the law. State v. Negrin, 37 Wn.App. 516, 681 P.2d 1287 (1984).
For a general discussion of whether the burden of proving a defense can be shifted to the defendant, see WPIC 14.00 (Defenses—Introduction).
[Current as of February 2019.]
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