WPIC 16.07 Justifiable Homicide—Actual Danger Not Necessary

Use this instruction with WPIC 16.02 (Justifiable Homicide—Defense of Self and Others) and WPIC 16.03 (Resistance to Felony), when appropriate.

The prior version of this instruction used the language “great bodily harm,” which appeared in earlier cases defining this defense. E.g., State v. Miller, 141 Wash. 104, 250 P. 645 (1926). The term “great personal injury” is now used, because it is the term utilized by RCW 9A.16.050(1). See State v. Walden, 131 Wn.2d 469, 475 n.3, 932 P.2d 1237 (1997) (noting confusion); State v. Freeburg, 105 Wn.App. 492, 505, 20 P.3d 984 (2001) (holding that term “great personal injury” should be used rather than “great bodily harm”).

RCW 9A.16.050(1) provides in part that a homicide is justifiable when committed in the lawful defense of the slayer, when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony or to do some great personal injury to the slayer and there is imminent danger of such design being accomplished. The WPI Committee is unaware of any cases that address the relationship between this defense and the element of imminent danger under RCW 9A.16.050(1).

This defense applies not only to self-defense but also to the use of force to protect third persons from apparent injury. See State v. Penn, 89 Wn.2d 63, 568 P.2d 797 (1977) (a person may defend another when the defender reasonably believes that the other person is in danger even though such belief may be later shown to have been erroneous).

It is not clear whether this defense applies when a person erroneously uses force to defend against an apparent property offense. The WPI Committee could find no cases addressing this issue.