At 1:11 AM -0500 5/29/04, Robert Woolley wrote:
>> There were a couple of meth heads in his front yard - the father of his
>> wife's daughter and the father's girlfriend. They had come onto his property
>> to argue their custody case. They tore up his front yard with their car,
>> cursing and threatening him and his wife all the while. Then the woman
>> advanced on him, still cursing, with her right arm behind her back (it
>> turned out she was holding a Jack Daniels bottle behind her back though my
>> friend did not know at the time what if anything she was holding), even
>> though my friend held his pistol in plain view at his side. At one point, my
>> friend yelled, "That's far enough, damn it!" and fired a single round into
>> the turf to the right of his feet. That put an end to the physical
>> confrontation, but resulted in his prosecution.
>>
>> I'm sure most will agree with me that he ought not to have been even
>> charged, much less prosecuted.
>
> Not I.* From the facts you give, I'd say that he should have gone back
> inside the house at the point he felt sufficiently threatened to draw his
> gun. If instead of carrying it and drawing it, he had actually gone back
> inside to retrieve it, then came out again, he was just asking for legal
> trouble.
This is the unsinkable "duty to retreat" doctrine. Curiously, the Supreme
Court has several times struck down this doctrine on the federal level,
most notably in Alberty v. US, 162 US 499, when it struck down a lower
court instruction that:
...it is our duty, in the first place, to get out of the way of the attack,
and that is a duty springing from our own self interest, because if a man
can avoid a deadly result with due regard to his own safety, is it not
better for him to do it, than to rush rashly into a conflict where he may
lose his life?
Instead, the court ruled that:
...a man assailed upon his own premises, without provocation, by a person
armed with a deadly weapon, and apparently seeking his life, is not
obligated to retreat, but may stand his ground and defend himself with such
means as are within his control; and so long as there is no intent on his
part to kill his antagonist, and no purpose of doing anything beyond what
is necessary to save his own life, is not guilty of murder or manslaughter
if death result to his antagonist from the blow given him under such
circumstances.
The Court then quoted Beard v. US, 158 US 550 in support:
...we cannot agree that the accused was under any greater obligation, when
on his own premises, near his dwelling-house, to retreat or run away from
his assailant, than he would have been if attacked within his
dwelling-house. The accused being where he had a right to be, on his own
premises, constituting a part of his residence and home [was not subject to
a duty to retreat, contrary to jury instructions].
--
Escape the Rat Race for Peace, Quiet, and Miles of Desert Beauty
Take a Sanity Break at The Bunkhouse at Liberty Haven Ranch
http://libertyhavenranch.com
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