State v. Hilsinger , 167 Wash. 427 ( 1932 )

The instruction condemned in the prevailing opinion is not similar to that in State v. Meyer, 96 Wash. 257, 164 P. 926. There, the substance of the instruction was to the effect that a person seeking to justify homicide on the ground of self-defense was obliged to retreat from an assailant if he could do so without increasing danger to his life or subjecting him to great bodily harm, and only in case could he not so retreat could he safely invoke the doctrine of self-defense.

On the other hand, the condemned instruction in this case clearly and positively charged the jury that retreat was not necessary if the assault was so fierce and imminent that the person assaulted had good reason to believe, and honestly believed, that he or she could not retreat without manifestly increasing the danger to himself or herself, then such person was not required to retreat, but could repel force with force, even to the taking of life, if necessary; and if, in standing his or her ground and defending himself or herself, such person kills the assailant, it is justifiable homicide.

This instruction certainly was in consonance with the law as laid down in the Meyer case, supra, and which has been generally followed in this state. See cases there cited.

The instruction was in harmony with the testimony of appellant to the effect that the assault was fierce and imminent, and that she honestly believed she could not retreat without increasing the danger to herself. That, therefore, she did not retreat. Under such circumstances, she was not required to retreat, and the jury were so charged. The state of the evidence also renders the condemned instruction unprejudicial in any event.

Nor was there error in the instruction on confessions.

The judgment should be affirmed. I therefore dissent.