McLean v. Foisie

Bruce, J. (after stating the facts as above). The defendant and appellant complains that the instructions which were given by the court informed the jury that the measure of what constitutes a lawful resistance to an assault is “such force as is reasonably necessary to defend one’s self,” when under the decisions it is merely such force as “would have appeared to an ordinarily careful and prudent man to have been necessary at the time of the attack.” Generally speaking, the instructions which were given are open to this criticism, and we have no doubt held that the conduct of the person who is assailed and the amount of force which he uses is not to be judged by what is actually necessary under the circumstances, or even by what a reasonably cautious person might or might not do or consider necessary to do under like circumstances, but by what he himself in good faith honestly believes, and had reasonable ground to believe, was-necessary for him to do to protect himself, and that the reasonableness of his belief must be viewed from his standpoint, and he will be justified or excused if the circumstances are sufficient to induce in him an honest and reasonable belief that such force is necessary. See State v. Hazlet, 16 N. D. 441, 113 N. W. 374; Barr v. State, 45 Neb. 458, 63 N. W. 856; Kent v. dole, 84 Mich. 579, 48 N. W. 168; 5 C. J. 635. There is, however, to be found in the testimony of the defendant in [649] the case at bar no claim or pretense whatever that the biting of the ear was necessary, or appeared to him to be necessary, at any time during the controversy, either to his protection from personal harm or to the protection of his property. The defendant indeed not only positively denies the biting, but positively states that at no time was he afraid or excited, and that at no time was, or did he deem, biting to be necessary. The complaint charges the biting and the biting alone, and the justifiableness of the biting is the only point in issue. The instructions could not only have in no way prejudiced the defendant, but were more favorable to him than the facts of the case warranted. They, in short, left it to the jury to say whether or not the biting was reasonably necessary, when the defendant himself admitted that it was not. We can see no prejudice to the defendant therefore in the giving of the instructions. The judgment of the District Court is affirmed.