Opinion of the Court
Quinn, Chief Judge:
A general court-martial convicted the accused of unpremeditated murder. On this appeal he challenges the correctness of part of the law officer's instructions on self-defense.
The accused was a steward aboard the U.S.S. FURSE. He shared a berthing compartment with Commissary-man First Class Gerald A. McCarthy and several other crewmen. About 1:00 a.m., November 6, 1968, he and McCarthy separately returned to the ship from liberty. They met in the compartment. As the result of an altercation between them, described differently by Government witnesses and the accused, the accused went to the ship's pantry. There he obtained two knives, one had a blade of about eleven inches and the other a blade of about five and three-quarters inches. According to the accused, he took the knives to protect himself against McCarthy, who was about his size but of heavier build. Armed with the knives, the accused returned to the berthing compartment. He testified that, "as . . . [he] stepped into the compartment," McCarthy came up to him and grabbed the big knife; McCarthy's action forced him "to fight to protect . . . [his] life." The fight ended when McCarthy collapsed and the accused ran from the area. About two hours later, McCarthy died, with the cause of death attributed primarily to shock resulting from loss of blood from penetrating wounds involving his liver and spleen.
At an out-of-court hearing to consider appropriate instructions on the issues, the law officer concluded that the evidence raised the question of self-defense as justification for the homicide. Several requests for particular instructions on the point were made by counsel; and defense counsel objected to a part, but the objection was overruled. The final instructions are set out in the Appendix; the part which is the subject of this appeal is the emphasized portion of the following extract:
"In determining whether the accused, in fact, honestly believed the degree of force which he employed was necessary for his protection, you may consider his age, education, training, experience and other personal characteristics and attributes, together with all of the facts and circumstances of the incident, as they appeared to him at the time. The question presented is whether, seen through the accused's own eyes, the situation was one requiring that he kill McCarthy to avoid death or serious injury to himself.
"You are advised that a person is not required to retreat where, being without fault and provoking the assault upon himself, he is at a place where he has a right to be. You are further advised that a sailor's bunk aboard ship is his home and if he is assaulted and improperly ejected therefrom by a shipmate he is under no duty to remain away from his bunk, but has a right to return thereto at will. However, the evidence tending to show that the accused had an opportunity to retreat safely should be considered by you, together with all of the other circumstances, in deciding the issue of self-defense." [Emphasis supplied.]
Relying upon United States v Adams, 5 USCMA 563, 18 CMR 187 (1955), and United States v Lincoln, 17 USCMA 330, 38 CMR 128 (1967), appellate defense counsel contend that the instructions are erroneous because "a man need not consider retreat from an attack in his own home." The contention has some support in dictum in Lincoln, but the rationale of both Lincoln and Adams is to the contrary.
In Adams, we held improper argument by trial counsel, which was adopted by the law officer, to the effect that a person attacked by another has the absolute duty to retreat as far as he safely can before he can rely upon deadly force in self-defense. We noted that trial counsel had advanced "the theory that the accused had no legal right to kill, without first showing that he actually retreated." Remarking that the "basis of self-defense is necessity," we went on to say that necessity depends upon the facts presented by the evidence and, quoting from United States v Troglin, 3 USCMA 385, 391, 12 CMR 141 (1953), we pointed out that " 'the possibility of retreat is only a part' " of the total evidence. The evidence showed the accused was in his own tent confronted by an intruder, who, according to a witness, would have shot the accused " 'if he didn't shoot' " first. We observed that in the circumstances revealed by the record the accused "had no obligation to retreat before defending himself against an armed intruder." The crucial point of the opinion was in the statement that "under the facts, the accused had no duty to stop to consider whether he might 'fly with safety, or . . . disable his assailant rather than . . . kill him.' " Adams, supra, at pages 567, 571. We, therefore, concluded it was prejudicial error to allow the court members to believe that the accused had a duty to retreat. Nothing in the opinion, however, indicated that, because a person is in his own home, the reasonableness and feasibility of retreat from danger need never be considered in determining whether he properly resorted to deadly force.
United States v Lincoln, supra, did not decide the problem presented by this appeal. In dictum, and in regard to the particular facts of the case, it was suggested that in the "privacy of an individual's home, retreat is not a factor to be considered by the court in connection with self-defense. . . . It is only when the accused is not at 'home' that retreat becomes relevant." Id., at page 334. However, the cases cited for these remarks do not hold that reasonableness of retreat is never a circumstance to consider in determining whether the accused was justified in his use of deadly force in his own home. One of the cases cited was Adams, which, as we have already noted, recogntees that while the failure to retreat is not categorical proof of guilt, it may be a factor for the court's consideration. The other case, United States v Smith, 13 USCMA 471, 33 CMR 3 (1963), also does not support the assertion that retreat is irrelevant to self-defense in the home.
In Smith, the accused was attacked in the latrine of an enlisted men's club. The opinion reviewed the law of self-defense and the role of retreat to determine when deadly force may be resorted to by a person under assault. No distinction was made, or noted, between the right of self-defense in the privacy of the home or in a public place. In significant part, the opinion said:
"From the foregoing, it should be apparent that the doctrine of 'retreat to the wall' has no place in self-defense instructions. Especially, after Adams, it should be clear that the Supreme Court's decision in the Brown case states the appropriate rule. There is no categorical requirement of retreat. Rather, the opportunity to do so safely is only a single factor, to be considered by the triers of fact together with all the circumstances in evaluating the issue of self-defense. And those who read the Manual for Courts-Martial to impose an absolute and categorical requirement of retreat before one may, in defense, kill or resort to use of force likely to result in grievous bodily harm, clearly misconstrue the rule." {Id., at page 479.]
Thus, Smith stands for the proposition, taken from the opinion of the Supreme Court of the United States in Brown v United States, 256 US 335, 343, 65 L Ed 961, 41 S Ct 501 (1921), which was also the main support for this Court's Troglin opinion, that "[r]a-tionally, the failure to retreat is a circumstance to be considered with all the others in order to determine whether the defendant went farther than he was justified in doing; not a categorical proof of guilt." See Smith, supra, at page 478.
Several examples demonstrate the fallacy of the contention that reasonableness of retreat is always immaterial to justification of the use of deadly force to repel an assault when the assault occurs in the defendant's home. If a husband and wife were to quarrel in their home, and the wife assaulted the husband under circumstances indicating it was reasonable and eminently practical for the husband to prevent injury to himself by withdrawing to another room, it could not, in our opinion, be successfully argued that because the husband was in his own home the triers of the facts could not consider the failure to retreat, in determining whether he was justified in the use of deadly force. Similarly, if the accused and an invited guest became involved in a situation in which the accused used deadly force, the fact that they were in the accused's home would not, in our view of the law, prevent the fact finders from considering whether, under the circumstances, the accused could readily have avoided injury by retreat, and thereby made resort to deadly force unnecessary. As the Court of Appeals for the District of Columbia pointed out in Josey v United States, 135 F2d 809, 810 (CA DC Cir) (1943), a case also cited with approval in Smith, supra, the Supreme Court in Brown v United States, supra, did not "repudiate the requirement that one must reasonably believe he is in immediate danger of death or of grievous bodily harm," and the Government could, therefore, examine the accused about his failure to leave the immediate scene before resorting to deadly force.
The instructions here do not equate the failure to retreat to proof of guilt; they do not impose upon the accused a duty to retreat. They are not, therefore, contrary to Adams or Lincoln. Retreat is described as only one circumstance that the court members could consider in determining whether the accused was in such immediate danger of death or serious bodily harm as to justify deadly force in self-defense. That statement is consistent with Smith. Considering the instructions in their entirety, we perceive no error.
The decision of the United States Navy Court of Military Review is affirmed.
APPENDIX
"This evidence raises for the court's consideration the question of self-defense with respect to the principle [sic] offense charged and all lesser included offenses. In this regard you are advised that a person may lawfully meet force with force in protecting himself, and in so doing may justifiably kill or maim his assailant to avoid death or serious bodily harm. A killing may be excused on grounds of self-defense if the accused honestly believed on reasonable grounds, from all of the circumstances as they appeared to him, that the killing was necessary to save his own life or to prevent great bodily harm. For the defense of self-defense to be available to the accused he must not have been the aggressor or intentionally provoked the altercation with the victim. You are advised, however, that if a person, after provoking a fight withdraws in good faith and his adversary follows and renews the fight, he is no longer the aggressor and may avail himself of the right of self-defense.
"You are advised that one is not an aggressor and is not deprived of the defense of self-defense where, after a quarrel he arms himself only for protection and does not intentionally do some act calculated to lead to or provoke a conflict. If the accused honestly believed that he was in eminent [sic] danger of death or great bodily harm, and that his only means of avoiding the impending danger was to take the life of McCarthy, and that under the circumstances, as they appeared to him, he had a reasonable ground for such belief, the defense of self-defense is available to him, even though, in fact, he may have been mistaken as to the actual existence or eminence [sic] of danger.
"In determining whether the accused was justified in killing McCarthy under the foregoing standard, both of two separate tests must be met. First, in order to lawfully use a deadly force or instrument against his assailant the accused must honestly, on reasonable grounds, fear death or serious bodily harm from the attack upon him. The criterion here is reasonableness. Would a reasonable adult man, under the circumstances as they appeared to the accused, have believed that he was in eminent [sic] danger of death or great bodily harm?
"The second test is whether the accused believed that it was necessary for his protection to use the degree of force which he used. Here you are not determining what a reasonable man would have believed, but whether the accused himself actually and hon estly believed the circumstances required the degree of force which he, in fact, employed.
"In applying each of these separate tests you must carefully give consideration to all of the facts and circumstances at the time of the incident as they appeared to the accused. Thus, in determining whether the accused believed on reasonable grounds that he was in eminent [sic] danger of death or serious bodily harm, you should take into account the relative age and rates of the accused and McCarthy; the evidence of the intoxicated condition of McCarthy; the evidence of McCarthy's reputation for being a peaceful, well conducted person and all the other circumstances of the affray.
"In determining whether the accused, in fact, honestly believed the degree of force which he employed was necessary for his protection, you may consider his age, education, training, experience and other personal characteristics and attributes, together with all of the facts and circumstances of the incident, as they appeared to him at the time. The question presented is whether, seen through the accused's own eyes, the situation was one requiring that he kill McCarthy to avoid death or serious injury to himself.
"You are advised that a person is not required to retreat where, being without fault and provoking the assault upon himself, he is at a place where he has a right to be. You are further advised that a sailor's bunk aboard ship is his home and if he is assaulted and improperly ejected therefrom by a shipmate he is under no duty to remain away from his bunk, but has a right to return thereto at will. However, the evidence tending to show that the accused had an opportunity to retreat safely should be considered by you, together with all of the other circumstances, in deciding the issue of self-defense.
"Likewise, you should give similar consideration to the evidence as to whether other persons who might have aided the accused were present when the incident occurred. The law does not demand detached reflection under pressure of a violent attack or in a fast-moving situation, and the accused is not required to pause at his peril to evaluate the degree of his danger or the degree of force required to repel it. Thus, in your deliberations as to the accused's state of mind, you must give due consideration to the violence and rapidity which characterized the incident.
"The burden is on the prosecution to establish the accused's guilt by legal and competent evidence beyond a reasonable doubt. Consequently, unless you are satisfied beyond a reasonable doubt, that the accused did not act in self-defense, as I have explained that term to you, you must find him not guilty of the principle [sic] offense of premeditated murder and all lesser included offenses."
Judge Darden concurs.