State v. Fair

The Facts

Fair charged with murder of victim.  Friend of defendant and co-defendant went to their apartment and were sitting around a table when they suddenly saw victim standing over defendant.  The testimony was unclear, but victim and defendant began fighting, supposedly initiated by victim.  Defendant picked up a knife from the table and went toward victim.  Defendant testified she stabbed the victim because “she was scared and trying to get away from him.”  Co-defendant then picked up a knife himself when he saw the victim going for something in his pocket and got between victim and defendant and began slashing the victim.

Procedural History

At trial, charge reduced to manslaughter.  The trial court instructed the jury that either defendant only had the right to defend themselves and that co-defendant could not claim self-defense in defending defendant.


“Any person who kills another by misadventure, or in his or her own defense, or in the defense of his or her husband, wife, parent, child, brother, sister, master, mistress or servant, or who kills any person attempting to commit arson, burglary, kidnapping, murder, rape, robbery or sodomy is guiltless and shall be totally acquitted and discharged.”

The Issue

Whether co-defendant had a right to intervene and is consequently entitled to an affirmative defense, self-defense jury instruction.

The Holding/Reasoning

Yes.  At common law one only has a right to defend a member of his household who is shown to be in danger.  There are two approaches the right to intervene in defense of another.  The first “is that the fault of the defended party is imputed to the one who intervenes on his behalf, while the other is that the intervening party is bound only by his own intent.”  As to the latter, the co-defender may only intervene in as much as the person he is intervening on behalf of is entitled to self-defend.  This is called the “objective test theory”: “one who intervenes in a struggle under a reasonable but mistaken belief that he is protecting another who he assumes is being unlawfully assaulted in thereby exonerated from criminal liability.”  This view and theory is adopted by the state.  The test for whether the intervener may intervene in defense is determined by the subjective intent of the intervener.  This is only subject to a qualification that “a jury find objectively find that he reasonably arrived at the conclusion that the apparent victim was in peril, and that the force he used was necessary.”  This allows the intervener to have a mistake of fact defense, both regarding the amount of force necessary and whether intervention was necessary.

Public policy supports this decision, as defendants should be entitled to be absolved of criminal liability where they intervene in good faith on behalf of a third party.  This policy encourages bystanders to aid in the help of others.

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