facts the instruction should not have been given

facts the instruction should not have been given

The State claims that under the facts the instruction should not have been given because there was no lethal threat to defendant contemporaneous with the killing. The State points out that Peggy’s annulment and divorces from former husbands, and her filing for divorce after leaving Mike, proved that Peggy knew there were non-lethal methods by which she could extricate herself from the abusive relationship.

Early Kansas cases held that killing in selfdefense was justifiable when the defendant had reasonable grounds to believe that an aggressor ( 1) had a design to take the defendant’s life, (2) attempted to execute the design or was in an apparent situation to do so, and (3) induced in the defendant a reasonable belief that he intended to do so immediately. State v. Horne, 15 Kan. 547,554 (1875).

These common-law principles were codified in K.S.A. 21- 3211, which provides: A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor’s imminent use of unlawful force.

The traditional concept of self-defense has posited one-time conflicts between persons of somewhat equal size and strength. When the defendant claiming selfdefense is a victim of long-term domestic violence, such as a battered spouse, such traditional concepts may not apply. Because of the prior history of abuse, and the difference in strength and size between the abused and the abuser, the accused in such cases may choose to defend during a momentary lull in the abuse, rather than during a conflict. However, in order to warrant the giving of a self-defense instruction, the facts of the case must still show that the spouse was in imminent danger close to the time of the killing.

A person is justified in using force against an aggressor when it appears to that person and he or she reasonably believes such force to be necessary. A reasonable belief implies both an honest belief and the existence of facts which would persuade a reasonable person to that belief. A self-defense instruction must be given if there is any evidence to support a claim of self-defense, even if that evidence consists solely of the defendant’s testimony.

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