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Thread: Spoke to a Lawyer....

  1. #1
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    We are out 'shopping' for a lawyer just incase we need to call one. He has taken several SD with firearm related cases and seems well versed in others. He did say that since VA doesn't have a castle doctrine law on the books that you better be damn sure that you have no where else to go before drawing. He stated that a SD shooting can be very difficult to defend if you are not cornered.
    So it got me thinking, just what would constitute 'cornered'?
    Has anyone else heard something similar from another lawyer (not the arm chair type)?

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    When I first got my CHP, I took a class at the advice of a friend. The guy giving the class was a retired cop, and he pretty much said the same thing. The class was heavy on the legal section (which is why my friend advised I take it...), and that really got me to thinking as well.

    A few months ago I decided to take the legal portion of a class, just as an update, since laws do change.This time it was given by an attorney, and he reinforced the same concept.

    Apparently as itstands now, even if someone breaks into your home in the middle of the night,we still have to be in fear for our lives, and without options before we open fire.

    We really do need some sort of 'castle doctrine' legislation here.

    Personally, I think I have every right to assume that if somebody is breaking into my house, he ain't there to sell me girl-scout cookies....

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    Armed wrote:
    When I first got my CHP, I took a class at the advice of a friend. The guy giving the class was a retired cop, and he pretty much said the same thing. The class was heavy on the legal section (which is why my friend advised I take it...), and that really got me to thinking as well.

    A few months ago I decided to take the legal portion of a class, just as an update, since laws do change.This time it was given by an attorney, and he reinforced the same concept.

    Apparently as itstands now, even if someone breaks into your home in the middle of the night,we still have to be in fear for our lives, and without options before we open fire.

    We really do need some sort of 'castle doctrine' legislation here.

    Personally, I think I have every right to assume that if somebody is breaking into my house, he ain't there to sell me girl-scout cookies....
    That may be the case (legally), however my son is in the next room at the end of my hall, and I'll be damned if turn tail to save the legal defense and leave my son. So I would have every right legally to defend myself and my family.

  4. #4
    Founder's Club Member - Moderator ed's Avatar
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    Armed wrote:
    We really do need some sort of 'castle doctrine' legislation here."

    ED AGREES

    Personally, I think I have every right to assume that if somebody is breaking into my house, he ain't there to sell me girl-scout cookies....
    ED AGREES again but VA law does not (in my opinion). I think it protects a drunken old fart that finds his key wont work in his (your door) so he pops a window to break in to what he thinks was his own home. I don't think at this point I would shoot. I would call 911 and keep the phone in one hand with Kimber trained on the guy in the other... I would call out everything I am doing to be captured on the 911 tape and say things like.. "STOP! You are in the wrong house.. Don't hurt me! I have a gun! If you come any closer I will shoot you! If the guy turns and runs.. you did your job. If the guy comes towards you.. you stop the threat.. Emptying a magazine, reloading and repeating cound get you put in jail too." Be careful. IANAL YMMV.
    Carry On.

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    Regular Member TFred's Avatar
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    Admittedly, not the best source, but in a pinch: According to http://en.wikipedia.org/wiki/Castle_Doctrine Virginia is one of a very small minority of states without either a Castle Doctrine or a Stand Your Ground statute.

    This does seem rather unacceptable.

    TFred


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    TFred wrote:
    Admittedly, not the best source, but in a pinch: According to http://en.wikipedia.org/wiki/Castle_Doctrine Virginia is one of a very small minority of states without either a Castle Doctrine or a Stand Your Ground statute.

    This does seem rather unacceptable.

    TFred
    It's covered in common law and case law in VA. We are a stand your ground state (you can stand your ground anywhere where you can legally be). Only if you are part of the problem must you retreat.

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    Regular Member TFred's Avatar
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    VCDL President wrote:
    TFred wrote:
    Admittedly, not the best source, but in a pinch: According to http://en.wikipedia.org/wiki/Castle_Doctrine Virginia is one of a very small minority of states without either a Castle Doctrine or a Stand Your Ground statute.

    This does seem rather unacceptable.

    TFred
    It's covered in common law and case law in VA. We are a stand your ground state (you can stand your ground anywhere where you can legally be). Only if you are part of the problem must you retreat.
    Ah well, that's better than Wikipedia gives us credit for... someone should update their site! There are several states which fall into that same category, not spelled out by statute, but established by case law.

    Thank you very much for the correction.

    TFred

    ETfixThatPeskyComma. Oh how I hate the editor on this forum!

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    Here is something I am having posted to the VCDL site. Hope this helps:

    VIRGINIA LAW ON SELF-DEFENSE

    Self-defense in Virginia is an affirmative defense, the absence
    of which is not an element of murder. In making this plea a
    defendant implicitly admits the killing was intentional and
    assumes the burden of introducing evidence of justification or
    excuse that raises a reasonable doubt in the minds of the
    jurors.

    The law of self-defense is the law of necessity, and the
    necessity relied upon must not arise out of defendant's own
    misconduct. Accordingly, a defendant must reasonably fear
    death or serious bodily harm to himself at the hands of his
    victim. It is not essential to the right of self-defense that
    the danger should in fact exist. If it reasonably appears to
    a defendant that the danger exists, he has the right to defend
    against it to the same extent, and under the same rules, as
    would obtain in case the danger is real. A defendant may
    always act upon reasonable appearance of danger, and whether
    the danger is reasonably apparent is always to be determined
    from the viewpoint of the defendant at the time he acted.

    McGhee v. Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, ___ (1978).

    The “bare fear” of serious bodily injury, or even death,
    however well-grounded, will not justify the taking of human
    life. . . . “There must [also] be some overt act indicative of
    imminent danger at the time.” (citations omitted). In other
    words, a defendant “must wait till some overt act is done[,] .
    . . till the danger becomes imminent.” (citation omitted).
    In the context of a self-defense plea, “imminent danger” is
    defined as “[a]n immediate, real threat to one's safety . . .
    .” (citation omitted). “There must be . . . some act menacing
    present peril . . . [and] [t]he act . . . must be of such a
    character as to afford a reasonable ground for believing there
    is a design . . . to do some serious bodily harm, and imminent
    danger of carrying such design into immediate execution.”

    Commonwealth v. Sands, 262 Va. 724, 729, 553 S.E.2d 733, ___ (2001).

    USE OF FORCE AGAINST TRESPASSER

    The common law in this state has long recognized the right of a
    landowner to order a trespasser to leave, and if the trespasser refuses
    to go, to employ proper force to expel him, provided no breach of the
    peace is committed in the outset. . . . Absent extreme circumstances,
    however, such force may not endanger human life or cause great bodily
    harm.

    Pike v. Commonwealth, 24 Va. App. 373, 375-376, 482 S.E.2d 839, ___
    (1997).

    JUSTIFIABLE AND EXCUSABLE HOMICIDE

    Justifiable homicide in self-defense occurs where a person,
    without any fault on his part in provoking or bringing on the
    difficulty, kills another under reasonable apprehension of
    death or great bodily harm to himself. . . .

    Excusable homicide in self-defense occurs where the accused,
    although in some fault in the first instance in provoking or
    bringing on the difficulty, when attacked retreats as far as
    possible, announces his desire for peace, and kills his
    adversary from a reasonably apparent necessity to preserve his
    own life or save himself from great bodily harm.

    Bailey v. Commonwealth, 200 Va. 92, 96, 104 S.E.2d 28, ___ (1958).

    VIRGINIA LAW ON DEADLY FORCE TO PROTECT PROPERTY

    The threat to use deadly force by brandishing a deadly weapon
    has long been considered an assault.
    * * *
    [T]he owner of land has no right to assault a mere trespasser
    with a deadly weapon. (citation omitted). . . . [A] deadly
    weapon may not be brandished solely in defense of personal
    property.

    Commonwealth v. Alexander, 260 Va. 238, 241, 242, 531 S.E.2d 567, ___
    (2000).

    BRANDISHING

    Morris was charged with pointing, holding, or brandishing a
    firearm in such a manner as to reasonably induce fear in the
    mind of another, pursuant to Code § 18.2-282. . . .

    Morris says that although Peter Molina saw the flare gun in
    Morris's waistband, he never testified that he was in fear of
    the gun. Morris asserts that Molina, solely out of concern for
    his wife, insisted that they should leave the area where Morris
    was sitting. Indeed, Morris states, Molina indicated in his
    testimony that he “may have stayed where he was had his wife
    not been there.”

    Morris says further that he “never touched the gun in the
    presence” of Molina or his wife and there is no evidence that
    “he pointed the flare gun.” . . .

    “Brandish” means “to exhibit or expose in an ostentatious,
    shameless, or aggressive manner.” Webster's Third New
    International Dictionary, 268 (1993). When Morris looked at
    Ms. Molina, said “[he'd] like that,” and then pulled up his
    shirt to uncover the flare gun, he exhibited or exposed the
    weapon in a shameless or aggressive manner. And Morris
    brandished the weapon in such a manner as to reasonably induce
    fear in the mind of Peter Molina. Although Molina may not have
    said he was in fear for his own safety, he stated unequivocally
    that he feared for the safety of his wife, and that is
    sufficient to prove the “induced fear” element of a conviction
    for brandishing a firearm under Code § 18.2-282.

    Morris v. Commonwealth, 269 Va. 127, 134-135, 607 S.E.2d 110, ___ (2005)

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    ed (25 November 2008 Tuesday 01:20) opines:

    I think it protects a drunken old fart that finds his key wont work in his (your door) so he pops a window to break in to what he thinks was his own home. I don't think at this point I would shoot.
    FWIW, that exact thing actually happened to me once, years ago, in an apartment I had. The drunk wasn't doing a very good job of getting through the window (surprise, surprise), and when challenged said something like "sorry" and just wandered off. He was apparently quite unaware of the .40 pointed at his head for a time.

    I called the PD and reported it, making clear that I thought it was a harmless drunk and I just wanted them to keep someone else from lighting him up if he tried other people's windows. They came out and took a report. I didn't mention a word about a gun to them.

    Turned out later that the apartment manager knew exactly who it was and who he was visiting. She agreed to have a counseling session with him about it.

    I had spent a lot of time just prior to that reading self-defense law of the state I was in, and legally I think I would have been justified in shooting under the circumstances (1 AM, unknown person coming through my window), but I'm glad I didn't.

    This is not to say that I think you should let orcs eat your children alive just to be on the safe side or that I wouldn't want a castle law in Virginia. I'm just sayin' ... this actually happened to me and I'm glad I didn't find out how the law was interpreted in that jurisdiction.

    regards,

    GR

    PS: Though that's probably as "tactical" a situation as I've ever been in, all those things one reads about an adrenaline dump, tunnel vision, etc. did seem to happen to me. I'm just glad I had read and practiced enough to stay in control.

  10. #10
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    To Phil;

    VCDL member here. Is there any chance that the Virginia legislature will be considering a Castle Doctrine bill this year and even better.. any chance that it might see becoming a law this summer?


    In the final seconds of your life, just before your killer is about to dispatch you to that great eternal darkness, what would you rather have in your hand? A cell phone or a gun?

    Si vis pacem, para bellum.

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    SouthernBoy wrote:
    To Phil;

    VCDL member here. Is there any chance that the Virginia legislature will be considering a Castle Doctrine bill this year and even better.. any chance that it might see becoming a law this summer?

    I for one am opposed to legislating "Castle Doctrine" or "Stand Your Ground" in Virginia. The common law and case law, IMNSHO (IANAL), serve me better than some law that most likely will have exclusions and restrictions that cannot be debated in trial.

    What I would like to see is Civil Immunity - which too many people mistakenly call "castle doctrine". If I am sucessful in my affirmative defense of justifiable or excusable murder, Civil Immunity would prevent the heirs and estate of the BG from suing me for damages such as, but not limited to, unlawful killing, violation of civil rights, loss of consortium, lost future earnings, and/or child/spousal support.

    stay safe.

    skidmark
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    skidmark wrote:
    I for one am opposed to legislating "Castle Doctrine" or "Stand Your Ground" in Virginia. The common law and case law, IMNSHO (IANAL), serve me better than some law that most likely will have exclusions and restrictions that cannot be debated in trial.

    What I would like to see is Civil Immunity - which too many people mistakenly call "castle doctrine". If I am sucessful in my affirmative defense of justifiable or excusable murder, Civil Immunity would prevent the heirs and estate of the BG from suing me for damages such as, but not limited to, unlawful killing, violation of civil rights, loss of consortium, lost future earnings, and/or child/spousal support.

    stay safe.

    skidmark
    +1

    S/F

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    Mudwalker wrote:
    skidmark wrote:
    I for one am opposed to legislating "Castle Doctrine" or "Stand Your Ground" in Virginia. The common law and case law, IMNSHO (IANAL), serve me better than some law that most likely will have exclusions and restrictions that cannot be debated in trial.

    What I would like to see is Civil Immunity - which too many people mistakenly call "castle doctrine". If I am sucessful in my affirmative defense of justifiable or excusable murder, Civil Immunity would prevent the heirs and estate of the BG from suing me for damages such as, but not limited to, unlawful killing, violation of civil rights, loss of consortium, lost future earnings, and/or child/spousal support.

    stay safe.

    skidmark
    +1

    S/F
    I concur.

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    I disagree. This is an affirmative defense. If you fail to prove beyond a reasonable doubt that you were either justified, or excusable (or, remotely possible, the defense of necessity), then you have admitted guilt of at the very minimum manslaughter if the opposing party expires. In other words, in order to even raisethe legal claim of self defense, you MUST admit the relevant facts that will be used by the Commonwealth against you.

    The $50,000.00 question is: How much money will you have to expend against the Commonwealth's "bottomless pit of taxpayer money" to prove to a jury beyond a reasonable doubt that you were justified or should be excused?

    The price of failure is prison at the very minimum for a substantial portion of the rest of your life.

    All it takes is a vindictive commonwealth's attorney, and you will at the least spend the rest of your life in the poor house. That's still better than the big house I guess though.

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    Concur with the "civil immunity" theory which will insulate my beneficiaries from monetary harm. As for whether I will pull the trigger or not, none of us know until the moment of truth. IfI do, the consequences be damned, whatever will be will be.

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    Mr. Y wrote:
    I disagree. This is an affirmative defense. If you fail to prove beyond a reasonable doubt that you were either justified, or excusable (or, remotely possible, the defense of necessity), then you have admitted guilt of at the very minimum manslaughter if the opposing party expires. In other words, in order to even raisethe legal claim of self defense, you MUST admit the relevant facts that will be used by the Commonwealth against you.

    The $50,000.00 question is: How much money will you have to expend against the Commonwealth's "bottomless pit of taxpayer money" to prove to a jury beyond a reasonable doubt that you were justified or should be excused?

    The price of failure is prison at the very minimum for a substantial portion of the rest of your life.

    All it takes is a vindictive commonwealth's attorney, and you will at the least spend the rest of your life in the poor house. That's still better than the big house I guess though.
    I am afraid I have to go with Skidmark on this one. Mr Y's position assumes that a Castle provision would prevent you from being charged for a defensive shooting. Nothing could be farther from the truth. In a lot of jurisdictions you will be charged and tried no matter what the circumstances of the shooting are. You may successfully defend the criminal charges only to fall prey to the civil suits that Skidmark references.

    This is part of why this country needs some sort of Tort reform. It is insane that a person can legally defend himself or his family, be clear of any charges, and then be sued into bankruptcy. The principal of first cause should be applied to any civil action. If a person commits an act that leads to their being lawfully dispatched, then they, and their family should lose the right to sue.



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    SouthernBoy wrote:
    To Phil;

    VCDL member here. Is there any chance that the Virginia legislature will be considering a Castle Doctrine bill this year and even better.. any chance that it might see becoming a law this summer?

    Historically we have supported a civil immunity version for fear of screwing up the common law and case law on the criminal part.

    Not sure if it is going in this year or not yet.


  18. #18
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    Gentlemen;

    Based upon the definitions I have just read regarding civil immunity, that would have been my interpretation of a Castle Law with the addition of immunity from prosecution in the case of a justifiable homocide.

    Thanks for the info.


    In the final seconds of your life, just before your killer is about to dispatch you to that great eternal darkness, what would you rather have in your hand? A cell phone or a gun?

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    I think we ought to work for both, go for civil immunity first, then work on getting a properly worded and tested castle doctrine.
    'Till the last landings made, and we stand unafraid, on a shore not mortal has seen,
    'Till the last bugle call, sounds taps for us all,
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    VCDL President
    It's covered in common law and case law in VA.* We are a stand your ground state (you can stand your ground anywhere where you can legally be).* Only if you are part of the problem must you retreat.
    It would be an improvement we were covered by an explicit Castle Doctrine; that may deter prosecutions in places like Norfolk.

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    mariner wrote:
    VCDL President
    It's covered in common law and case law in VA. We are a stand your ground state (you can stand your ground anywhere where you can legally be). Only if you are part of the problem must you retreat.
    It would be an improvement we were covered by an explicit Castle Doctrine; that may deter prosecutions in places like Norfolk.
    Not to mention... it would deter crime all over the state!

    TFred


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    130,000 concealed handgun permit holders in Virginia is already a pretty damn good deterrent.

    Specific immunity would be nice.

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    Toad wrote:
    We are out 'shopping' for a lawyer just incase we need to call one. He has taken several SD with firearm related cases and seems well versed in others. He did say that since VA doesn't have a castle doctrine law on the books that you better be damn sure that you have no where else to go before drawing. He stated that a SD shooting can be very difficult to defend if you are not cornered.
    So it got me thinking, just what would constitute 'cornered'?
    Has anyone else heard something similar from another lawyer (not the arm chair type)?
    With all possible respect to my learned colleague, that's hogwash (to use the technical term).

    Virginia does have the Castle Doctrine, which has been part of the common law since well before 1604 (when the last important case on the subject was decided). But the Castle Doctrine doesn't say what people seem to think it says. It's basically the same thing you get with the Fourth Amendment to the U.S. Constitution - it's designed to keep agents of the Sovereign from bursting in without knocking, without warrants, and without announcing themselves and stating the authority by which they enter.

    There is no requirement that anyone in Virginia retreat before defending himself. It may be wise to do so, or to at least obtain cover, or at the minimum concealment. But whether or not one retreats is legally irrelevant.
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

  24. #24
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    user wrote:
    Toad wrote:
    We are out 'shopping' for a lawyer just incase we need to call one. He has taken several SD with firearm related cases and seems well versed in others. He did say that since VA doesn't have a castle doctrine law on the books that you better be damn sure that you have no where else to go before drawing. He stated that a SD shooting can be very difficult to defend if you are not cornered.
    So it got me thinking, just what would constitute 'cornered'?
    Has anyone else heard something similar from another lawyer (not the arm chair type)?
    With all possible respect to my learned colleague, that's hogwash (to use the technical term).

    Virginia does have the Castle Doctrine, which has been part of the common law since well before 1604 (when the last important case on the subject was decided). But the Castle Doctrine doesn't say what people seem to think it says. It's basically the same thing you get with the Fourth Amendment to the U.S. Constitution - it's designed to keep agents of the Sovereign from bursting in without knocking, without warrants, and without announcing themselves and stating the authority by which they enter.

    There is no requirement that anyone in Virginia retreat before defending himself. It may be wise to do so, or to at least obtain cover, or at the minimum concealment. But whether or not one retreats is legally irrelevant.
    The courts agree with User: http://www.virginia1774.org/Page6.html(I hope that folks are beginning to recognize that www.virginia1774.org is a great resource).
    No Duty to Retreat in Your Home/Curtilage

    "One, in his own curtilage, who is free from fault in bringing on the combat, when attacked by another, has the same right of conduct, without any retreat (i. e. to stand at bay and resist as fault), even to the taking of life, that one has when within his own home. See note to 5 Am. & Eng. Anno. Cas. 999 and cases cited, among them Beard v. United States, 158 U.S. 550, 15 S. Ct. 962, 39 L. Ed. 1086, approved in Alberty v. United States, 162 U.S. 499, 16 S. Ct. 864, 40 L. Ed. 1051. What force one, on his own premises, may use to eject another therefrom, short of endangering human life or of doing great bodily harm, was the subject of consideration in Montgomery's Case, 98 Va. 840, 842-3, 36 S.E. 371; Montgomery v. Commonwealth, 99 Va. 833, 835-6, 37 S.E. 841. But in no case, even within one's own home, or curtilage, is a person wholly justified in taking the life of another, who has entered the home or curtilage peaceably on an implied license, merely to punish or subdue him or to compel him to leave the premises, where there is no apparent intent on the part of the latter to commit any felony.

    As said in 1 Bish. New Cr. Law (8th Ed.), sections 857, 858: "* * the general rule is that while a man may use all reasonable and necessary force to defend his real and personal estate, of which he is in the actual possession, against another who comes to dispossess him without right, he cannot innocently carry this defense to the extent of killing the aggressor. If no other way is open to him, he must yield, and get himself righted by resort to the law. A seeming exception to this rule is the --

    "Defense of the Castle. — In the early times our forefathers were compelled to protect themselves in their habitations by converting them into holds of defense: and so the dwelling house was called the castle. To this condition of things the law has conformed, resulting in the familiar doctrine that while a man keeps the doors of his house closed, no other may break and enter it, except in particular circumstances to make an arrest or the like - cases not within the line of our present exposition. From this doctrine is derived another: namely, that the persons within the house may exercise all needful force to keep aggressors out, even to the taking of life. As observed by Campbell, J., in Michigan, 'a man is not obliged to retreat if assaulted in his dwelling, but may use such means as are absolutely necessary to repel the assailant from his house or prevent his forcible entry, even to the taking of life' * *."

    But the same learned work continues, in section 858, as follows:

    " 1. Waiving Castle. — One may waive the protection of his castle by permitting another to enter; * *."

    " 2. Putting out of the Castle. — If a man enters another's dwelling house peaceable on an implied license, he cannot be ejected except on request to leave, followed by no more than the necessary and proper force, even though misbehaving himself therein.

    * * Hence a needless battery, resulting in death, employed in ejecting an intruder from the dwelling-house, will constitute felonious homicide."

    There is no evidence in the case in judgment tending to show that the deceased entered the premises of the accused by force. He was there, and was greeted in a manner which indicated that he was there by permission of the accused, before the affray began. His subsequent conduct, granting that it was misconduct, did not justify the killing of him, unless that conduct was such as to justify it on the part of the accused under the settled doctrine applicable to the killing of an assailant by one in defence of his own person.

    Therefore, none of the instructions in the case should have been predicated upon the existence or non-existence of the circumstance of the ordering of the deceased off the premises, since that is an immaterial circumstance so far as the instant case is concerned and could serve no purpose but to mislead the jury, unless they were more fully instructed on that subject than they were."

    "The only case in which the law does not require the party to retreat at all, or under any circumstances, is when he' is assaulted in his own house; there he need not fly as far as he can; for he has the protection of his house to excuse him from flying; as that would be to give up by his flight the possession of his house to his adversary. But in this as in other cases, the assault must be of such a character as to expose him to imminent danger. "
    Dodson v. Commonwealth, 159 Va. 976, 979, 167 S.E. 260, 260 (1933).

    as opposed to:

    No Duty to Retreat When Doing a Lawful Act and Suddenly Attacked

    Decarlos Coleman v. Commonwealth, Va. App. (2002 Unpublished)

    "Appellant next contends the trial court erred in refusing to instruct the jury on self-defense. We disagree.
    "Self-defense is an affirmative defense which the accused must prove by introducing sufficient evidence to raise a reasonable doubt about his guilt." Smith v. Commonwealth, 17 Va. App. 68, 71, 435 S.E.2d 414, 416 (1993) (citing McGhee v. Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, 810 (1978); Yarborough v. Commonwealth, 217 Va. 971, 979, 234 S.E.2d 286, 292 (1977)). "[A] person assaulted while in the discharge of a lawful act, and reasonably apprehending that his assailant will do him bodily harm, has the right to repel the assault by all the force he deems necessary, and is not compelled to retreat from his assailant, but may, in turn, become the assailant, inflicting bodily wounds until his person is out of danger." Dodson v. Commonwealth, 159 Va. 976, 979, 167 S.E. 260, 260 (1933) (quoting Jackson's Case, 96 Va. 107, 30 S.E. 452 (1898))."

    See Also : Gilbert v. Commonwealth, 28 Va. App. 466, 473, 506 S.E.2d 543, 546 (1998).

    stay safe.

    skidmark




    "He'll regret it to his dying day....if ever he lives that long."----The Quiet Man

    Because stupidity isn't a race, and everybody can win.

    "No matter how much contempt you have for the media in all this, you don't have enough"
    ----Allahpundit

  25. #25
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    skidmark wrote:
    SouthernBoy wrote:
    To Phil;

    VCDL member here. Is there any chance that the Virginia legislature will be considering a Castle Doctrine bill this year and even better.. any chance that it might see becoming a law this summer?

    I for one am opposed to legislating "Castle Doctrine" or "Stand Your Ground" in Virginia. The common law and case law, IMNSHO (IANAL), serve me better than some law that most likely will have exclusions and restrictions that cannot be debated in trial.

    What I would like to see is Civil Immunity - which too many people mistakenly call "castle doctrine". If I am sucessful in my affirmative defense of justifiable or excusable murder, Civil Immunity would prevent the heirs and estate of the BG from suing me for damages such as, but not limited to, unlawful killing, violation of civil rights, loss of consortium, lost future earnings, and/or child/spousal support.

    stay safe.

    skidmark
    During Lobby Day, the topic of Castle Doctrine came up while talking with one of the Delegates (I can't remember who for the life of me). His response was that, as a lawyer, he didn't really see a purpose for a Castle Doctrine law in this state because Virginia is a "strict liability" state. With strict liability, if the person trying to sue has any blame at all, he has no case. In states with relative liability (I may have the term wrong), an award would be decided, and then the amount the plaintiff would actually receive would be reduced based on what percentage of responsibility he is believed to have had in the situation occuring in the first place.

    So, based on what he had to say, if someone is in your house illegally and you defend yourself, their family can't sue. Well, technically, they could try to sue, but it wouldn't go anywhere. As such, it's not likely that any lawyer with a clue would waste his time on a suit like that.

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