Common Law Right To Self Defense Includes Felons
Humphrey v. Commonwealth, 37 Va. App. 36, 553 S.E.2d 546 (2001).
"[The legislature] in enacting criminal statutes legislates against a background of Anglo-Saxon common law . . . ." Part of this common law is the doctrine of self-defense. . . . tatutes rarely enumerate the defenses to the crimes they describe. . . . We do not believe that [the legislature] intended to make [convicted felons] hapless targets for assassins. The right to defend oneself from deadly attack is fundamental. [The legislature] did not contemplate that [Code 18.2-308.2] would divest convicted felons of that right....Further, as the Commonwealth acknowledges, "[t]he fact that a man has been drinking does not ipso facto deprive him of the right of self-defense, even though the necessity for the exercise of the right might not have arisen had neither he nor his aggressor been drinking." Hawkins v. Commonwealth, 160 Va. 935, 941, 169 S.E. 558, 560 (1933); see Gilbert v. Commonwealth, 28 Va. App. 466, 473, 506 S.E.2d 543, 546-47 (1998) (holding that accused was not at fault in inviting aggressors to his house for drinks)....Courts and commentators disagree over whether the appropriate label for the defense is self-defense, necessity or duress. See Panter, 688 F.2d at 272 n.7 (discussing self-defense and necessity and holding that accused was entitled to instruction under either); Castrillo, 819 P.2d at 1328 & n.2 (comparing justification defenses of duress and necessity to self-defense). The justification defenses of duress and necessity are similar in that both require that "the perceived harm must be imminent." Castrillo, 819 P.2d at 1328 n.2. Self-defense is similar to duress and necessity in that it "provides a justification for an otherwise criminal act; strictly speaking, however, it is not a defense to possession, although it may justify the possession."...The [common law] defense of necessity traditionally addresses the dilemma created when physical forces beyond the actor's control render "illegal conduct the lesser of two evils." . . . We have held that, under appropriate circumstances, constructive possession of a firearm may support a conviction for possession of a firearm by a convicted felon. See Blake v. Commonwealth, 15 Va. App. 706, 707-09, 427 S.E.2d 219, 220-21 (1993) (holding accused constructively possessed firearm which was in actual possession of his companion while accused and companion acted jointly to commit robbery). Here, however, neither the Commonwealth nor the trial court took the position that appellant constructively possessed the firearm earlier on December 29, 1999, before he took actual possession of it, presumably because the evidence indicated the firearm was located in a storage shed which was owned and used by appellant's father and located on property owned by appellant's father. "
See Also : Joann Marie Crews Walker v. Commonwealth, Va. App. (2004 Unpublished)
