State v. Barr

115 Ariz. 346, 565 P.2d 526 (Ct. App. 1977)

 

RULE:

The law no longer allows a private person to use deadly force to arrest for every felony. The felony must be one which reasonably creates a fear of great bodily injury.

FACTS:

Defendant appealed the judgment of a trial court (Arizona), which convicted him of voluntary manslaughter while armed with a gun. The conviction arose out of the fatal shooting of the victim as the victim and several companions left defendant's yard after attempting to steal some wooden chairs valued at less than $ 5. Defendant argued that the trial court erred in refusing to allow his defense that the killing was justified under Ariz. Rev. Stat. § 13-462(4) because he was attempting to apprehend a fleeing felon. The court found that the trial court refused such instructions because no felony was committed, as the yard was neither "enclosed" nor "commercial" within the meaning of Ariz. Rev. Stat. § 13-302, which defined burglary, and because the elements of a burglary were not present and that, thus, the defense could not be invoked. On appeal, the court agreed.

ISSUE:

Was defendant's killing justified as he was attempting to apprehend a fleeing felon?

ANSWER:

No.

CONCLUSION:

A "commercial yard" was not within the statute unless it was fully enclosed and its enclosing structure was erected mainly for the purpose of protecting property and not merely as a boundary or for aesthetic considerations. Defendant argued that the trial court erred by refusing to give certain requested instructions on the right of self-defense. The court found no error because where the instructions given were correct and fairly stated the law, it was not error to refuse to single out a particular element of the case for special instruction. Lastly, defendant's sentence was within the limitations for the lesser offense and could not be disturbed.

 

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