C. Defense of Others

• Library: The Criminal Law of South Carolina (SCBar) (2014 Ed.)

C. Defense of Others

Defense of others is closely related to defense of self. Because the latter is no longer an affirmative defense, State v. Bellamy, 293 S.C. 103, 359 S.E.2d 63 (1987) overruled on other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991) (abrogation of the doctrine of in favorem vitae), see subsection B.1. Burden of Proof, supra, it is assumed that, analogously, the defense of others, once raised, must be disproved by the State beyond a reasonable doubt.

The following instructions on defense of others have been approved by the Court:

In such case the right to take the life of such assailant upon such unprovoked assault extends to any relative, friend, or bystander who would likewise have the right to take the life of such assailant if such act was necessary to save the person so wrongfully assailed from imminent danger of being murdered by such assailant. In other words, if the assailant makes a malicious and unprovoked assault with a deadly weapon upon one person with the apparent malicious intention to take the life of the person assailed and thereby commit murder, then, where the danger of the commission of such murder is imminent, any relative, friend, or bystander would have the right to take the life of such assailant if necessary in order to prevent the commission of such murder, provided there was no other reasonable means of escape for the person so assailed, and provided both the person assailed and the person coming to his defense were without legal fault in bringing on the difficulty.

State v. Hays, 121 S.C. 163, 168, 113 S.E. 362, 363 (1922).

The primary difference between self-defense and defense of others is that in the latter the defendant must establish that the person he assisted would have been entitled to use the force in his own defense as measured by the criteria listed in State v. Fuller, 297 S.C. 440, 442-43, 377 S.E.2d 328, 330 (1989), discussed in the self-defense section, supra. Once defense of others has been raised, instructions on only self-defense will not suffice. The jury must be specifically instructed on the elements of defense of others. State v. Hewitt, 205 S.C. 207, 31 S.E.2d 257 (1944).

There must, of course, be some evidence that the defendant was defending others at the time of his act in order for him to be entitled to the instruction. One could be entitled to instructions on self-defense but not be entitled to instructions on defense of others even though others were present in...