# Des Jardins v. State

> Alaska Supreme Court · June 11, 1976 · 551 P.2d 181

URL: https://www.frixlaw.com/law-library/cases/9548487

## Case

- **Full name:** James Ernest DES JARDINS, Appellant, v. STATE of Alaska, Appellee
- **Court:** Alaska Supreme Court
- **Decided:** June 11, 1976
- **Citations:** 551 P.2d 181
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Rabinowitz, Con-Nor, Erwin, Boochever, Burke
- **Cited by:** 80 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9548487

## How later opinions describe it (automated extraction)

- holding that judge did not abuse his discretion in refusing to answer jury questions, advising, however, that a reference to the previously-given instructions would have been desirable
- explaining that trial judges have a duty to provide guidance to a jury when it is confused about a legal issue

## Opinion text

OPINION ON REHEARING
Appellant James Des Jardins has petitioned for rehearing under Rule 27, Alaska Rules of Appellate Procedure, 1 alleging that our opinion in his appeal, Des Jardins v. State, (Alaska 1976) (Op. No. 2280), overlooked or misconceived certain issues. Of the issues enumerated by Des Jardins, we find that one merits further discussion. Des Jardins argued, inter alia> that he was entitled to a “defense of others” instruction with regard to the charge of assault with a dangerous weapon; this issue was not specifically dealt with in our opinion.
Des Jardins requested a “defense of others” instruction for both the assault with a dangerous weapon and the homicide charges, his theory being that his striking Zdepski and his killing Cucuroll were acts justified by his defense of Zaverl. 2 We reject such a defense to the assault charge for the same reason we rejected it with regard to the homicide charge: lack of necessity. Although described in AS 11.15.100 as a defense to homicide, the “defense of others” defense is available to defendants charged with assault as well. To present such a defense, however, a defendant must show that the use of force was reasonably necessary in order to defend the “other” person. 3 Des Jardins failed to present any evidence of necessity for his striking Zdepski with the metal rod, just as he failed to make such a showing with regard to his killing Cucu-roll. Therefore, the trial court’s refusal to grant the instruction was proper. 4
. Alaska Rules of Appellate Procedure, Rule 27 (a) provides:
(a) Grounds for Petition. The court may order a rehearing of a matter previously decided if, in reaching its decision
(1) The court has overlooked, misapplied or failed to consider a statute, decision or principle directly controlling; or
(2) The court has overlooked or misconceived some material fact or proposition of law; or
(3) The court has overlooked or misconceived a material question in the case.
A rehearing will not be granted if it is sought merely for the purpose of obtaining a reargument on and reconsideration of matters which have already been fully considered by the court.
. The facts of the case are set forth in our earlier opinion.
. Gray v. State, 463 P.2d 897 (Alaska 1970). We do not reach the question of whether Zaverl was a member of a class which Des Jardins might have used force to protect; see AS 11.15.100(1).
. We note also that Zaverl, whom Des Jar-dins says he was trying to defend, was the aggressor in the incident, and as such had severely limited rights to use force in his own defense. One who goes to the defense of another is not privileged to use more force than he could reasonably believe the person defended was entitled to use. Commonwealth v. Martin, 341 N.E.2d 885, 891 (Mass.1976) ; United States v. Grimes, 413 F.2d 1376 (7th Oir. 1969) ; A.L.I. Model Penal Code § 3.05 (Proposed Official Draft 1962).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9548487. Public record. Not legal advice.