State v. Schroeder
199 Neb. 822, 261 N.W.2d 759, 1978 Neb. LEXIS 644 (1978)
Rule of Law:
The legal defense of justification or self-defense is not available to a defendant who uses force against a sleeping victim based solely on prior verbal threats, as the law requires that the use of force be immediately necessary to protect against unlawful force on the present occasion.
Facts:
- Schroeder, age 19, was confined in a prison cell with Riggs, age 24.
- Riggs had a reputation for violence and had established a position of dominance over Schroeder.
- Schroeder owed Riggs approximately $3,000 from gambling.
- Riggs threatened to sell the debt to another prisoner to make a 'punk' out of Schroeder, implying forced homosexual acts.
- While playing cards, Riggs told Schroeder he might sleepwalk that night and 'collect' the debt he was owed.
- Schroeder went to bed at 10 p.m. but stayed awake out of fear of the threat.
- At 1 a.m., while Riggs was asleep, Schroeder stabbed him in the back with a homemade knife.
- After Riggs woke up and tried to remove the knife, Schroeder struck him in the face multiple times with a metal ashtray.
Procedural Posture:
- The State charged Schroeder with stabbing with intent to kill, wound, or maim.
- The case proceeded to trial in the district court.
- The defense requested jury instructions on the statutory defense of justification (choice of evils).
- The trial court refused to give the requested jury instructions.
- The jury found Schroeder guilty of the lesser offense of assault with intent to inflict great bodily injury.
- The trial court sentenced Schroeder to 2 to 3 years imprisonment.
- Schroeder appealed the conviction and sentence to the Supreme Court of Nebraska.
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Issue:
Is a prisoner entitled to a jury instruction on the defense of justification (choice of evils or self-defense) when he assaults a sleeping cellmate who had verbally threatened to sexually assault him earlier that evening?
Opinions:
Majority - Boslaugh
No, the instruction was properly refused because the threat was not immediate enough to justify a preemptive strike. The court reasoned that while the relevant statute uses the phrase 'on the present occasion,' which may be slightly broader than the traditional common law requirement of 'imminent' danger, it still requires the force to be 'immediately necessary.' Here, the victim was asleep and had committed no overt act at the time of the stabbing. The court relied on the general legal principle that words alone are not sufficient justification for an assault. The court emphasized that legalizing preventive assaults based merely on threats would be dangerous. However, acknowledging the difficult circumstances, the court reduced the sentence.
Dissent - Clinton
Yes, the jury should have decided whether the force was necessary given the specific context of confinement. The dissent argued that the statutory language 'on the present occasion' was specifically designed to be broader than 'imminent.' Given the threat of forcible sodomy (a great evil) and the fact that Schroeder could not retreat or stay awake indefinitely to wait for the attack to begin, a jury could reasonably find his actions were necessary. The dissent noted that waiting for the physical attack to commence might have rendered the defendant's available defense measures inadequate.
Dissent - White, C. Thomas
Yes, and the instruction should have applied even to the charge of assault with intent to kill. This dissent agreed with Justice Clinton but clarified that because deadly force is justifiable to prevent forcible sexual assault, the instruction was relevant to the most serious charge as well.
Analysis:
This case highlights the tension between traditional self-defense doctrines and the realities of prison violence. The court strictly adhered to the requirement of an overt act or immediate physical threat, rejecting the 'preventive strike' rationale even in the face of credible threats of sexual violence in a confined space. This decision reinforces the 'imminence' requirement in self-defense jurisprudence, establishing that fear of future harm, regardless of how likely, does not license the use of force against a currently passive or sleeping individual. It serves as a significant precedent limiting the scope of 'battered person' style defenses in non-domestic settings within this jurisdiction.
