Satisfaction of the court

Justifying circumstances are those where the act of a person is said to be in accordance with law, so that such person is deemed not to have transgressed the law and is free from both criminal and civil liability. In stating that the persons therein do not incur criminal liability shows that the state recognizes the acts of such persons as justified. Such persons are not criminals, as there is no crime committed (Brody, et al. , 2001).

As mentioned above, this is a matter of defense and it is incumbent upon the accused, in order to avoid criminal liability, to prove the justifying circumstances claimed by him to the satisfaction of the court. In cases like these, the commission of the act is not denied. In fact it is admitted. What the defendant raises as an affirmative defense is the reasons and attending circumstances to its commission. One most commonly used justifying circumstance is self defense.

Self defense can be invoked by anyone who acts in defense of his person or rights including his property. Well entrenched is the rule that where the accused invokes self defense, it is incumbent upon him to prove by clear and convincing evidence that he indeed acted in defense (Leverick, 2007). The reason why penal law makes self-defense lawful is it would be quite impossible for the state in all cases to prevent aggression upon its citizens and offer protection to the person unjustly attacked.

Also, it cannot be conceived that a person should succumb to an unlawful aggression without offering any resistance (Snelling, 1960) . The law on self defense embodied in any penal system in the civilized world finds justification in man’s natural instinct to protect, repel, and save his person or rights from impending danger or peril; it is based in the impulse of self preservation born to man and part of his nature as a human being (Wikipedia, 2007).

To the Classicists in penal law, lawful defense is grounded on the impossibility on the part of the state to avoid a present unjust aggression and protect a person unlawfully attacked, and therefore it is inconceivable for the state to require that the innocent succumb to an unlawful aggression without resistance, while  to the Positivists, lawful defense in as exercise of a right, an act of social justice done to repel the attack of aggression (Wasserman, 1987).

Section 13-404 of the Arizona Revised Statutes provides that “A. Except as provided in subsection B of this section, a person is justified in threatening or using physical force against another when and to the extent a reasonable person would believe that physical force is immediately necessary to protect himself against the other's use or attempted use of unlawful physical force. B. The threat or use of physical force against another is not justified: 1. In response to verbal provocation alone; or 2.

To resist an arrest that the person knows or should know is being made by a peace officer or by a person acting in a peace officer's presence and at his direction, whether the arrest is lawful or unlawful, unless the physical force used by the peace officer exceeds that allowed by law; or 3. If the person provoked the other's use or attempted use of unlawful physical force, unless: (a) The person withdraws from the encounter or clearly communicates to the other his intent to do so reasonably believing he cannot safely withdraw from the encounter; and

(b) The other nevertheless continues or attempts to use unlawful physical force against the person. ” Based on the facts of the case, self defense cannot be invoked because there was no imminent danger on the life of Dr. Oldguy. Vicky was only one unarmed woman. There was no reason for him to employ that amount of force. Furthermore, the purpose of self defense is to prevent an imminent attack (State vs. Norman). In this case, the action of Dr. Old guy came after the “attack”. Another type of justification is the use of physical force under certain circumstances.

This can be found in ARS Section 13-403. These are the following: “The use of physical force upon another person which would otherwise constitute an offense is justifiable and not criminal under any of the following circumstances: 1. A parent or guardian and a teacher or other person entrusted with the care and supervision of a minor or incompetent person may use reasonable and appropriate physical force upon the minor or incompetent person when and to the extent reasonably necessary and appropriate to maintain discipline.

A superintendent or other entrusted official of a jail, prison or correctional institution may use physical force for the preservation of peace, to maintain order or discipline, or to prevent the commission of any felony or misdemeanor. 3. A person responsible for the maintenance of order in a place where others are assembled or on a common motor carrier of passengers, or a person acting under his direction, may use physical force if and to the extent that a reasonable person would believe it necessary to maintain order, but such person may use deadly physical force only if reasonably necessary to prevent death or serious physical injury.

4. A person acting under a reasonable belief that another person is about to commit suicide or to inflict serious physical injury upon himself may use physical force upon that person to the extent reasonably necessary to thwart the result. 5. A duly licensed physician or a registered nurse or a person acting under his direction, or any other person who renders emergency care at the scene of an emergency occurrence, may use reasonable physical force for the purpose of administering a recognized and lawful form of treatment which is reasonably adapted to promoting the physical or mental health of the patient if:

(a) The treatment is administered with the consent of the patient or, if the patient is a minor or an incompetent person, with the consent of his parent, guardian or other person entrusted with his care and supervision except as otherwise provided by law; or (b) The treatment is administered in an emergency when the person administering such treatment reasonably believes that no one competent to consent can be consulted and that a reasonable person, wishing to safeguard the welfare of the patient, would consent. 6. A person may otherwise use physical force upon another person as further provided in this chapter.

” None of these circumstances are present at the case at bar. EXCUSES Another defense in criminal prosecutions are exempting circumstances. In exempting circumstances, technically a crime is committed, although  by the complete absence of any of the conditions which constitute free will or voluntariness of the act, no criminal liability arises. Exempting circumstances are those grounds for exemption from punishment because there is wanting in the agent of the crime any of the conditions which make the act voluntary or negligent.

The exemption from punishment is based on the complete absence of intelligence, freedom of action, or intent, or on the absence of negligence on the part of the accused (Molan, 2005). An example of an exempting circumstance is insanity. In order that the exempting circumstance of insanity may be taken into account, it is necessary that there be a complete deprivation of intelligence while committing the act, that is, the accused be deprived of reason; that he acts with out the least discernment; or that there be a total deprivation of freedom of will (Morris, 1982). This is not applicable to the case at bar.

In order for this defense to be attainable, ther must be some sort of mental illness or dysfunction. In this case, there was no showing of the existence of such illness. As prosecutor, based on the discussion above, the charges that I will file based on the facts of the case at bar for the reasons stated therein are the following:  1) Manslaughter (Section 13-1103, ARS); 2) Aggravated Assault (Section13-1204, ARS); 4) Theft (Section 13-1802, ARS); and Criminal Trespass in the first degree (13-1504, ARS).

REFERENCES

Barons Law Dictionary. 2007, Premeditation, [Online] Available from: http://lawschool.mikeshecket.com/criminallaw/criminallawoutline.htm#_Toc58923277