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Michigan Supreme Court 

Lansing, Michigan 48909 

C hief Justice Justices 

Maura D. Corrigan	 Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Clifford W. Taylor Opinion Robert P. Young, Jr. 

Stephen J. Markman 

FILED JULY 31, 2002
 

PEOPLE OF THE STATE OF MICHIGAN,
 

Plaintiff-Appellee,
 

v	 No. 118181
 

MARCEL R. RIDDLE,
 

Defendant-Appellant.
 

BEFORE THE ENTIRE BENCH
 

YOUNG, J.
 

We granted leave in this case to consider whether
 

defendant is entitled to the reversal of his convictions of
 

second-degree murder1 and possession of a firearm during the
 

commission of a felony (felony-firearm)2 on the ground that
 

1

MCL 750.317.
 

2MCL 750.227b.
 
the trial court denied his request for a jury instruction that
 

he was not required to retreat before exercising deadly force
 

in self-defense while in his yard. We affirm.
 

I. INTRODUCTION
 

The prosecution contends that Michigan law generally
 

imposes a “duty to retreat” upon a person who would exercise
 

deadly force in self-defense, and that the so-called “castle
 

doctrine”–providing an exception to this duty to retreat when
 

a person is attacked within his dwelling–does not extend to
 

the area outside the dwelling. Defendant, on the other hand,
 

contends that the castle doctrine should be extended to the
 

curtilage and that he was not required to retreat when he was
 

assaulted in his backyard.
 

Because Michigan’s case law has become somewhat confused
 

with respect to the concepts of retreat and the castle
 

doctrine, we take this opportunity to clarify these principles
 

as they apply to a claim of self-defense. We reaffirm today
 

the following, according to the common-law principles that
 

existed in Michigan when our murder statute was codified.
 

As a general rule, the killing of another person in selfdefense by one who is free from fault is justifiable homicide
 

if, under all the circumstances, he honestly and reasonably
 

believes that he is in imminent danger of death or great
 

bodily harm and that it is necessary for him to exercise
 

2
 
 

deadly force.3 The necessity element of self-defense normally
 

requires that the actor try to avoid the use of deadly force
 

if he can safely and reasonably do so, for example by applying
 

nondeadly force or by utilizing an obvious and safe avenue of
 

retreat.4
 

There are, however, three intertwined concepts that
 

provide further guidance in applying this general rule in
 

certain fact-specific situations. First, a person is never
 

required to retreat from a sudden, fierce, and violent attack;
 

nor is he required to retreat from an attacker who he
 

reasonably believes is about to use a deadly weapon.5 In
 

these circumstances, as long as he honestly and reasonably
 

believes that it is necessary to exercise deadly force in
 

self-defense, the actor’s failure to retreat is never a
 

consideration when determining if the necessity element of
 

self-defense is satisfied; instead, he may stand his ground
 

and meet force with force.6 That is, where it is uncontested
 

3See People v Heflin, 434 Mich 482, 502-503; 456 NW2d 10
 

(1990) (opinion by RILEY, C.J.); People v Lennon, 71 Mich 298,
 

300-301; 38 NW 871 (1888).
 

4

Pond v People, 8 Mich 150, 176 (1860); People v Doe, 1


Mich 451, 455-456 (1850).
 

5

Doe, supra at 455-456; People v Macard, 73 Mich 15, 21­

22; 40 NW 784 (1888). 


6People v Kuehn, 93 Mich 619, 621-622; 53 NW 721 (1892);
 

Macard, supra at 21-22; Brownell v People, 38 Mich 732, 738


(1878); People v Lilly, 38 Mich 270, 276 (1878); Patten v
 

(continued...)
 

3
 
 

that the defendant was the victim of a sudden and violent
 

attack, the Court should not instruct the jury to consider
 

whether retreat was safe, reasonable, or even possible,
 

because, in such circumstances, the law does not require that
 

the defendant engage in such considerations.7
 

Second, Michigan law imposes an affirmative obligation to
 

retreat upon a nonaggressor8 only in one narrow set of
 

circumstances: A participant in voluntary mutual combat will
 

not be justified in taking the life of another until he is
 

deemed to have retreated as far as safely possible.9 One who
 

6

(...continued)


People, 18 Mich 313, 330-331 (1869).
 

7See Beard v United States, 158 US 550, 564; 15 S Ct 962;


39 L Ed 1086 (1895), stating that the victim of a sudden and


violent attack is “not obliged to retreat, nor to consider


whether he could safely retreat . . . .”
 

Where, on the other hand, a factual issue has been


presented for the jury’s resolution concerning the
 

circumstances under which the defendant used deadly force—as


is true in the case at bar—the jury should be instructed


concerning all relevant principles for which evidentiary


support exists.
 

8We are not concerned in this case with the use of deadly


force by one who is an initial aggressor (i.e., one who is the


first to use deadly force against the other), as such a person


is generally not entitled to use deadly force in self-defense.


See Heflin, supra at 502-503; People v Townes, 391 Mich 578;


218 NW2d 136 (1974); Perkins & Boyce, Criminal Law (3d ed), pp


1121, 1129-1133. The principles articulated in this opinion


apply solely to those who are otherwise privileged to exercise


deadly force in self-defense.
 

9See People v Lenkevich, 394 Mich 117, 120-121; 229 NW2d


298 (1975); Pond, supra at 174-175.
 

4
 
is involved in a physical altercation in which he is a willing
 

participant–referred to at common law as a “sudden affray” or
 

a “chance medley”–is required to take advantage of any
 

reasonable and safe avenue of retreat before using deadly
 

force against his adversary, should the altercation escalate
 

into a deadly encounter. 


Third, regardless of the circumstances, one who is
 

attacked in his dwelling is never required to retreat where it
 

is otherwise necessary to exercise deadly force in selfdefense. When a person is in his “castle,” there is no safer
 

place to retreat; the obligation to retreat that would
 

otherwise exist in such circumstances is no longer present,
 

and the homicide will be deemed justifiable. This is true
 

even where one is a voluntary participant in mutual combat.10
 

Because there is no indication that this “castle doctrine”
 

extended to outlying areas within the curtilage of the home at
 

the time of the codification of our murder statute, however,
 

we decline defendant’s invitation to extend the doctrine in
 

this manner; we hold instead that the doctrine is limited in
 

application to the home and its attached appurtenances.11
 

10See Pond, supra at 176. 


11We specifically do not address whether a person may


exercise deadly force in defense of his habitation, and our


holding should not be misconstrued to sanction such use of


force as it pertains to the defense of one’s habitation.


Rather, we hold only that a person is not obligated to retreat


(continued...)
 

5
 
 

II. FACTUAL AND PROCEDURAL BACKGROUND
 

On the evening of August 15, 1997, defendant and two
 

friends, Robin Carter and James Billingsley, convened at
 

defendant’s home. The three men were in the backyard just
 

outside defendant’s house, in the driveway near a detached
 

garage, when defendant shot Carter in the legs eleven times
 

with an automatic carbine rifle. After shooting Carter,
 

defendant immediately drove to the Detroit River, where he
 

disposed of the rifle. Carter, who did not have a weapon in
 

his possession, was resuscitated at the scene but died as a
 

result of the gunshot wounds three days later. 


Although the facts in the preceding recitation are
 

undisputed, at defendant’s trial on charges of first-degree
 

murder12 and felony-firearm the prosecution and the defense
 

presented different versions of the events leading to the
 

shooting. Billingsley testified for the prosecution that
 

after Carter made a disparaging comment about defendant’s
 

fiancée, defendant went into the house, came back outside
 

armed with a rifle, and began firing at Carter. Billingsley
 

stated that Carter was not armed and did not approach
 

11(...continued)


in his dwelling or its attached appurtenances before
 

exercising deadly force in self-defense if he honestly and


reasonably believes that he is in imminent danger of death or


serious bodily harm. See n 3.
 

12MCL 750.316.
 

6
 
defendant when he came out of the house with the weapon.
 

Defendant, on the other hand, testified that he intervened in
 

an argument between Carter and Billingsley and that he told
 

Carter, whom he considered to be “the more aggressive one,” to
 

leave. Seeing a “dark object” in Carter’s hand and believing
 

it to be a gun, defendant immediately reached for his rifle,
 

which he testified was in his detached garage. Defendant
 

stated that he aimed the rifle at Carter’s legs and pulled the
 

trigger, intending only to scare him.
 

Defendant requested that the jury be instructed, pursuant
 

to CJI2d 7.17, that there is no duty to retreat in one’s own
 

home before exercising self-defense.13 The prosecution
 

objected, contending that the instruction was not appropriate
 

because the shooting took place outside the home, in the
 

curtilage. Although defendant attempted to withdraw his
 

request for CJI2d 7.17, the trial court proceeded to rule that
 

the instruction was not appropriate under the circumstances of
 

13CJI2d 7.17 provides: 


If a person [assaulted the defendant in the


defendant’s own home / forcibly entered the
 

defendant’s home], the defendant did not have to


try to retreat or get away. Under those
 

circumstances, the defendant could stand [his]


ground and resist the [attack / intrusion] with as


much force as [he] honestly and reasonably believed


necessary at the time to protect [himself]. 


7
 
the case. 14 The trial court instead instructed the jury, in
 

accordance with CJI2d 7.16, as follows:
 

By law, a person must avoid using deadly force


if he can safely do so. If the defendant could
 

have safely retreated but did not do so, you can


consider that fact along with all the other
 

circumstances when you decide whether he went


farther in protecting himself than he should have.
 

However, if the defendant honestly and
 

reasonably believed that it was immediately


necessary to use deadly force to protect himself


from an [imminent] threat of death or serious


injury, the law does not require him to retreat.


He may stand his ground and use the amount of force


he believes necessary to protect himself.[15]
 

The jury returned a verdict of guilty of the lesser offense of
 

second-degree murder and guilty as charged of felony-firearm.
 

In his appeal before the Court of Appeals, defendant
 

argued that the trial court improperly denied his request for
 

a “no duty to retreat” instruction. The Court of Appeals
 

panel examined this Court’s decisions in Pond v People, 8 Mich
 

150 (1860), and People v Lilly, 38 Mich 270 (1878), and held
 

that defendant had a duty to retreat if safely possible before
 

exercising deadly force to repel an attack unless he was
 

inside his dwelling or an inhabited outbuilding within the
 

curtilage. Because the shooting occurred within the curtilage
 

14We assume, therefore, for purposes of this opinion that


defendant’s claim of error was properly preserved, despite


counsel’s offer to withdraw the request for CJI2d 7.17.
 

15The jury was also given the general self-defense


standard jury instruction, CJI2d 7.15.
 

8
 
but not in an inhabited outbuilding, the panel opined, the
 

trial court properly refused to instruct the jury that
 

defendant had no duty to retreat. Unpublished opinion per
 

curiam, issued October 13, 2000 (Docket No. 212111).
 

We granted leave to appeal, limited to the issue whether
 

the trial court committed error requiring reversal in denying
 

defendant’s request to instruct the jury concerning the lack
 

of a duty to retreat. 465 Mich 884 (2001). Because we
 

conclude that the trial court did not err, we affirm
 

defendant’s convictions.
 

III. STANDARD OF REVIEW
 

We are required in this case to determine under what
 

circumstances a defendant must retreat before exercising
 

deadly force in self-defense. This presents a question of
 

law, which we review de novo. People v Hamilton, 465 Mich
 

526, 529; 638 NW2d 92 (2002); People v Layher, 464 Mich 756,
 

761; 631 NW2d 281 (2001).
 

A criminal defendant is entitled to have a properly
 

instructed jury consider the evidence against him. People v
 

Rodriguez, 463 Mich 466, 472; 620 NW2d 13 (2000); People v
 

Mills, 450 Mich 61, 80-81; 537 NW2d 909 (1995). When a
 

defendant requests a jury instruction on a theory or defense
 

that is supported by the evidence, the trial court must give
 

the instruction. Rodriguez, supra at 472-473; Mills, supra at
 

9
 
 

81. However, if an applicable instruction was not given, the
 

defendant bears the burden of establishing that the trial
 

court’s failure to give the requested instruction resulted in
 

a miscarriage of justice. MCL 769.26; Rodriguez, supra at
 

473-474; People v Lukity, 460 Mich 484, 493-494; 596 NW2d 607
 

(1999). The defendant’s conviction will not be reversed
 

unless, after examining the nature of the error in light of
 

the weight and strength of the untainted evidence, it
 

affirmatively appears that it is more probable than not that
 

the error was outcome determinative. MCL 769.26; Rodriguez,
 

supra at 474; Lukity, supra at 495-496. 


IV. ANALYSIS
 

A. PRINCIPLES OF CONSTRUCTION
 

Because Michigan’s homicide statutes proscribe “murder”
 

without providing a particularized definition of the elements
 

of that offense or its recognized defenses,16 we are required
 

to look to the common law at the time of codification for
 

guidance. See Const 1963, art 3, § 7;17 People v Couch, 436
 

16The Legislature has bifurcated all murder offenses into


first-degree murder, MCL 750.316, and second-degree murder,


MCL 750.317. The statutory description of these offenses has


changed little since the first Penal Code was enacted in 1846.


See People v Couch, 436 Mich 414, 418-421; 461 NW2d 683 (1990)
 

(opinion by BOYLE, J.). 


17“The common law and the statute laws now in force, not


repugnant to this constitution, shall remain in force until


they expire by their own limitations, or are changed, amended


(continued...)
 

10
 
Mich 414, 418-421; 461 NW2d 683 (1990). Where a statute
 

employs the general terms of the common law to describe an
 

offense, courts will construe the statutory crime by looking
 

to common-law definitions. See Couch, supra at 419, quoting
 

Morissette v United States, 342 US 246, 263; 72 S Ct 240; 96
 

L Ed 288 (1952):
 

“[W]here [a legislature] borrows terms of art


in which are accumulated the legal tradition and


meaning of centuries of practice, it presumably


knows and adopts the cluster of ideas that were


attached to each borrowed word in the body of


learning from which it was taken and the meaning


its use will convey to the judicial mind unless


otherwise instructed. In such case, absence of


contrary direction may be taken as satisfaction


with widely accepted definitions, not as a
 

departure from them.”
 

The criminal law, as defined at common law and codified by
 

legislation, “should not be tampered with except by
 

legislation,” and this rule applies with equal force to
 

common-law terms encompassed in the defenses to common-law
 

crimes. In Re Lamphere, 61 Mich 105, 109; 27 NW 882 (1886).
 

Therefore, because our Legislature has not acted to change the
 

law of self-defense since it enacted the first Penal Code in
 

1846, we are proscribed from expanding or contracting the
 

defense as it existed at common law.18 We therefore apply the
 

17(...continued)


or repealed.”
 

18Thus, although we are certainly not oblivious to various


policy concerns that might otherwise affect our analysis were


(continued...)
 

11
 
 

common law as it was understood when the crime of murder was
 

codified to clarify the concepts of retreat and the castle
 

doctrine.
 

B. SELF-DEFENSE AND RETREAT
 

1. GENERALLY APPLICABLE RULES
 

At common law, a claim of self-defense, which “is founded
 

upon necessity, real or apparent,” may be raised by a
 

nonaggressor as a legal justification for an otherwise
 

intentional homicide. 40 Am Jur 2d, Homicide, § 138, p 609.
 

When a defendant accused of homicide claims self-defense,
 

[t]he question to be determined is, did the
 

accused, under all the circumstances of the
 

assault, as it appeared to him, honestly believe


that he was in danger of [losing] his life, or


great bodily harm, and that it was necessary to do


what he did in order to save himself from such
 

apparent threatened danger? [People v Lennon, 71


Mich 298, 300-301; 38 NW 871 (1888).]
 

Thus, the killing of another person in self-defense is
 

justifiable homicide only if the defendant honestly and
 

reasonably believes his life is in imminent danger or that
 

there is a threat of serious bodily harm and that it is
 

necessary to exercise deadly force to prevent such harm to
 

himself. See People v Daniels, 192 Mich App 658, 672; 482
 

NW2d 176 (1991).
 

18(...continued)


we not constrained to apply MCL 750.317 to the facts of the


case before us, we leave the task of rendering such policy


judgments to the Legislature.
 

12
 
We reaffirm today that the touchstone of any claim of
 

self-defense, as a justification for homicide, is necessity.
 

An accused’s conduct in failing to retreat, or to otherwise
 

avoid the intended harm, may in some circumstances–other than
 

those in which the accused is the victim of a sudden, violent
 

attack–indicate a lack of reasonableness or necessity in
 

resorting to deadly force in self-defense. For example, where
 

a defendant “invites trouble” or meets non-imminent force with
 

deadly force, his failure to pursue an available, safe avenue
 

of escape might properly be brought to the attention of the
 

factfinder as a factor in determining whether the defendant
 

acted in reasonable self-defense.19
 

However, as Judge Cardozo cautioned in People v Tomlins,
 

213 NY 240, 245; 107 NE 496 (1914), “[g]eneral statements to
 

the effect that one who is attacked should withdraw, must be
 

read in the light of the facts that led up to them.” Thus,
 

19See People v Walters, 223 Mich 676, 682-683; 194 NW 538


(1923) (jury was properly instructed that killing was not


justifiable if the defendant “renewed the affray” after the


deceased abandoned it); People v Meert, 157 Mich 93, 95, 100­

101; 121 NW 318 (1909) (opining that the defendant, who


carried a revolver to a saloon because he “was expecting” that


he would encounter his victim there, did not act reasonably


when he walked up to the victim and shot him because “[r]eady


means of escape were at hand . . . and no danger was to be


apprehended”); People v Robinson, 152 Mich 41, 47; 115 NW 997


(1908) (instruction that the defendant, who assaulted a man in


a barroom, had a duty to “retire” if he could safely do so


unless he was attacked with a deadly weapon or was in the


defense of property or others did not constitute error


requiring reversal because the defendant was in a place of


perfect safety when he assaulted the victim).
 

13
 
 

the generally applicable element of necessity contemplates
 

three reticulate rules that are applicable in certain specific
 

factual scenarios.
 

2. THREE DEPARTURES FROM THE GENERAL RULE OF NECESSITY
 

a. NO DUTY TO RETREAT FROM SUDDEN, VIOLENT ATTACK


 Although Michigan’s common law that was codified imposes
 

a duty to avoid using deadly force, it is clear that retreat
 

is never required in circumstances similar to those delineated
 

in Beard v United States, 158 US 550; 15 S Ct 962; 39 L Ed
 

1086 (1895), 20 the classic American “no duty to retreat” case:
 

when a person is violently attacked and it does not reasonably
 

appear that it would be safe to retreat.
 

The statement of the governing principles of self-defense
 

as set forth in People v Doe, 1 Mich 451, 456-457 (1850), is
 

indicative of the common-law rules that were in place when the
 

Legislature enacted Michigan’s murder statutes just four years
 

earlier. These principles remain apropos today and have not
 

20
 

[If a] defendant . . . had at the time


reasonable grounds to believe, and in good faith


believed, that the deceased intended to take his


life, or do him great bodily harm, he was not
 

obliged to retreat, nor to consider whether he
 

could safely retreat, but was entitled to stand his
 

ground, and meet any attack made upon him with a
 

deadly weapon, in such way and with such force as,


under all the circumstances, he, at the moment,


honestly believed, and had reasonable grounds to


believe, were necessary to save his own life, or to


protect himself from great bodily injury. [Beard,
 

supra at 564 (emphasis supplied).]
 

14
 
been modified since their implicit codification more than 150
 

years ago:
 

First. That a man who, in the lawful pursuit


of his business, is attacked by another under


circumstances which denote an intention to take
 

away his life, or do him some enormous bodily harm,


may lawfully kill the assailant, provided he use
 

all the means in his power, otherwise, to save his
 

own life or prevent the intended harm; such as
 

retreating as far as he can, or disabling his
 

adversary without killing him, if it be in his
 

[21]
 power.


Secondly. When the attack upon him is so


sudden, fierce and violent, that a retreat would
 

not diminish, but increase his danger, he may
 

instantly kill his adversary without retreating at
 

all.
 

Thirdly. When from the nature of the attack,


there is reasonable ground to believe that there is


a design to destroy his life, or commit any felony


upon his person, the killing of the assailant will


be excusable homicide, although it should
 

afterwards appear that no felony was intended.


[Emphasis supplied.]
 

The rules of self-defense as provided in Doe state the
 

obvious: If it is possible to safely avoid an attack then it
 

is not necessary, and therefore not permissible, to exercise
 

deadly force against the attacker. However, one is never
 

obliged to retreat from a sudden, fierce, and violent attack,
 

because under such circumstances a reasonable person would, as
 

a rule, find it necessary to use force against force without
 

retreating. The violent and sudden attack removes the ability
 

21Thus, where a threatened attack is not imminent, the


person being threatened may not lawfully exercise deadly force


in self-defense.
 

15
 
 

to retreat.22 Where immediate danger to life or great bodily
 

harm is threatened upon the innocent victim, he “cannot be
 

required when hard pressed, to draw very fine distinctions
 

concerning the extent of the injury that an infuriated and
 

reckless assailant may probably inflict.” People v Brownell,
 

38 Mich 732, 738 (1878). As Justice Holmes reasoned in Brown
 

v United States, 256 US 335, 343; 41 S Ct 501; 65 L Ed 961
 

(1921), “detached reflection cannot be demanded in the face of
 

an uplifted knife.” There, Justice Holmes concluded that “it
 

is not a condition of immunity that one in that situation
 

should pause to consider whether a reasonable man might not
 

think it possible to fly with safety . . .” Id., citing Rowe
 

v United States, 164 US 546, 558; 17 Sup Ct 172; 41 L Ed 547
 

(1896).23
 

22To hold that an innocent person has a duty to retreat


in the face of a violent assault would be tantamount to
 

holding such a person “responsible for having brought . . .


necessity upon himself, on the sole ground that he failed to


fly from his assailant when he might have safely done so[.]”


Erwin v State, 29 Ohio St 186, 199 (1876). Indeed, the


possibility of safe retreat cannot serve as a factor in


determining the gravity or mortality of the peril. To so hold
 

would be to require that the assailed “avoid the necessity by


retreating before his assailant.” Palmer v State, 9 Wy 40; 59


P 793, 795 (1900).
 

23Similarly, Wharton stated: “A man can only kill in selfdefense from necessity, whether he has a right to stand his


ground, or it is his duty to retreat; but in the one case he


can have that necessity determined in view of the fact that he


has a right to stand his ground, and on the other hand [where


he is involved in the sudden affray] he must show, as one


feature of the necessity, that he has retreated to the wall.”


(continued...)
 

16
 
 

In People v Macard, 73 Mich 15; 40 NW 784 (1888), this
 

Court reaffirmed that Michigan never recognized at common law
 

an obligation to retreat from a sudden and violent attack
 

before codification. In Macard, the defendant and his
 

neighbor had a history of mutual animosity. The defendant was
 

standing in or near a public road in front of his home when
 

his neighbor began advancing toward him from across the
 

street, carrying a gun and making threats. When the neighbor
 

continued to advance despite the defendant’s warning that he
 

stop, the defendant shot him. At his trial for murder, the
 

defendant asserted self-defense and argued that retreating
 

would have exposed him to greater danger. This Court reversed
 

the defendant’s conviction of manslaughter and granted him a
 

new trial on the basis that the trial court erred in
 

instructing the jury that the defendant was justified in
 

shooting “‘[i]f there was no reasonable opportunity or means
 

of avoiding what the [defendant] anticipated as an assault
 

with this deadly weapon”:
 

Go which way [the defendant] would, he would


only the more surely expose himself to the deadly


aim of his antagonist. In such case, about the


only question for the jury to determine was, did


the [defendant] in good faith believe this to be


his true situation? If he did, the jury should


have been told [he] was fully justified. . . . To
 

hold otherwise would be to destroy the right of


self-defense. It was not necessary for the
 

23(...continued)


Wharton, Homicide (3d ed), § 298, p 478. 


17
 
[defendant], if without fault, on being suddenly
 

assaulted by the use of a deadly weapon upon the
 

public highway or upon his own premises, to retreat
 

before using his weapon. An instant of delay might


have been at the expense of his life, and the law


requires no man to run such risks. [Id. at 21-22
 

(emphasis supplied).]
 

b. THE DUTY TO RETREAT: SUDDEN AFFRAY OR CHANCE MEDLEY
 

Michigan law imposes an affirmative obligation to
 

retreat, where safely possible, in one narrow set of
 

circumstances: where a defendant–who is not in his “castle”–
 

is voluntarily engaged in mutual, nondeadly combat that
 

escalates into sudden deadly violence. This represents the
 

only type of situation in which the English common law imposed
 

upon a defender an affirmative duty to “retreat to the wall,”
 

Pond, supra at 174-175; Erwin, supra at 195; Perkins & Boyce,
 

Criminal Law (3d ed), pp 1121-1123, 1126, and it is apparent
 

from our case law that Michigan adhered to this rule at the
 

time of the codification of our murder statute.
 

As explained by Professors Perkins and Boyce, by
 

reference to Foster, Crown Law (1762), the use of deadly force
 

in self-defense at English common law was considered in light
 

of the different positions of the parties involved. The first
 

scenario involved a defendant who was without fault:
 

One, entirely free from fault, is the victim
 

of an assault which was murderous from the
 

beginning. He is under no obligation to retreat .


. . but may stand his ground, and if he reasonably
 

believes it necessary to use deadly force to save
 

himself from death or great bodily harm, he is
 

18
 
privileged to do so. [Perkins & Boyce, supra at
 

1121 (emphasis supplied).] 


Thus, at common law the innocent victim of a murderous assault
 

had no affirmative duty to retreat; instead, if he reasonably
 

believed that it was necessary under the circumstances to
 

exercise deadly force, he could kill his assailant in selfdefense. This rule is consistent with the generally
 

applicable rules of self-defense as codified in Michigan’s
 

murder statutes, as discussed above. See Macard, supra at 21­

22; Lennon, supra at 300-301; Brownell, supra at 738; Pond,
 

supra at 177-178.
 

However, an affirmative obligation to retreat applied to
 

a voluntary participant in mutual combat: 


One who was the aggressor in a chance-medley


(an ordinary fist fight, or other nondeadly


encounter), or who culpably entered into such an


engagement, finds that his adversary has suddenly


and unexpectedly changed the nature of the contest


and is resorting to deadly force. This . . . is
 

the only type of situation which requires “retreat
 

to the wall.” Such a defender, not being entirely


free from fault, must not resort to deadly force if


there is any other reasonable method of saving


himself. Hence if a reasonable avenue of escape is


available to him he must take it unless he is in
 

his “castle” at the time. [Perkins & Boyce, supra


at 1121 (emphasis supplied).]
 

Thus, the original concept of a “‘duty to retreat to the wall’
 

applied not to the innocent victim of a murderous assault, but
 

only to the culpable participant of a chance-medley.” Perkins
 

19
 
& Boyce, supra at 1225.24 This principle was recognized by
 

this Court in Pond, supra at 175-176:
 

In [cases in which a defensive homicide
 

occurred in a sudden affray], the original assault


not being with a felonious intent, and the danger


arising in the heat of blood on one or both sides,


the homicide is not excused unless the slayer does


all which is reasonably in his power to avoid the


necessity of extreme resistance, by retreating


where retreat is safe, or by any other expedient


which is attainable. He is bound, if possible, to


get out of his adversary’s way, and has no right to


stand up and resist if he can safely retreat or


escape.
 

Accordingly, we conclude that at the time of the codification
 

of our first murder statute in 1846, the common-law rule in
 

Michigan recognized only one instance in which an affirmative,
 

specific duty to retreat applied, namely, when the defendant
 

was the voluntary participant in mutual combat.25
 

c. THE “CASTLE” DOCTRINE
 

i. RETREAT IS NOT A FACTOR IN ONE’S DWELLING
 

It is universally accepted that retreat is not a factor
 

in determining whether a defensive killing was necessary when
 

24It appears clear enough to us that “[c]ourts which


adopted [a] ‘no-retreat rule’ [were] frequently under the


false impression that this required departure from the English


common law.” Perkins & Boyce, supra at 1137. 


25Perkins refers to a third situation that is not relevant
 

to the matter at hand: “One who starts an encounter with a
 

murderous assault upon another, or who willingly engages in


mutual combat with malice aforethought . . . has forfeited all


right of self-defense during that contest.” Perkins & Boyce,


supra at 1121. That is consistent with the Michigan rule that


one who is an aggressor may not avail himself of the defense.


See Heflin, supra at 509. See also n 8.
 

20
 
 

it occurred in the accused’s dwelling:
 

Regardless of any general theory to retreat as


far as practicable before one can justify turning


upon his assailant and taking life in self-defense,


the law imposes no duty to retreat upon one who,


free from fault in bringing on a difficulty, is


attacked at or in his or her own dwelling or home.


Upon the theory that a man’s house is his castle,


and that he has a right to protect it and those
 

within it from intrusion or attack, the rule is
 

practically universal that when a person is
 

attacked in his own dwelling he may stand at bay


and turn on and kill his assailant if this is
 

apparently necessary to save his own life or to


protect himself from great bodily harm. [40 Am Jur


2d, § 167, p 636.] 


The rule has been defended as arising from “‘an instinctive
 

feeling that a home is sacred, and that it is improper to
 

require a man to submit to pursuit from room to room in his
 

own house.’” People v Godsey, 54 Mich App 316, 319; 220 NW2d
 

801 (1974) (citations omitted). Moreover, in a very real
 

sense a person’s dwelling is his primary place of refuge.
 

Where a person is in his “castle,” there is simply no safer
 

place to retreat.
 

ii. THE REACH OF THE CASTLE DOCTRINE
 

Defendant, who was outside his home in the driveway or
 

yard between the home and a detached garage at the time of the
 

homicide, contends that he was wholly excused from any
 

obligation to retreat because he was in his “castle.” We
 

disagree and hold that the castle doctrine, as it applied in
 

this state and as was codified in our murder statute in 1846,
 

applies solely to the dwelling and its attached appurtenances.
 

21
 
Although many courts have extended the castle exception to
 

other areas,26 we conclude that there is simply no basis in the
 

case law of this state, contemporaneous with the enactment of
 

our initial murder statute, to justify extending the rule in
 

this manner.
 

It is unknown whether the English common law applied the
 

castle doctrine–which, as we have noted, was relevant only to
 

the voluntary participant in a nondeadly encounter–to areas
 

beyond the dwelling. As noted by Professors Perkins and
 

Boyce, “the scope of [the] special privilege granted to one so
 

far at fault might have been limited to the actual building
 

[but this] is mere speculation.” Id. at 1134-1135. Because
 

the only indication we have of the castle doctrine as it
 

applied in Michigan at the time of the codification of our
 

murder statute is that it applied “in the dwelling,” Pond,
 

26The majority of jurisdictions employing the castle


doctrine have extended the doctrine to the curtilage


surrounding the home. See Dressler, Understanding Criminal


Law (3d ed), § 18.02[C][3], p 228. The doctrine has also been
 

extended in several jurisdictions to numerous areas away from


the dwelling: cars, businesses, and homes owned by third


parties, to name a few. Because the Legislature codified the


common-law rules as they existed in 1846, this Court has no


authority to act on different policy determinations concerning


the expansion of the castle doctrine. Thus, we leave it to


the Legislature to decide whether there are other places in


which a defendant’s failure to retreat cannot be considered as
 

a factor in determining whether it was necessary for him to


exercise deadly force in self-defense. We note that many


states have legislatively addressed the self-defense and


retreat issues that are presented in this case. See, e.g.,


Model Penal Code, § 3.04; Ala Code, § 13A-3-23 (1982); Conn


Gen Stat, § 53a-19. 


22
 
supra at 176 (emphasis supplied), we lack the authority to now
 

extend this rule to areas beyond “the dwelling” itself.
 

Defendant contends that this Court’s statements in Pond
 

indicate that Michigan’s common law extended the castle
 

doctrine to the curtilage surrounding the home. However, we
 

agree with the prosecution’s contention that Pond did not in
 

any way purport to extend the self-defense castle exception to
 

the curtilage area surrounding the dwelling.27 With respect
 

to self-defense, this Court explained in Pond that
 

[t]he danger resisted must be to life, or of


serious bodily harm of a permanent character; and


it must be unavoidable by other means. Of course,


we refer to means within the power of the slayer,


so far as he is able to judge from the
 

circumstances as they appear to him at the time.
 

27The Pond Court held that, for the purpose of the


defendant’s claim that he killed the victim in resisting a


violent and forcible felony upon a dwelling, an outlying nethouse was “a dwelling or part of the dwelling” of the


defendant because it was near the dwelling house and was used


as a permanent dormitory for his servants. Id. at 181-182;


see also id. at 164-167. Because this Court considered the
 

net-house to be a dwelling not for the purpose of the selfdefense castle doctrine but instead for the purpose of a


completely different defense, this holding is not relevant to


our inquiry. Moreover, whether this outlying building would
 

have been considered a “dwelling” for the purpose of selfdefense is not an inquiry that aids us in determining whether


the castle doctrine applies to open areas within the
 

curtilage. Because the Court of Appeals cited Pond for the
 

proposition that the self-defense castle exception–providing


that no person is required to retreat within his dwelling


before exercising self-defense–extends to “inhabited
 

outbuildings,” we wish simply to point out that (1) Pond does
 

not stand for this proposition and (2) as the case at bar does


not involve an inhabited outbuilding, we need express no


opinion concerning whether the castle doctrine would apply to


such a building.
 

23
 
A man is not, however, obliged to retreat if
 

assaulted in his dwelling, but may use such means


as are absolutely necessary to repel the assailant
 

from his house, or to prevent his forcible entry,


even to the taking of life. But here, as in the


other cases, he must not take life if he can


otherwise arrest or repel the assailant. [Emphasis


supplied.]
 

This statement of the castle rule, taken from a case issued
 

quite contemporaneously with the enactment of our murder
 

statute, provides no basis from which to conclude that the
 

rule applied anywhere but “in [the] dwelling,” that is, an
 

inhabited building and its attached appurtenances.28
 

Pond, therefore, does not allow us to conclude that the
 

castle doctrine, so far as it was a part of the common law of
 

this state when our murder statute was enacted, extended to
 

the curtilage surrounding the dwelling. Instead, by providing
 

essentially the sole indication, contemporaneous with the
 

enactment of the murder statute, concerning whether and to
 

what extent any duty to retreat existed in our common law,
 

Pond establishes that the castle doctrine applies in this
 

State only to a residence. Thus, for example, while the
 

castle doctrine applies to all areas of a dwelling–be it a
 

28Contemporaneous dictionary definitions wholly support


our conclusion. See, e.g., Worcester, Dictionary of the
 

English Language (Brewer and Tileston, 1864), defining


“dwelling” as “[h]abitation; place of residence; residence;


abode; dwelling-place”; Webster’s American Dictionary of the
 

English Language (1828) (accord); The Oxford English
 

Dictionary (1989), providing examples of the usage of the word


“dwelling” from the years 1340 through 1863 as meaning “[a]


place of residence; a dwelling-place, habitation, house.” 


24
 
 

room within the building, a basement or attic, or an attached
 

appurtenance such as a garage, porch or deck–it does not apply
 

to open areas in the curtilage that are not a part of a
 

dwelling. 


Defendant additionally argues that Lilly provides a basis
 

for extending the castle exception to the curtilage. In
 

Lilly, the defendant was attacked at night on his property in
 

a passageway between his house and a new house that he was
 

constructing. The defendant stabbed and killed the attacker,
 

a farmhand whom he had recently discharged and who had earlier
 

that day threatened the defendant with extreme personal
 

violence. At the defendant’s trial for murder, the trial
 

court instructed the jury as follows:
 

“If you find that . . . [the defendant] could


have saved himself from all serious harm by


retreating or calling for assistance, and the


defendant so knew or believed, but that he did not


do so; but stood his ground and resisted [the


farmhand], and in such resistance killed [him],


such killing would not be justifiable or excusable.
 

“If [the defendant] believed that [the


farmhand] came to his premises on the evening of


the homicide with the intention of seeking a combat


with him, and that he sought him for that purpose


and the defendant so knew, then it was [the


defendant’s] duty to have avoided [him], and to


have avoided such combat by all reasonable means


within his power, and if he chose to stand up and


resist the assault when he might have avoided it, .


. . such killing would not be justifiable.” [Id.
 

at 275.]
 

This Court set aside the defendant’s conviction for
 

manslaughter and ordered a new trial, holding that the jury
 

25
 
instructions improperly suggested to the jury that the facts
 

would warrant findings that were not supported by the
 

evidence, “especially that defendant did not make reasonable
 

efforts to avoid deceased and avert his attack.” Id.
 

Furthermore, this Court held, the instructions were improper
 

because they 


indicated to the jury . . . [that] it was incumbent


upon [the defendant] to fly from his habitation


where his wife and children were, in order to


escape danger instead of resisting the aggressor.


Such is not the law. The jury should have been


instructed in effect that if they were satisfied


that [the defendant] being at his own house had


reason to believe and did believe from [the


farmhand’s] previous and present language, manner


and actions, and what had already taken place, that


it was necessary to inflict the wounds he did


inflict . . . to save his own life or to protect


himself from danger of great bodily harm, he was


excused. 


. . . The charge was inconsistent with the


view here explained, and it conveyed the idea that


if help was within call and that defendant so


believed, then his act was not lawful self-defense.


[Id. at 275-276.] 


We do not agree with defendant’s assertion that Lilly
 

abrogates the necessity element of self-defense where the
 

accused kills an assailant within the curtilage of his
 

dwelling. Instead, Lilly reaffirms that the fundamental
 

inquiry with respect to a claim of self-defense is whether the
 

defendant reasonably believed that it was necessary to utilize
 

deadly force against his aggressor. Lilly further establishes
 

that the defendant was not required to leave his premises–
 

26
 
 

thereby subjecting his wife and children to danger in his
 

absence–or to seek aid from third parties. Lilly simply did
 

not involve the castle exception. 


In short, there is no basis in our case law for supposing
 

that Michigan ever recognized an extension of the doctrine
 

beyond the inhabited “dwelling” itself at the time the commonlaw rules were codified. Instead, we adhere to this Court’s
 

formulation of the doctrine in Pond, supra at 176, that “[a]
 

man is not . . . obliged to retreat if assaulted in his
 

dwelling” (emphasis supplied). Thus, the castle doctrine is
 

relevant only to acts of self-defense that take place in the
 

dwelling; the doctrine has no application to “a conflict
 

outside the home.” People v Stallworth, 364 Mich 528, 535;
 

111 NW2d 742 (1961).29
 

C. APPLICATION
 

In this case, defendant requested that the jury be
 

instructed in accordance with CJI2d 7.17, which is titled “No
 

Duty to Retreat While in Own Dwelling” and which provides that
 

a person assaulted in his own home does “not have to try to
 

29Accordingly, in Stallworth, this Court held that the


jury’s rejection of the defendant’s claim of self-defense,


resulting in a verdict of guilty of manslaughter, was not


against the great weight of the evidence where there was


testimony that the killing took place on the sidewalk outside


the defendant’s dwelling: This testimony portrayed “a conflict


outside the home where it would have been possible for the


jury to conclude that defendant might have retreated to avoid
 

further trouble.” Id. at 535 (emphasis supplied). 


27
 
retreat or get away,” but may “stand his ground and resist the
 

attack.” The trial court denied defendant’s request and
 

instead instructed the jury in accordance with CJI2d 7.16,
 

which is titled “Duty to Retreat to Avoid Using Deadly Force.”
 

We hold that defendant was not entitled to the requested
 

instruction. Defendant was not in his dwelling or an attached
 

appurtenance when he killed Carter. He was outside his home
 

in the yard. 


Nevertheless, as we have explained, defendant was
 

entitled to an instruction that adequately conveyed to the
 

jury that he was not required to retreat if it was necessary
 

for him to exercise deadly force under the circumstances as
 

they reasonably appeared to him. While we suggest that CJI2d
 

7.16 be revised to further comport with the principles
 

expressed in this opinion, the language of the instruction
 

accurately conveyed to defendant’s jury that the baseline
 

inquiry is necessity:
 

By law, a person must avoid using deadly force


if he can safely do so. If the defendant could
 

have safely retreated but did not do so, you can


consider that fact along with all the other
 

circumstances when you decide whether he went


farther in protecting himself than he should have.
 

However, if the defendant honestly and
 

reasonably believed that it was immediately
 

necessary to use deadly force to protect himself
 

from an [imminent] threat of death or serious
 

injury, the law does not require him to retreat.


He may stand his ground and use the amount of force


he believes necessary to protect himself.
 

28
 
This instruction was properly given under the circumstances of
 

this case. Pursuant to this instruction, the jury was
 

permitted only to consider whether defendant could have safely
 

retreated under the circumstances as they reasonably appeared
 

to him. The second portion of this instruction further
 

emphasized that there is never a duty to retreat if the
 

accused reasonably and honestly believes that he is in
 

imminent harm and that it is necessary to exercise deadly
 

force.30 Moreover, the jury was given a comprehensive general
 

self-defense instruction (CJI2d 7.15) that further explained
 

the relevant principles and additionally permitted the jury to
 

“consider how the excitement of the moment affected the choice
 

the defendant made” in exercising deadly force.
 

V. CONCLUSION


 We hold that the cardinal rule, applicable to all claims
 

of self-defense, is that the killing of another person is
 

30There might be circumstances in which an instruction


permitting the jury to consider a defendant’s failure to


retreat would be improper; for instance, if the defendant was


inside his dwelling when he was attacked or if the undisputed


evidence established that he was suddenly and violently


attacked. See, e.g., Macard, supra. In such a case there
 

would be no basis for an instruction allowing the defendant’s


failure to retreat to be considered in determining whether he


acted in lawful self-defense. In the instant case, the


parties disputed whether defendant had any reason whatsoever


to believe that he was in danger. Thus, it was properly


within the province of the jury to determine whether defendant


honestly and reasonably believed that it was necessary to


exercise deadly force. 


29
 
justifiable homicide if, under all the circumstances, the
 

defendant honestly and reasonably believes that he is in
 

imminent danger of death or great bodily harm and that it is
 

necessary for him to exercise deadly force. As part and
 

parcel of the “necessity” requirement that inheres in every
 

claim of lawful self-defense, evidence that a defendant could
 

have safely avoided using deadly force is normally relevant in
 

determining whether it was reasonably necessary for him to
 

kill his assailant. However, (1) one who is without fault is
 

never obligated to retreat from a sudden, violent attack or to
 

retreat when to do so would be unsafe, and in such
 

circumstances, the presence of an avenue of retreat cannot be
 

a factor in determining necessity; (2) our law imposes an
 

affirmative “duty to retreat” only upon one who is at fault in
 

voluntarily participating in mutual nondeadly combat; and (3)
 

the “castle doctrine” permits one who is within his dwelling
 

to exercise deadly force even if an avenue of safe retreat is
 

available, as long as it is otherwise reasonably necessary to
 

exercise deadly force. 


Defendant was not entitled to a “castle exception”
 

instruction in this case because he was in his yard and not in
 

his dwelling when he used deadly force. However, defendant
 

was entitled to an instruction that adequately conveyed to the
 

jury that, although he was required to avoid using deadly
 

force if possible, he had no obligation to retreat if he
 

30
 
honestly and reasonably believed that he was in imminent
 

danger of great bodily harm or death and that it was necessary
 

to use deadly force in self-defense. The standard jury
 

instruction that was given adequately imparted these
 

principles. Accordingly, we vacate the decision of the Court
 

of Appeals in part and affirm defendant’s convictions for the
 

reasons expressed in this opinion. 


CORRIGAN, C.J., and WEAVER, TAYLOR, and MARKMAN, JJ.,
 

concurred with YOUNG, J.
 

CAVANAGH and KELLY, JJ., concurred in the result only.
 

31