South Carolina Requests to Charge – Criminal (2018)


§ 6-13 Defense of Habitation

The defendant has raised the defense of habitation.

The defense of habitation is the defense of one’s dwelling house. If the defendant or a member of the defendant’s household is attacked in the defendant’s own home, the defendant may use the force which appears to be needed to protect himself or his household from death or serious bodily injury. When attacked in his own house, the defendant may justify or excuse the killing of his assailant if such act is apparently necessary to save his own life or to protect himself from great bodily harm.

If a trespasser refuses to leave the dwelling house at the request of the householder defendant, the defendant may use the necessary force to eject the trespasser. If, in the effort to eject the trespasser, the life or safety of the defendant or a member of the defendant’s household is jeopardized, the defendant may kill the trespasser. However, the defendant may not use more force than is reasonably necessary to eject the person from the premises. The defendant should not in the first instance resort to immediate force to repel the intruder. The kind and degree of force which are justified depend on the conduct of the intruder.

Even though a person has entered the dwelling at the invitation of the defendant or a member of the household, his subsequent conduct may be such as to justify the defendant in ordering his departure. The person becomes a trespasser if the person refuses to leave when asked. Upon the person’s refusal to depart, the defendant is not required to yield as a mode of avoiding an altercation and apprehended violence, but may use force reasonably necessary or apparently necessary to eject him, and no more. The defendant should not, in the first instance, resort to force to repel the intruder. The kind and degree of force which are justified depend on the conduct of the intruder.

If, while legitimately exercising in good faith the right to eject a trespasser, the defendant is attacked by the trespasser and fears death or serious bodily harm, the defendant would be without fault in bringing on the difficulty. An element that is necessary to the defense of habitation is that the defendant be without fault in bringing about the difficulty. Whether the defendant was acting in good faith in attempting to eject the victim and was attacked in the process is a question for you to determine.

The law permits the occupant of the home to use such force even to the taking of human life, as may be reasonably necessary to accomplish the expulsion. If engaged in the exercise in good faith of his right to eject such trespasser, he is without fault in bringing on the difficulty and would not have to retreat. The belief in the necessity of using deadly force in the defense of habitation must be reasonable. This right of an occupant to expel a trespasser and to use such force as is necessary, even to killing him, is limited to the place of habitation and curtilage.

There is no duty to retreat where an attack occurs in one’s home or place of business. The absence of a duty to retreat also extends to the curtilage of a home. Curtilage is such space as is necessary and convenient, and is habitually used for family purposes, including an adequate yard and garden and room for necessary outbuildings. Curtilage includes outbuildings, yard around dwelling, and garden. It also includes garages, driveways, courtyards, and parking areas. Yards, courtyards, driveways and parking areas usually and customarily used in common by occupants of apartment houses, condominiums and other such complexes with other occupants thereof constitute a part of the curtilage of a specifically described apartment or condominium or other living unit thereof.