State v. Miller

The appellants were convicted of assault in the second degree made upon one William Thant, and are entitled to a new trial by reason of an erroneous instruction given to the jury. The appellants ’ defense was that they were justified in using the force, which they did in their own self defense. The erroneous instruction reads as follows:

“In order to justify the assault, if there wás an assault, upon William Thant, the defendants must show a necessity for the use of force to prevent an attempt by William Thaut against the person of Henry Miller, Sr., and that no more force was used than…