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June 9, 2000

Record No. 991786






PRESENT: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and
Kinser, JJ., and Whiting, Senior Justice


In this appeal, we decide whether a deadly weapon may be
brandished in defense of personal property.

Jon Douglas Alexander was charged with attempted murder in
Rockbridge County. At a preliminary hearing on that charge, the
general district court reduced the charge to that of brandishing
a firearm in violation of Code ? 18.2-282 and convicted
defendant Alexander of that charge.[1]

The defendant appealed his conviction to the circuit court. In
a jury trial, the defendant tendered, but the court refused to
grant, instructions advising the jury that if it found the
defendant had brandished the firearm because he reasonably felt
that it was necessary to protect his personal property from loss,
the jury could find him not guilty. The jury found the defendant
guilty of the crime charged and the circuit court entered
judgment on the verdict.

Upon the defendant’s appeal, the Court of Appeals of Virginia
held that the trial court had erred in refusing the tendered
instructions, and it reversed and remanded the case. Alexander
v. Commonwealth
, 28 Va. App. 771, 780, 508 S.E.2d 912, 916;
30 Va. App. 152, 153, 515 S.E.2d 808, 808 (1999)(en banc). We
granted the Commonwealth an appeal from that judgment.

The facts are recited in an agreed statement. In accordance
with familiar appellate principles, we will view those facts in
the light most favorable to the proponent of the refused
instruction, the defendant in this case. Blondel v. Hays,
241 Va. 467, 469, 403 S.E.2d 340, 341 (1991).

Michael T. Eustler, an agent of the lienholder of the
defendant’s vehicle, sought to repossess the vehicle. When
Eustler arrived at the defendant’s home, the defendant agreed to
its repossession provided he could remove certain papers and
tools valuable to him and having nothing to do with the vehicle
being repossessed. Although Eustler agreed to permit the
defendant to retrieve the items, Eustler "jacked up"
the vehicle as the defendant was partially in the front seat.
Eustler approached the defendant in a belligerent manner, and
demanded the keys to the vehicle.

Feeling threatened, the defendant entered his house and
emerged with the keys as well as an unloaded rifle which he
placed in a flower bed that was close to the vehicle. When
Eustler again approached in a belligerent manner, the defendant
retrieved the rifle and held it at his side. The defendant felt
compelled to raise the rifle to his shoulder when he thought that
Eustler was going to assault him. However, the defendant did not
point the gun at Eustler until Eustler kept coming at him, at
which time, Eustler "finally backed off." Eustler later
called the police.

Although the trial court instructed the jury to find the
defendant not guilty if it found that he brandished the rifle in
reasonable defense of his person, the court refused to include a
similar provision in the instructions if the jury believed that
the defendant brandished the rifle in reasonable defense of his
property. The Court of Appeals agreed with the defendant’s
contention that he was entitled to the refused jury instruction.

We need not resolve the defendant’s claim that Eustler’s
actions were "unwarranted and illegal . . . in
attempting, by other than peaceful means, to unlawfully take
[defendant’s] personal property." Even if Eutsler’s actions
were unwarranted or illegal, the defendant, as an owner of
personal property, did not have the right to assert or defend his
possessory rights thereto by the use of deadly force. In Montgomery
v. Commonwealth
, 98 Va. 840, 842-43, 36 S.E. 371, 372 (1900),
we said:

The law is clearly stated by a learned judge in State v.
, 3 Ired. 186, 38 Am. Dec. 714, as follows: "When
it is said that a man may rightfully use as much force as is
necessary for the protection of his person and property, it
should be recollected that this rule is subject to this most
important modification, that he shall not, except in extreme
cases, endanger human life or do great bodily harm. It is not
every right of person, and still less of property, that can
lawfully be asserted, or every wrong that may rightfully be
redressed by extreme remedies. There is a recklessness—a
wanton disregard of humanity and social duty in taking or
endeavoring to take, the life of a fellow-being, in order to save
one’s self from a comparatively slight wrong, which is
essentially wicked, and the law abhors. You may not kill, because
you cannot otherwise effect your object, although the object
sought to be effected is right. You can only kill to save life or
limb, or prevent a great crime, or to accomplish a necessary
public duty." See, also, 1 Bishop on New C. L., secs. 839,
841, 850.

However, the defendant contends, and the Court of Appeals

held, that these principles do not apply when there is a mere
threat to use deadly force in protection of personal property. We
do not agree.

The threat to use deadly force by brandishing a deadly weapon
has long been considered an assault. Harper v. Commonwealth,
196 Va. 723, 733, 85 S.E.2d 249, 255 (1955). In Merritt v.
, 164 Va. 653, 658-59, 180 S.E. 395, 398 (1935),
we said:

Judge Moncure, in the Hardy Case, 17 Gratt. (58 Va.)
592, 600, [1867] quoted with approval from an old English case,
thus: "An assault is any attempt or offer with force or
violence to do a corporeal hurt to another, whether from malice
or wantonness, as by striking at him in a threatening or
insulting manner, or with such other circumstances as denote at
the time an intention, coupled with a present ability, of actual
violence against his person, as by pointing a weapon at him when
he is within reach of it."

Such a threat may give the threatened person a right to defend
himself by the use of a deadly weapon. McGhee v. Commonwealth,
219 Va. 560, 562, 248 S.E.2d 808, 810 (1978). Further, as the
dissenting opinion of the Court of Appeals notes,
"[p]ermitting one to threaten to use deadly force leads in
dangerous progression to an unacceptable conclusion. Here, the
victim would have been entitled to use deadly force to repel the
perceived threat." 28 Va. App. at 780, 508 S.E.2d at 916
(Judge Bumgardner, dissenting); 30 Va. App. at 153, 515 S.E.2d at
808 (en banc) (Judge Bumgardner, with whom Chief Judge
Fitzpatrick joins, dissenting).

Moreover, the owner of land has no right to assault a mere
trespasser with a deadly weapon. Montgomery, 98 Va. at
844, 36 S.E. at 373. Indeed, in Montgomery, it was the
landowner’s brandishing of a sharpened corn-cutter that provoked
the defendant’s physical assertion of his right of self-defense.
98 Va. at 841-43, 36 S.E. at 372-73.

For these reasons, we agree with the trial court that a deadly
weapon may not be brandished solely in defense of personal
property. Therefore, we conclude that the Court of Appeals erred
in reversing the trial court’s judgment. Accordingly, we will (1)
reverse the judgment of the Court of Appeals, (2) enter final
judgment here reinstating the sentencing order of the circuit
court, and (3) remand the case to the Court of Appeals with
directions to remand the case to the circuit court for the
enforcement of the sentencing order.

Reversed and remanded.


[1] As pertinent here, Code
?18.2-282 provides:

A. It shall be unlawful for any person to point, hold or
brandish any firearm, as hereinafter described, or any object
similar in appearance to a firearm, whether capable of being
fired or not, in such manner as to reasonably induce fear in the
mind of another or hold a firearm in a public place in such a
manner as to reasonably induce fear in the mind of another of
being shot or injured.