About 3 years ago I defended a murder case (successfully) in which the trespasser was found on a third story balcony in the middle of the night. He then climbed down to a second story porch and stood on the railing. The female homeowner was freaked, had two little twin girls in bed on the third floor and called her ex-husband to come over ASAP. Th ex lived a few doors down. He had the trespasser at gunpoint and told him he was armed and don't move. So the stupid trespasser (later determined to be drunk) jumped down from the railing to the floor of the 2nd story porch (he had been on the third story window peeking) onto the same level as the homeowner. The ex-husband was inside the house, pointing a .357 mag out the window maybe 6 feet away from where the trespasser was standing (on the railing) and when the trespasser jumped, he drilled him.
Turned out the trespasser was an intoxicated 25 year old kid looking for a piece or ass (which he'd gotten once a month or two earlier) from the ex-husband's wife. Course, the ex-husband didn't know that and didn't have a clue who the trespasser was at the time of the shoot.
The argument that worked was, 2:00 in the morning, on the third and second floor of a house in a remote part of the county, a stranger peeking in the third story windows where your little girls are sleeping. What'sa reasonable parent to do? Trespasser could have been armed and could have been anyone, a rapist, a gang-banger, chi mo, who knows. Ex-husband gave him a firm order not to move and warned him he had a gun on him and would shoot and the kid jumped anyway.
Jury acquitted. Said it was a perfectly reasonable response from the ex-husband. We could not use California's Castle Doctrine (presumption that deadly force used inside the home against an intruder is lawful) because the trespasser was not inside the home.
Tragic case, actually. Alcohol, marijuana, trespassing and burglary is plain stupid when you don't have a clue whether the homeowner is armed or not.
Jordan
DITTOS and in this situation based on your information I would have done the same thing.
