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3. If the homeowner is charged with second-degree assault, which is defined in the jurisdiction as «maliciously causing serious physical injury to another,» he is
Plagued by neighborhood youths who had been stealing lawn furniture from his backyard, a homeowner remained awake each night watching for them. One evening the homeowner heard noises in his backyard. He yelled out, warning intruders to leave. Receiving no answer, he fired a shotgun filled with nonlethal buckshot into bushes along his back fence where he believed the intruders might be hiding. A six-year-old child was hiding in the bushes and was struck in the eye by some of the pellets, causing loss of sight.
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A is incorrect. The child's status as a trespasser does not automatically allow the homeowner to inflict serious bodily harm. In addition, the homeowner's belief that the force would be non-deadly would not negate the finding that he acted maliciously.
B is incorrect. A finding of malice does not require the intent to kill or to cause serious physical injury. Malice can also be shown by the homeowner acting extremely recklessly with regard to human life.
D is incorrect. This is a misstatement of the law regarding the use of force. The homeowner, when he fired a shotgun into bushes by his back fence, acted maliciously and caused a serious injury to another. He should be found guilty of second degree assault.