dissenting.
I respectfully dissent.
Defendant’s tendered instruction correctly states the principle that in some circumstances one may act in self-defense on the basis of apparent necessity. People v. Jones, 675 P.2d 9 (Colo.1984); People v. Tapia, 183 Colo. 141, 515 P.2d 453 (1973); Young v. People, 47 Colo. 352, 107 P. 274 (1910). The instruction as given failed to inform the jury adequately that apparent necessity as well as actual danger is sufficient to justify reasonable action in self-defense. In view of defendant’s tender of a correct instruction on the issue and the fact that a correct instruction was warranted by the evidence, the refusal of the trial court to give it prejudicial error. People v. Tapia, supra; People v. Duran, 40 Colo.App. 302, 577 P.2d 307 (1978). And, even though a general instruction was given, it was error for the trial court to refuse to give an instruction which .directed the jury’s attention to defendant’s theory of apparent necessity. See Nora v. People, 176 Colo. 454, 491 P.2d 62 (1971).
Nor did the district attorney’s agreement not to refute apparent necessity as a proper consideration in the law of self defense render the omission harmless. The duty to instruct the jury properly is ultimately that of the trial court. Rumley v. People, 149 Colo. 132, 368 P.2d 197 (1962).
Juries are instructed that the law which shall govern them is contained in the instructions given to them by the court. They are also instructed that argument of counsel is not to be considered as evidence or the governing law of the case. See Colo.J.I. — Grim. No. 1:03 and No. 3:01 (1974) and (1983). We may not presume that juries will disregard the court’s instructions in favor of defense argument.
Therefore, I would reverse the judgment and remand the cause for new trial.