State v. Bonanno

Defendant was convicted in the Camden County Court of second degree murder
and he appealed. The Superior Court, Appellate Division affirmed, 113
N.J.Super. 210, 273 A.2d 392, and certification was granted. The Supreme
Court, Mountain, J., held that if defendant was standing at his own doorway,
homicide victim approached and commenced to mount steps, drew knife and
threatened to kill defendant, and if defendant reasonably believed he was in danger
of losing his life or suffering serious bodily harm, defendant was under no duty to
retreat but might stand his ground and resist attack even to extent of employing
deadly force.
Reversed and remanded.


*516 **346 Edward P. Hannigan, Asst. Deputy Public Defender, for appellant
(Stanley C. Van Ness, Public Defendant, attorney; Edward P. Hannigan, Newark,
of counsel and on the brief).
*517 Jerome Jay Cohen, Asst. Prosecutor, for respondent (Donald Bigley,
Camden County Prosecutor, attorney; Jerome Jay Cohen, Camden, on the brief).

The opinion of the Court was delivered by

MOUNTAIN, J.
Defendant was convicted of murder in the second degree. Following an affirmance
by the Appellate Division, 113 N.J.Super. 210, 273 A.2d 392, this Court granted
certification. 58 N.J. 97, 275 A.2d 153 (1971).
The essential facts are set forth in the opinion of the Appellate Division and need be only briefly restated here. On the evening of the fatal shooting, defendant, a resident of Camden, had gone to Philadelphia to play cards with friends. Before departing, for some reason which is not explained, he placed a loaded revolver in the belt of his trousers. Failing to find the diversion he sought, he returned sooner than had been anticipated and found his wife gone from home. She was in fact attending a christening party in the neighborhood. Upon her return shortly thereafter, defendant 'smacked' her in the face, apparently because she had left the house without his permission. His eleven year old stepdaughter, a witness to the incident, hastened back to the party and informed her uncle Carlos, defendant's
brother-in-law, of what had occurred. Carlos immediately armed himself with a knife from the kitchen and set out for his sister's home. The several statements of the actual encounter that ensued differ somewhat, but it is agreed that defendant
was standing in the doorway of his home as Carlos approached the house and commenced to mount the porch steps. There was testimony that at about this point Carlos drew his knife and uttered some imprecation of a threatening nature.
Defendant fired the revolver, with which he was still armed, inflicting a wound from which Carlos shortly died.
The ground of appeal which we think most significant relates to the right of a defendant to invoke the plea of self-defense as a justification for a killing, and more
particular *518 the application of the doctrine of retreat as a corollary to this rule.
[1] N.J.S.A. 2A:113--6 provides, in pertinent part, that '(a)ny person who kills another * * * in his or her own defense, * * * is guiltless and shall be totally
acquitted and discharged.' At early common law self-defense did not justify homicide. A defendant who slew another to save his own life was nevertheless
convicted and forced to seek relief as a suppliant for mercy. 'The man who commits homicide by misadventure or in self-defense deserves but needs a pardon.' 2 Pollock & Maitland, History of English Law, (2d ed. 1898) 479. Later, of course, the right to protect oneself became recognized as a complete defense to a charge of homicide. This appears always to have been the law in New Jersey.[FN1] But self-defense may be successfully invoked only in those cases where the act of killing is necessary or reasonably appears to be so in order to
preserve the defendant's life or to protect him from serious bodily harm. State v. Hipplewith, 33 N.J. 300, 316, 164 A.2d 481 (1960). 'Self-defense is measured
against necessity.' State v. Abbott, 36 N.J. 63, 69, 174 A.2d 881 (1961).

FN1. In the case of State v. Wells, 1 N.J.L. 424 (Sup.Ct.1790), the right of self-protection is clearly recognized as a complete defense to a charge of homicide. An Act for the Punishment of Crimes, adopted March 18, 1796, sets forth the defense in much the same language as that of our present statute. Paterson, Laws, 220 s 65.



**347 [2] This brings us to a consideration of the question as to whether, and under what circumstances, a man must retreat when confronted by an assailant, before he may justifiably kill another in his own defense. Specifically, was the
defendant in this case, standing on the threshold of his own home, required to seek refuge indoors rather than resort to deadly force? The doctrine of retreat may be broadly stated as requiring one who is attacked to withdraw, before employing
deadly force in his own defense, where there lies open a safe avenue of escape and he is consciously aware of this fact; he may stand his ground and not retreat, if he *519 employs less than deadly force. State v. Abbott, Supra, at 71--72, 174 A.2d 881. The result of an improper resort to deadly force, within the concept of this rule, is to deny the defendant the benefit of a plea of self-defense. Some other
jurisdictions reject the doctrine of retreat, holding that one who is attacked may defend himself, even to the point of killing his assailant, as long as he had a right to be at the place where he was attacked. See, for example, State v. Blanton, 111 Ohio App. 111, 170 N.E.2d 754, 758 (Ct.App. 1960); People v. Washington,
54 Ill.App.2d 467, 204 N.E.2d 25, 27 (App.Ct.1965); Annot. 18 A.L.R. 1279,
1283 (1922). This state has, however, heretofore accepted the doctrine of retreat as an expression of the more humane and enlightened rule. State v. Abbott, Supra.
We continue to adhere to this view. 'When it comes to a question whether one man shall flee or another shall live, the law decides that the former shall rather flee than that the latter shall die.' Commonwealth v. Drum, 58 Pa.St. 9, 22 (1868).
[3] While we take the general doctrine of retreat to be settled in this State, the case before us presents an exception to this rule which has not hitherto been
squarely presented to this court.[FN2] Must a man retreat when attacked in his own dwelling house? The well nigh universal rule, with which we are in accord,
declares that under such circumstances no duty to retreat arises.

FN2. A view in accord with the rule stated above is probably implicit
in the holding in State v. Pontery, 19 N.J. 457, 475, 117 A.2d 473
(1955).



A man is not bound to retreat from his house. He may stand his ground there and kill any person who attempts to commit a felony therein, or who attempts to enter by force for the purpose of committing a felony, or of inflicting great bodily harm upon an inmate. In such a case the owner or any member of the family, or even a lodger in the house, may meet the intruder at the threshold, and prevent him from
entering by any means rendered necessary by the exigency, even to the taking of his life, and the homicide will be justifiable. (Clark & Marshall, Law of Crimes (7th ed.) Sec. 7.03, p. 493)
*520 See also 1 Wharton, Criminal Law and Procedure (Anderson ed. 1957), s 239.
At this time, however, we limit our acceptance of this rule to those cases where the defendant is actually in his dwelling house. A porch or other similar physical
appurtenance is deemed to come within this concept.
In State v. Provoid, 110 N.J.Super. 547, 554, 266 A.2d 307 (App.Div.1970), Judge Goldmann noted that, 'As to just what constitutes the limits of a 'dwelling,'
the majority of jurisdictions in this country have concluded that the privilege of self defense without retreat extends to anywhere within the 'curtilage' of a man's home.' This is, indeed, the majority view, and yet one may question its soundness.
See Beale, Homicide in Self-Defense, 3 Colum.L.Rev. 526, 541--42 (1903).
'Curtilage' is not a term that can in all cases be precisely defined. Nor are all definitions enlightening. For instance an early case in this state tells **348 us that 'One of the definitions of curtilage is, a field next to and belonging to a messuage. *
* *' Edwards v. Derrickson, 28 N.J.L. 39, 44--45 (Sup.Ct.1859). It may be seriously doubted whether a concept arising in the mediaeval land law furnishes an intelligent guide in determining whether the taking of a life is to be justified. What,
also, of a disputed boundary line? [FN3] Is the justification for a slaying to rest upon the resolution of a title issue? If a defendant can show good title to the
ground upon which he stood when he fired the fatal shot, is he to be exonerated, whereas if the land is later determined to be that of his neighbor, is he to be found guilty? Might not the better rule be that a duty to retreat should exist except as to the dwelling house itself, defined, as stated above, to include a porch or other similar appurtenance? This case does not raise the issue and we leave its resolution
to another day.

FN3. This issue appears to have been present in State v. Abbott, Supra, 136 N.J. at 67, 174 A.2d 881, but because of a charge bythe trial court favorable to defendant, did not become matter ofappellate review.



*521 [4] During summation the assistant prosecutor, in commenting upon the
alternative courses of action open to defendant at the time of the encounter, said, 'What could this defendant have done? Gone in the house and shut the door? Possibly.' This statement was clearly capable of leaving in the minds of the jury the
thought that the defendant perhaps should have retreated indoors rather than have
done what he did. At the conclusion of the court's charge, which had made no
mention of retreat, defense counsel asked that the charge be in this respect supplemented. He specifically stated, 'I respectfully ask that Your Honor instruct the jury that the man doesn't have to run from his own home.' After some further discussion during which the judge questioned whether the instruction should be given, defense counsel concluded, 'I leave it to Your Honor's discretion.' Nothing
further was done. We think the court's discretion should have been exercised in favor of giving a supplementary instruction on the subject of retreat. Had the jury known that defendant had no legal duty to withdraw indoors, this knowledge
would almost certainly have eradicated any doubt unfavorable to defendant that the assistant prosecutor's comment may have engendered. Furthermore, and quite apart from anything arising from the assistant prosecutor's remark, it would appear from the record that defendant was entitled to a charge to the effect that if the jury believed from the evidence before it that he was standing at his own doorway, that Carlos approached and commenced to mount the steps, that he drew a knife and
threatened to kill defendant and that defendant reasonably believed he was in danger of losing his life or suffering serious bodily harm, he was under no duty to retreat but might stand his ground and resist the attack even to the extent of employing deadly force. Since the giving of such an instruction might well have
resulted in an acquittal, the failure so to charge requires a reversal.
For the reasons set forth above the decision of the Appellate Division is reversed
and the case remanded for a new trial.

For reversal and remandment: Chief Justice WEINTRAUB and Justices
JACOBS, FRANCIS, PROCTOR, SCHETTINO and MOUNTAIN--6.

For affirmance: None.
N.J. 1971.
END OF DOCUMENT
Copr. (C) West 2002 No Claim to Orig. U.S. Govt. Works