State v. Bonanno

FOR EDUCATIONAL USE ONLY

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.

West Headnotes

[1] KeyCite Notes

203 Homicide
203V Excusable or Justifiable Homicide
203k108 Self-Defense
203k117 k. Necessity of Act in General. Most Cited Cases

Self-defense may be successfully invoked only in those cases where act of killing
is necessary or reasonably appears to be so in order to preserve defendant's life or
to protect him from serious bodily harm. N.J.S.A. 2A:113-6.

[2] KeyCite Notes

203 Homicide
203V Excusable or Justifiable Homicide
203k108 Self-Defense
203k118 Duty to Retreat
203k118(1) k. In General. Most Cited Cases
(Formerly 203k18(1))

Generally, one who is attacked must withdraw before employing deadly force in
his own defense where there lies open safe avenue of escape and he is consciously
aware of this fact; but person attacked may stand his ground and not retreat if he
employs less than deadly force.

[3] KeyCite Notes

203 Homicide
203V Excusable or Justifiable Homicide
203k108 Self-Defense
203k118 Duty to Retreat
203k118(3) k. When Attack Is on One's Own Premises. Most Cited
Cases

A man need not retreat when attacked in his own dwelling house or on porch or
similar physical appurtenance.

[4] KeyCite Notes

203 Homicide
203V Excusable or Justifiable Homicide
203k108 Self-Defense
203k118 Duty to Retreat
203k118(3) k. When Attack Is on One's Own Premises. Most Cited
Cases
(Formerly 203k18(3))

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.

[5] KeyCite Notes

203 Homicide
203III Manslaughter
203k34 k. Elements of Involuntary Manslaughter. Most Cited Cases

Involuntary manslaughter is unintentional homicide committed without excuse or
justification under circumstances not manifesting or implying malice. N.J.S.A.
2A:113-5.

[6] KeyCite Notes

203 Homicide
203III Manslaughter
203k33 k. Elements of Voluntary Manslaughter. Most Cited Cases

Voluntary manslaughter is intentional homicide done in sudden passion or heat of
blood without malice aforethought. N.J.S.A. 2A:113-5.

[7] KeyCite Notes

203 Homicide
203III Manslaughter
203k41 Provocation
203k45 k. Threatening or Insulting Language or Conduct. Most Cited
Cases

Verbal threats of homicide victim is insufficient alone to reduce homicide from
murder to manslaughter. N.J.S.A. 2A:113-5.

[8] KeyCite Notes

203 Homicide
203VIII Trial
203VIII(B) Questions for Jury
203k282 k. Grade or Degree of Offense. Most Cited Cases

Evidence that homicide victim mounted porch steps, drew knife, and said "I am
going to come and kill you" was sufficient to warrant submission of whether
homicide was manslaughter rather than murder. N.J.S.A. 2A:113-5.

[9] KeyCite Notes

203 Homicide
203III Manslaughter
203k36 k. Absence of Design to Effect Death. Most Cited Cases

Manslaughter is not confined to unintentional killings.
*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 by
the trial court favorable to defendant, did not become matter of
appellate 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.
Since there must be a new trial, we deem it appropriate to consider another issue
raised by the appellant which goes *522 to the correctness of the trial court's
charge on the subject of manslaughter. No objection is made to the instruction
given the jury upon this point in the principal charge. However, during the course
of their deliberations, the jury asked that the definition of manslaughter be
repeated. The judge, in complying, stated,
Now, what is manslaughter? Generally speaking, manslaughter is unintentional
killing in the heat of passion or in hot blood where there is an adequate
provocation. Although the crime of manslaughter is not mentioned in the
indictment, **349 you have a right and a duty to consider that offense. If you find,
beyond a reasonable doubt, that the defendant did kill the deceased but that it was
done when he had the intention to do less than great bodily harm, and that would
necessarily mean less than the intent to kill, the crime is manslaughter, or if you
should find, beyond a reasonable doubt, that the defendant did kill the deceased
but that the killing was done in a sudden state of rage or in the heat of anger or
with adequate provocation, the crime is manslaughter.
Now, you may raise this question in your mind, 'How do we possibly have
manslaughter in this case?'
Well, I am not suggesting, because I have no right to suggest what verdict you
should arrive at here, that is your province and it would be error for the Court to
suggest what you should do in that regard, but if you were to find here that when
the victim approached the defendant, and if he did brandish a knife and threatened
this defendant, if you were to find that on the basis of that this man temporarily lost
control of himself and he acted without any intent to kill but acted by reason of that
alleged provocation and as a result shot and killed this man, then you could find
that it was manslaughter.
Defendant contends that in confining manslaughter to unintentional killings and in
stating that to justify a verdict of manslaughter defendant must have acted without
intent to kill, the trial judge committed error. We agree.
[5] Manslaughter is nowhere defined in our statutes, although punishment for
conviction of the crime is specified. N.J.S.A. 2A:113--5. Generally this crime is
subdivided into (1) voluntary or intentional and (2) involuntary or unintentional,
manslaughter. 40 C.J.S., Homicide, s 37, pp. 897--898; State v. Prewitt, 104
Ariz. 326, 452 P.2d 500, 506 (1960); *523 People v. Miller, 114 Cal.App. 293,
299 P. 742 (1931). The latter, involuntary manslaughter, is an unintentional
homicide, committed without excuse or justification, under circumstances not
manifesting or implying malice. Clark & Marshall, Supra, s 10.12, p. 710; 1
Wharton, Supra, s 272, p. 577; 40 Am.Jur.2d, Homicide, s 70, p. 362. Death
occasioned by driving an automobile without regard for the life and safety of others
(now covered by statute, N.J.S.A. 2A:113--9), or causing death as a result of the
reckless handling of a loaded firearm, are examples of the common law crime of
involuntary manslaughter. State v. Morales, 111 N.J.Super. 521, 526, 269 A.2d
530 (App.Div.1970), certif. den., 57 N.J. 433, 273 A.2d 60 (1971). See Charge
to Grand Jury, 9 N.J.L.J. 167 (O & T. 1886); State v. Hardie, 47 Iowa 647, 29
Am.Rep. 496 (1878). Quite clearly we are not here dealing with this kind of
dereliction.
[6] Voluntary manslaughter, on the other hand, is an Intentional homicide
done in sudden passion or heat of blood, without malice aforethought. Clark &
Marshall, Supra, s 10.11, p. 693. It has been said with respect to an intentional
killing that 'to reduce the crime from murder to manslaughter it must appear that the
killing occurred during the heat of a passion resulting from a reasonable
provocation, a passion which effectively deprived the killer of the mastery of his
understanding, a passion which was acted upon before a time sufficient to permit
reason to resume its sway had passed.' State v. King, 37 N.J. 285, 300, 181
A.2d 158, 166 (1962). This is the category of manslaughter that concerns us here.
State v. Guido, 40 N.J. 191, 209--211, 191 A.2d 45 (1963); State v. McAllister,
41 N.J. 342, 353, 196 A.2d 786 (1964).
[7] [8] [9] Defendant testified that he had had two earlier fights with
his brother-in-law and that the latter, as he mounted the porch steps, drew the
knife and said 'I'm **350 going to come and kill you.' It was at this moment that
the fatal shot was fired. If the jury did not credit defendant's testimony that he
believed he was in danger of being killed or seriously injured, and hence rejected
the plea of self-defense, but nevertheless did believe that Carlos made the *524
menacing gesture just described, it might properly have considered such conduct
to be adequate provocation to reduce to manslaughter what would otherwise have
been murder. We note, however, that the words themselves, the verbal threat,
would not have been sufficient to reduce the homicide from murder to
manslaughter. The inadequacy of words alone to produce this result is well settled
in this state.[FN4] State v. King, Supra, at 37 N.J. 301, 181 A.2d 158; Clifford v.
State, 60 N.J.L. 287, 290-- 291, 37 A. 1101 (Sup.Ct.1897), aff'd 61 N.J.L.
217, 39 A. 721 (E. & A. 1897). See also Warner v. State, 56 N.J.L. 686, 691,
29 A. 505 (E. & A. 1894). The court's charge, erroneously confining manslaughter
to those killings which are unintentional, effectively deprived defendant of his right
to have the jury weigh this alternative.

FN4. The English law, formerly similar to ours and from which our
rule was derived, was changed by The Homicide Act, 1957, 5 & 6
Eliz. 2 c. 11, Part I, 3, which reads:

Where on a charge of murder there is evidence on which the jury can
find that the person charged was provoked (whether by things done
or by things said or by both together) to lose his self-control, the
question whether the provocation was enough to make a reasonable
man do as he did shall be left to be determined by the jury. In
determining that question the jury shall take into account everything
both done and said according to the effect which, in their opinion, it
would have on a reasonable man.

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