People v. Tomlins

• Citation: 213 N.Y. 240,107 N.E. 496
• Parties: PEOPLE v. TOMLINS.
• Decision Date: 18 December 1914
• Court: New York Court of Appeals

213 N.Y. 240

107 N.E. 496

PEOPLE

v.TOMLINS.

Court of Appeals of New York.

Dec. 18, 1914.

Appeal from Supreme Court, Trial Term, Rockland County.

Newton Tomlins was convicted of murder in the first degree, and he appeals. Reversed and remanded.Frank Comesky, of Nyack, for appellant.

Thomas Gagan, Dist. Atty., of Haverstraw, for the People.

CARDOZO, J.

The defendant shot and killed his son, a yound man of 22. The shooting took place on August 26, 1913, in the little cottage in Stony Point where the son had been born and reared. On the trial, the father maintained that he had acted without premeditation, when blinded by passion because of blows and insults. He maintained also that he had acted justifiably, in lawful self-defense. It will not be helpful to state the details of the tragedy. It is enough to say that the verdict of murder in the first degree is sustained by ample proof. We have therefore only to inquire whether there was material error in the court's statement of the law. The jury were properly instructed that homicide in self-defense is not justifiable unless there is reasonable ground to apprehend a design on the part of the person slain to commit a felony, or to do some great personal injury to the slayer, and unless also there is reasonable ground to apprehend that the danger is imminent.

[1] These instructions were coupled, however, with a statement that it was the defendant's duty, if possible, to retreat and escape. ‘A man,’ said the court, ‘has no right to resort to force and violence against another, even where the danger is imminent, even where he has reasonable cause to believe that he is in danger, unless he has no reasonably safe means of escape and retreat. Before a man can use force and violence under the law for his own protection, the danger must be imminent; he must have reasonable cause for believing that the danger exists, and then he must be so situated, he must be in such a position, that he cannot safely retreat. That is the law, gentlemen. We may not feel always like retreating in the face of an attack; it may not seem manly to us; but it is the law that if a man can safely retreat, and thereby escape a conflict with another, he must do so, even though it may not seem digified and manly. To justify this defendant, applying the law to this case, in shooting his son, or shooting at him, or using any force against him, he must have had reasonable cause for believing, not that the boy some time in the future might do something against him, but he must have had reasonable cause for believing that the boy right then, when he came down those stairs and landed on the kitchen floor, was about to attack him. Even then he would have had no right to use a weapon, or any other force, if he could have gotten away from danger by retreating, if he could have gotten off the porch, and gone across the lot, and down the road, or around the house, or anywhere, to a place of safety, then the law says that he should have done so, and that he had no right to use the weapon against his son, unless all reasonable means of retreating were cut off, and the boy was threatening him with bodily injury, or putting his life in danger.’

We think that these instructions are erroneous as applied to the case at bar. The homicide occurred in the defendant's dwelling. It is not now and never has been the law that a man assailed in his own dwelling is bound to retreat. If assailed there, he may stand his ground and resist the attack. He is under no duty to take to the fields and the highways, a fugitive from his own home. More than 200 years ago it was siad by Lord Chief Justice Hale (1 Hale's Pleas of the Crown, 486): In case a man ‘is assailed in his own house, he need not flee as far as he can, as in other cases of se defendendo, for he hath the protection of his house to excuse him from flying, as that would be to give up the protection of his house to his adversary by flight.’ Flight is for sanctuary and shelter, and shelter, if not sanctuary, is in the home. That there is, in such a situation, no duty to retreat is, we think, the settled law in the United States as in England. It was so held by the United States Supreme Court in Beard v. United States, 158 U. S. 550, 15 Sup. Ct. 962, 39 L. Ed. 1086. In that case there was a full review of the authorities, and the rule was held to extend, not merely to one's house, but also to the surrounding grounds. That case has been followed by the same court in later decisions . Alberty v. U. S., 162 U. S. 499, 16 Sup. Ct. 864, 40 L. Ed. 1051;Rowe v. U. S., 164 U. S. 546, 557, 17 Sup. Ct. 172, 41 L. Ed. 547. The same rule is enforced in Michigan (Pond v. People, 8 Mich. 150;People v. Keuher, 93 Mich. 619, 53 N. W. 721); in New Jersey (State v. Zellers, 7 N. J. Law, 220); in Vermont (State v. Patterson, 45 Vt. 308, 12 Am. Rep. 200); in Wisconsin (State v. Martin, 30 Wis. 216, 11 Am. Rep. 567); in Alabama (Green v. State, 96 Ala. 29, 11 South. 478); in Georgia (Haynes v. State, 17 Ga. 465); in Florida (Wilson v. State, 30 Fla. 234, 11 South. 556,17 L. R. A. 654); in Ohio (State v. Peacock, 40 Ohio St. 333); in North Carolina (State v. Taylor, 82 N. C. 554); and in other jurisdictions. It is also stated as undoubted law in all the leading treatises. 1 Wharton, Crim. Law, § 633; 1 Bishop, Crim. Law, §§ 858, 859; 3 Russell on Crimes, 207, 213; 2 East Pleas of the Crown, 372; Foster's Crown Cases, c. 3, p. 273. The rule is the same whether the attack proceeds from some other occupant or from an intruder. It was so adjudged in Jones v. State, 76 Ala. 8, 14. ‘Why,’ it was there inquired, ‘should one retreat from his own house, when assailed by a partner or cotenant, any more than when assailed by a stranger who is lawfully upon the premises? Whither shall he flee, and how far, and when may he be permitted to return?’ We think that the conclusion there reached is sustained by principle, and we have not been referred to any decision to the contrary. The duty to retreat, as defined in the charge of the trial judge, is one applicable to cases of sudden affray or chance medley, to use the language of the early books. Blackstone, Comm. bk. 4, ch. 14; East Pleas of the Crown, supra; Russell on Crimes, supra; People v. Fiori, 123 App . Div. 174, 188,108 N. Y. Supp. 416.

We think that if the situation justified the defendant, as a reasonable man, in believing that he was about to be murderously attacked, he had the right to stand his ground.

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