People v. Tomlins

CourtNew York Court of Appeals
Citation213 N.Y. 240,107 N.E. 496
Decision Date18 December 1914

213 N.Y. 240
107 N.E. 496


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.

[107 N.E. 497]

[213 N.Y. 241]Frank Comesky, of Nyack, for appellant.

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


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 [213 N.Y. 242]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 [213 N.Y. 243]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...

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76 cases
  • Weiand v. State
    • United States
    • United States State Supreme Court of Florida
    • March 11, 1999
    ...So.2d at 725; Hedges, 172 So.2d at 827; Pell, 97 Fla. at 665, 122 So. at 116; Danford, 53 Fla. at 13, 43 So. at 597; New York v. Tomlins, 213 N.Y. 240, 107 N.E. 496, 497-98 (1914). In Tomlins, the defendant claimed self-defense when attacked in his home by his son. 107 N.E. at 496. In rever......
  • People v. Riddle, Docket No. 118181, Calendar No. 1.
    • United States
    • Supreme Court of Michigan
    • July 31, 2002
    ...factor in determining whether the defendant acted in reasonable self-defense.19 However, as Judge Cardozo cautioned in People v. Tomlins, 213 N.Y. 240, 245, 107 N.E. 496 (1914), "[g]eneral statements to the effect that one who is attacked should withdraw, must be read in the light of the fa......
  • Gainer v. State, 20
    • United States
    • Court of Special Appeals of Maryland
    • October 11, 1978
    ...... 12 We thus adopt the reasoning of [391 A.2d 862] Mr. Justice Cardozo in People v. Tomlins,213 N.Y. 240, 107 N.E. 496, 497-98 (1914), when he made the following oft-quoted statement:. "It is not now and never has been the law ......
  • United States v. Peterson, 24299.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 29, 1973
    ......258, 259, 70 S.Ct. 586, 94 L.Ed. 815 (1950); Dennis v. United States, 339 U.S. 162, 171-172, 70 S.Ct. 519, 94 L.Ed. 734 (1950); People v. Osslo, 50 Cal.2d 75, 323 P.2d 397, 410, cert denied, 357 U.S. 907, 78 S.Ct. 1152, 2 L.Ed.2d 1157 (1958); State v. Higgs, supra note 22, 120 A.2d ...People, 18 Mich. 314, 100 Am.Dec. 173, 177-178 (1869); Young v. State, 74 Neb. 346, 104 N.W. 867, 869 (1905); People v. Tomlins, 213 N.Y. 240, 107 N.E. 496, 497 (1914); Commonwealth v. Wilkes, 414 Pa. 246, 199 A.2d 411, 412, cert. denied, 379 U.S. 939, 85 S.Ct. 344, 13 L.Ed.2d ......
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1 books & journal articles
  • The State of the Castle
    • United States
    • Criminal Justice Review No. 34-4, December 2009
    • December 1, 2009
    ...& Schmelkin, L. P. (1991). Measurement, design, and analysis: An integrated approach. Hillsdale, NJ: Lawrence Erlbaum.People v. Tomlins, 213 N.Y. 240 (1914).Pierson v. State, 12 Ala. 149 (1847).Reiss, A. J., & Roth, J. A. (Eds.). (1993). Understanding and preventing violence. Washington, DC......

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