State v. Abbott

• Decision Date: 06 November 1961
• Docket Number: No. A--8,A--8
• Citation: 36 N.J. 63,174 A.2d 881
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Frank ABBOTT, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 63

36 N.J. 63

174 A.2d 881

STATE of New Jersey, Plaintiff-Respondent, v. Frank ABBOTT, Defendant-Appellant.

No. A--8.

Supreme Court of New Jersey.

Argued Sept. 13, 1961.

Decided Nov. 6, 1961.

Charles Handler, Newark, for defendant-appellant (Joel F. Handler, Newark, on the brief).

Martin L. Greenberg, Asst. Prosecutor, Newark, for plaintiff-respondent (Brendan T. Byrne, Essex County Prosecutor, Newark, attorney).

The opinion of the court was delivered by

WEINTRAUB, C.J.

Frank Abbott was convicted of atrocious assault and battery. The Appellate Division affirmed, 64 N.J.Super. 191, 165 A.2d 537 (1960), and we granted certification, 34 N.J. 176, 167 A.2d 676 (1961).

Abbott shared a common driveway with his neighbors, Michael and Mary Scarano. The Scaranos engaged a contractor to pave their portion. Abbott obtained some asphalt from the contractor and made a doorstop to keep his garage door from swinging onto the Scaranos' property. Nicholas Scarano, who was visiting with the Scaranos, his parents, objected to Abbott's innovation. After some words between them a fist fight ensued.

Although Abbott managed to land the first punch, with which he sent Nicholas to the ground, a jury could find Nicholas was the aggregator. At this point Michael Scarano came at Abbott with a hatchet. Michael said the tool had just been returned to him by the contractor, and denied he meant to use it as a weapon. According to Abbott, Mary Scarano followed, armed with a carving knife and large fork. The actors gave varying versions of what happened, but the end result was that all of the Scaranos were hit by the hatchet. Nicholas received severe head injuries. Abbott claimed he too suffered a lacaration.

Abbott admitted he finally wrested the hatchet from Michael but denied he wielded it at all. Rather he insisted that the Scaranos were injured during a common struggle for the instrument. A jury could, however, find Abbott intentionally inflicted the blows.

Abbott was separately indicted for atrocious assault and battery upon each of the Scaranos. There was a common trial of these indictments. The jury acquitted Abbott of the charges relating to Michael and Mary, but found him guilty as to Nicholas.

I.

The principal question is whether the trial court properly instructed the jury upon the issue of self-defense. The trial court charged upon the subject of excessive force, as to which Abbott does not complain. It charged also upon the subject of retreat, and it is here that error is alleged. Although the jury could have found Abbott used excessive force, we cannot know whether the jury found him on that subject and convicted because he had failed to retreat in accordance with the trial court's instruction.

As to retreat, the trial court charged upon two hypotheses. One was that the critical events occurred upon Abbott's property. Upon that basis, the court said Abbott could stand his ground, and, of course, of this Abbott does not complain. The second hypothesis was that the alleged offense occurred upon the common driveway. Presumably on the authority of State v. Pontery, 19 N.J. 457, 475, 117 A.2d 473 (1955), the trial court held that since all the principals were equally entitled to be on the driveway, Abbott could not claim immunity from the ordinary retreat rule. Abbott does not question that thesis, but disputes the court's statement of the conditions under which an obligation to retreat would arise.

A.

We have the preliminary question whether defendant must demonstrate 'plain error' to question the instruction. As the Appellate Division noted, defendant did not record a protest to the charge as given. But he had requested a charge and did note his objection to the trial court's refusal to grant it. His request was erroneous, but nonetheless it is plain he did not acquiesce in the trial court's version. The important fact is that the trial court was alerted to the basic problem and charged in a manner different from the request made. In such circumstances, especially when the controlling principles are complex or settled, it would be unreasonable to deny a review merely because a defendant failed to project a formula which squares with our concept of the true doctrine. We would never deny relief merely because a litigant's position on appeal went beyond the point we found to be correct. We should not demand a greater capacity for prediction during the trial itself. We accordingly reach the meritorious issue.

B.

The subject of retreat usually arises in homicide matters. We will first discuss it in that context, and then consider whether the principles apply to a charge of atrocious assault and battery, and if they do, whether the trial court correctly guided the jury in this difficult area.

We should make it clear that we are discussing the doctrine of retreat and not the subject of the use of excessive force. If the force used was unnecessary in its intensity, the claim of self-defense may fall for that reason. In the discussion which follows we assume a defendant used no more force than he believed necessary to protect himself in the circumstances as they reasonably appeared to him, and consider only whether the claim of self-defense should be denied because he could have avoided the use of that force by retreating.

The question whether one who is neither the aggressor nor a party to a mutual combat must retreat has divided the authorities. Self-defense is measured against necessity. Brown v. State, 62 N.J.L. 666, 708, 42 A. 811 (E. & A.), affirmed, 175 U.S. 172, 20 S.Ct. 77, 44 L.Ed. 119 (1899); State v. Hipplewith, 33 N.J. 300, 316--318, 164 A.2d 481 (1960). From that premise one could readily say there was no necessity to kill in self-defense if the use of deadly force could have been avoided by retreat. The critics of the retreat rule do not quarrel with the theoretical validity of this conclusion, but rather condemn it as unrealistic. The law of course should not denounce conduct as criminal when it accords with the behavior of reasonable men. Upon this level, the advocates of no-retreat say the manly thing is to hold one's ground, and hence society should not demand what smacks of cowardice. Adherents of the retreat rule reply it is better that the assailed shall retreat than that the life of another be needlessly spent. They add that not only do right-thinking men agree, but further a rule so requiring may well induce others to adhere to that worthy standard of behavior. There is much dispute as to which view commands the support of ancient precedents, a question we think it would be profitless to explore.

Other jurisdictions are closely divided upon the retreat doctrine. It is said that the preponderant view rejects it. Perkins, Criminal Law 899 (1957); 1 Warren, Homicide § 157, at pp. 767--68 (perm. ed. 1938); Model Penal Code § 3.04, comment 3, at p. 24 (Tent. Draft No. 8, 1958). For additional discussions of the contending views see 1 Wharton, Criminal Law and Procedure § 235 (Anderson 1957); Annotation, 2 L.R.A. (N.S.) 49 (1906); Annotation, 18 A.L.R. 1279 (1922). Our Court of Errors and Appeals deliberately adopted the retreat rule with an awareness of the contending views, State v. Di Maria, 88 N.J.L. 416, 97 A. 248 (Sup.Ct.1916), affirmed o.b., 90 N.J.L. 341, 100 A. 1071 (E. & A. 1917), and the doctrine has since been invoked. State v. Centalonza, 18 N.J.Super. 154, 86 A.2d 780 (App.Div.1952); cf. State v. Goldberg, 12 N.J.Super. 293, 79 A.2d 702 (App.Div.1951). The Model Penal Code embraces the retreat rule while acknowledging that on numerical balance a majority of the precedents oppose it. Model Penal Code § 3.04, comment 3, at p. 24 (Tent.Draft No. 8, 1958).

We are not persuaded to depart from the principle of retreat. We think it salutary if reasonably limited. Much of the criticism goes not to its inherent validity but rather to unwarranted applications of the rule. For example, it is correctly observed that one can hardly retreat from a rifle shot at close range. But if the weapon were a knife, a lead of a city block might well be enough. Again, the rule cannot be stated baldly, with indifference to the excitement of the occasion. As Mr. Justice Holmes cryptically put it, 'Detached reflection cannot be demanded in the presence of an uplifted knife.' Brown v. United States, 256 U.S. 335, 343, 41 S.Ct. 501, 502, 65 L.Ed. 961, 963 (1921). Such considerations, however, do not demand that a man should have the absolute right to stand his ground and kill in any and all situations. Rather they call for a fair and guarded statement of appropriate principles.

In Brown, supra, the United States Supreme Court said (256 U.S., at p. 343, 41 S.Ct. at p. 502, 65 L.Ed., at p. 963):

'* * * Rationally the failure to retreat is a circumstance to be considered with all the others in order to determine whether the defendant went farther than he was justified in doing; not a categorical proof of guilt.'

The comment to § 3.04 of the Model Penal Code (at p. 24) says the passage just quoted 'seems to be a median position' and 'would apparently remit the issue to the jury, without a legal mandate on the point.' We are not sure we correctly understand these observations. We think it clear that Brown accepted the retreat doctrine, but we do not read the opinion of Mr. Justice Holmes to mean that the subject should be submitted without guidance, thus permitting each jury to decide whether the subject of retreat should be considered, if so, what the ingredients of the doctrine should be. We know of no jurisdiction which leaves to a jury the task of devising the legal principles. Rather we read Brown to hold only that the particular 'formula laid down by the (trial) court' was not 'adequate to the protection of the defendant's rights' (256 U.S., at pp. 342--343, 42 S.Ct. at p. 502, 65 L.Ed., at pp. 962--63) in the factual pattern which the defendant there asserted.

We believe the following principles...