State v. Bonofiglio

• Citation: 67 N.J.L. 239,52 A. 712
• Parties: STATE v. BONOFIGLIO.
• Decision Date: 25 June 1902
• Court: United States State Supreme Court (New Jersey)

52 A. 712

67 N.J.L. 239

STATE

v. BONOFIGLIO.

Court of Errors and Appeals of New Jersey.

June 25, 1902.

(Syllabus by the Court.)

Error to court of oyer and terminer, Atlantic county.

Giovanni Bonofiglio was convicted of murder, and brings error. Reversed.

Charles C. Black, for plaintiff in error.

J. E. P. Abbott, for the State.

GUMMERE, C. J. This writ of error brings here for review a conviction of Bonofiglio, the defendant below, of the crime of murder in the first degree, committed in the shooting to death of one Rafoele di Pasquale. The defense set up by him at the trial was that the homicide was a justifiable one, for two reasons: First, because the killing was done by him in resisting a robbery which the deceased and his brother Constantine were attempting to commit upon him; and, second, because it was done in self-defense.

The principal ground upon which the validity of the conviction is attacked is that the trial judge erred in his instruction to the jury upon the subject of the right of one person to kill another who is engaged in an attempt to commit a robbery. The judge, having first accurately defined what constituted, in law, an attempt to commit the crime of robbery, proceeded to instruct the jury, in addition, as follows: "It is a settled principle that where such a defense [i. e., that the homicide occurred in resisting an attempt to commit a robbery] is set up as an excuse for taking the life of another, the killing having been shown, the burden of establishing it is upon the accused, who must show to the satisfaction of the jury a situation and circumstances under which such right to take life could be lawfully exercised, subject to the right of the accused to have the benefit of all reasonable doubt after the whole case is in. This means that the defendant must show, among other things, in justification, that an attempt to rob him was actually made, and such an attempt as comes within the requirements of the law as I have stated it. And if it be thus established that the prisoner, at the time that he shot the deceased, honestly and without negligence on his part believed that the deceased was in the process of committing a robbery of his person, in the sense that I have defined that offense, which could only be resisted by the death of his assailant, then the defendant is excused in having killed the deceased, and should be acquitted." The trial judge, in this instruction to the jury, failed to clearly distinguish between a homicide done in resisting an attempt to rob, actually in process of execution, and one which occurs where the party killing was justified in believing that such an attempt was being made, although it is shown subsequently that the fact was otherwise. In the former case the person upon whom the attempt is being made is not required to retreat, or to use other and less radical means than the killing of his assailant to render the attempt abortive, even though such means may be resorted to with entire safety to himself, and would manifestly be successful. His right to kill is absolute. Our statute (Crimes Act, § 110; Revision 1898; P. L. p. 825) declares that "any person who shall kill another by misadventure * * * or who shall kill any person attempting to commit arson, burglary, murder, rape, robbery, or sodomy, shall be guiltless and totally acquitted and discharged." Nor does this enactment inject a new feature into the law of homicide. It is merely declaratory of the common law. Hawkins, in his treatise on the Pleas of the Crown, thus states the rule of the common law upon this subject: "The killing of a wrongdoer may be justified in many cases; as where a man kills one who assaults him in the highway to rob or murder him; or the owner of a house, or any of his servants or lodgers, etc., kills one who attempts to burn it, or to commit in it murder, robbery, or other felony; or a woman kills one who attempts to ravish her." 1 Hawk. P. C. c. 28, § 21. So, too, Hale declares that: "At common law, if a thief had assaulted a man to rob him, and he had killed the thief in the assault, it had been se defendo; but yet he had forfeited his goods, as some have thought (11 Coke, 82b), though other books be to the contrary. But now by the statute of 24 Hen. VIII, c. 5, "If any person attempts any robbery of any person in or near any common highway, cartway, horseway or footway, or in their mansion house, or do attempt to break any mansion house in the night time, and shall happen to be slain by any person or persons, &c. (though a lodger or servant), they shall upon their trial be acquitted and discharged, in like manner as if he had been acquitted of the death of such person.'" Hale, P. C. p. 487. The necessary effect of the Instruction complained of, upon the jury, was to leave their minds under an erroneous impression that, in order to De entitled to an acquittal, the burden was upon the prisoner not only to establish that an attempt was being made to rob him, but that he was justified in believing that such attempt could only be thwarted by the killing of his assailant. That the instruction was inaccurate has been pointed out. That the error was injurious to the defendant is apparent. For this reason the conviction must be set aside, and a new trial directed.

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