State v. Brown, A--25

• Decision Date: 06 December 1965
• Docket Number: No. A--25,A--25
• Citation: 215 A.2d 9,46 N.J. 96
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Joseph BROWN, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 96

46 N.J. 96

215 A.2d 9

STATE of New Jersey, Plaintiff-Respondent, v. Joseph BROWN, Defendant-Appellant.

No. A--25.

Supreme Court of New Jersey.

Argued Oct. 13, 1965.

Decided Dec. 6, 1965.

John L. Moore, Newark, for appellant (John C. Howell, Newark, of counsel and on the brief).

Philip R. Glucksman, Asst. Pros. of Essex County, for respondent (Brendan T. Byrne, Pros. of Essex County, attorney).

The opinion of the Court was delivered by

FRANCIS, J.

Defendant Joseph Brown was convicted of murder in the second degree for the fatal stabbing of one James Fields in the City of Newark on December 14, 1963. He was sentenced to 18 to 25 years in New Jersey State Prison. Thereafter he appealed directly to this Court claiming that prejudicial error had occurred at his trial. R.R. 1:2--1(c).

The circumstances surrounding the homicide are not difficult to relate. They appear largely in defendant's police statement and his trial testimony.

According to Brown, he arose on December 14, 1963 at about 5:00 A.M., after four or five hours sleep. His intention was to go to work. While walking to his place of employment he stopped to talk with a friend and drank some wine with him. James Fields, another friend, came along with a companion and they joined in the conversation. Fields and his companion had two pints of wine which the four then consumed. At about 8:00 A.M. Fields invited Brown to come to his room and do some further drinking. It was raining at the time and Brown did not feel like working, so he accepted the invitation. The two men stopped at a liquor store, purchased a bottle of sherry wine and went to Fields' room. The room was a small one, about 12 by 16 feet, and contained a double bed, a dresser and two chairs. The only means of ingress and egress was a single door which opened into the hallway. The next room off the hallway was a kitchen used in common by occupants of the building.

Fields and Brown drank together in the room for an unstated period of time. On two occasions while they were so engaged Fields left the room and went to the kitchen. On his return from the second trip, he suddenly punched Brown in the head in the area of his right eye and temple. Brown was sitting in a chair at the time and there was no explanation for the attack. He asked Fields if he was 'crazy,' whereupon Fields said he was 'going to beat hell out of' him. Then he punched Brown again driving him backward into the dresser. At this time Brown, who said Fields was coming at him 'like he was crazy,' saw a knife, apparently a kitchen knife, on the dresser. Its size was not fixed definitely, although he said the blade was three inches long or better. As Fields attempted or struck a third blow with his fist, Brown picked up the knife and stabbed him in the abdomen with it. According to Brown, Fields then moved aside and he walked out of the room. On reaching the street he threw the knife into a garbage pail in front of the house. It was never located.

About five hours after the stabbing, two police officers who had been summoned to the area found Fields sitting on the sidewalk and leaning against the building. They thought he was intoxicated, but he told them he had been stabbed. They took him to St. Barnabas Hospital where he underwent immediate surgery. This was unsuccessful and he died three days later. The fatal stab wound in the abdomen was five and one-half inches deep. The autopsy revealed another superficial cutting wound on the lower back. Defendant's version of the fracas provided no explanation for the back wound.

After leaving Fields' place Brown went to his niece's home where he stayed that night. Thereafter, he said, he lived and worked around Newark for the next two months. On February 18, 1964 he turned himself in to the police. He told the officer at the police headquarters that he wanted to give himself up. Among other things, he said he had been drinking with Fields and had 'stuck him.'

Shortly thereafter defendant gave the police a written statement the substance of which is detailed above. The statement was admitted in evidence without objection. No question as to its voluntariness was raised either at the trial or on this appeal. In fact, in his brief defendant 'freely concedes that the statement was made voluntarily * * *.' The State also produced a friend of defendant's with whom he had discussed the fight. According to this person Brown told him, 'We were scuffling and we went down and he was on top of me and I stuck him to get him off of me.'

The trial judge charged the jury at length on the degrees of murder and on manslaughter, as well as defendant's claim of self-defense. The appeal concerns itself primarily with criticism of the charge, of the weight of the evidence as to second degree murder, and the sentence imposed upon Brown following his conviction of second degree murder.

I

In attacking the charge, defendant says it suggested that a person 'might kill in self-defense only if an actual necessity therefore existed.' Certain excerpts from the charge are quoted in support of the claim. The quotations, considered in isolation, might give pause to a reviewing court. But instructions to a jury cannot be dealt with in that way. They must be examined in their entire context and a decision reached whether in the light of all that was said on the particular subject the charge was erroneous or misleading or prejudicially ambiguous. State v. Hipplewith, 33 N.J. 300, 317, 164 A.2d 481 (1960).

In portions of the charge other than those referred to by defendant, the court instructed the jury that 'self-defense is the right to defend oneself against any force or seriously threatened force actually pending or Reasonably apprehended by the defendant.' (Emphasis supplied.) He also discussed the law relating to the duty of an attacked person to retreat and the nature of the force which such a person could use for self-protection. He told the jury that only such resistence could be used as was reasonable under the circumstances, 'and, of course, what appeared to have been necessary for self-protection,' and that 'only such force may be used and no more than would be reasonably necessary for self-defense.' He instructed further that in determining whether necessity existed for defendant to use force in self-defense, or whether the force used by defendant was the product of a reasonable apprehension of the need therefor, or whether defendant should have retreated (as he had described that obligation), they should 'consider the situation of the accused at the time and under the circumstances then and there confronting him.'

This Court in State v. Hipplewith, supra, and State v. Abbott, 36 N.J. 63, 174 A.2d 881 (1961), spelled out succinctly for our State the guiding principles to be used in instructing the jury on self-defense. In Hipplewith, Justice Proctor said for a unanimous Court:

'A person may kill in self-defense when the act of killing is necessary or reasonably appears to be necessary in order to preserve his own life or to protect himself from serious bodily harm. * * * The right of self-defense does not depend upon a showing of so-called 'actual' necessity. It is sufficient that defendant show he reasonably believed it necessary to kill. * * * Whether the act of killing was necessary or reasonably appeared to be necessary is to be determined by the jury, not the defendant, in light of the circumstances existing at the time of the homicide.' 33 N.J., at pp. 316--317, 164 A.2d at p. 490.

And see State v. Abbott, supra (36 N.J., at pp. 68--72, 174 A.2d 881). Whatever may be the view elsewhere, the two cases cited have settled the law for New Jersey. See Model Penal Code, § 3.04(2)(b) (Proposed Official Draft, 1962); Perkins, Criminal Law (1957), pp. 884--886.

Study of the trial court's charge as a whole against a backdrop of Hipplewith and Abbott warrants the conclusion that the jury was not erroneously advised as to the tests to be applied in passing upon the claim of self-defense.

Defendant argues also that the trial judge should have charged the jury in accordance with his request and in considering the claim of self-defense apprehension of grave bodily harm by defendant would invoke the defense 'just as effectively as apprehension of danger to life.' As we have noted above, the judge told the jury defendant had the right to defend himself 'against any force or seriously threatened force'; also that a defendant could defend himself when 'he, in good faith, believed, even though mistakenly, that he was in danger of bodily harm to himself.' These statements, in the light of the charge in its entirety, presented the issue of defendant's right to use force in his defense with sufficient adherence to the applicable rule as to be free from prejudicial error. It is a commonplace doctrine of appellate review that a trial court need not employ the precise language of a request to charge in explaining the law of the case to the jury. State v. Dunphy, 24 N.J. 10, 17, 130 A.2d 606 (1957).

II

Defendant alleges the trial court committed prejudicial error in the charge in referring to his statement to the police as a 'confession.' In connection with defendant's statement, the court said:

'With respect to the Written confession of the defendant in this particular case, you will recall it was marked in evidence, I think it was S--4, but you will have an opportunity to read it. This Statement is in the nature of a confession * * *.' (Emphasis added.)

Then the jury was told if found by them to have been made voluntarily, the 'statement' could be considered in the same manner as any other evidence in the case. And the court said 'In doing so, you must consider the credibility and the facts involved in the Statement or confession, as it is sometimes called.' (Emphasis added.)

It appears that in the course of the charge the writing was spoken of once as the 'written confession,' once as 'this...