State v. Di Maria

• Decision Date: 10 April 1916
• Citation: 97 A. 248,88 N.J.Law 416
• Parties: STATE v. DI MARIA.
• Court: New Jersey Supreme Court

97 A. 248

88 N.J.Law 416

STATE

v. DI MARIA.

Supreme Court of New Jersey.

April 10, 1916.

(Syllabus by the Court.)

Error to Court of Oyer and Terminer, Hudson County.

Nunzio Di Maria was convicted of murder in the second degree, and brings error. Affirmed.

Argued November term, 1915, before GUMMERE, C. J., and SWAYZE and BERGEN, JJ.

Alexander Simpson, of Jersey City, for plaintiff in error. Robert S. Hudspeth, Prosecutor of the Pleas, and George T. Vickers, Asst. Prosecutor, both of Jersey City, for the State.

GUMMERE, C. J. This is a writ of error bringing up the conviction of the defendant for the crime of murder in the second degree. But a single ground of reversal is relied upon, namely, that the trial court erred in its charge to the jury with regard to the law of self-defense. The instruction complained of was that if the defendant had a reasonable apprehension that his own life was in danger or that he was in danger of serious bodily injury he had a right to defend himself even to the extent of taking the life of the decedent; but that the law required that he should retreat if he could safely do so, and that if he could have done so with reasonable safety and yet did not retreat, but instead fired at the deceased with the intention of killing him, or inflicting upon him a mortal wound, the homicide was neither excusable nor justifiable. The contention on the part of the plaintiff in error is that so much of the instruction as related to the obligation to retreat was harmful error; the true rule being, as he insists, that where a man who is in a place where he has a right to be is attacked by another he need not retreat, although a way to escape injury by doing so is open to him, but is entitled to stand his ground and kill his adversary in order to prevent his adversary from killing him or doing him serious bodily harm.

The rule thus contended for has been declared and enforced in the courts of some of our sister states. In others the courts have approved the rule laid down by the trial court. The cases upon the subject are collected in the footnote to State of Minnesota v. Gardner, 2 L. R A. (N. S.) 49, an authority to which our attention has been called by counsel for the plaintiff in error.

On principle the rule enunciated by the trial court appears to us to be the sound one. The proposition is undisputed, even in those cases in which the rule contended for by the plaintiff in error is approved, that where a defendant indicted for...