State v. Washington

• Decision Date: 29 October 1970
• Citation: 270 A.2d 282,57 N.J. 160
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Ronald WASHINGTON, Jack Cogman, Belton Williams and William Turner, Defendants-Respondents.
• Court: New Jersey Supreme Court

Page 160

57 N.J. 160

270 A.2d 282

STATE of New Jersey, Plaintiff-Appellant, v. Ronald WASHINGTON, Jack Cogman, Belton Williams and William Turner, Defendants-Respondents.

Supreme Court of New Jersey.

Argued Sept. 15, 1970.

Decided Oct. 29, 1970.

M. Richard Altman, Asst. Prosecutor, for appellant (Joseph P. Lordi, Essex County Prosecutor, attorney).

Thomas P. Kelly, Orange, Designated Counsel, for respondents (Hazel R. Rollins on the brief, Stanley C. Van Ness, Public Defender, attorney).

PER CURIAM.

Defendants Washington, Cogman, Williams and Turner were indicted for allegedly violating N.J.S.A 2A:90--4 in that they committed an assault and battery upon certain police officers, of the City of East Orange, who were in uniform and engaged in the performance of their duties at the time. At the outset of the jury trial, when defendants indicated an intention to rely in part upon self-defense, the judge made plain his view that such a defense was not applicable. Moreover, after all of the evidence had been presented, he refused to submit the issue of self-defense to the jury for consideration as a possible basis for acquittal. The jury found defendants guilty as charged and they were sentenced to imprisonment in the county penitentiary. On appeal, the Appellate Division in an unreported opinion held that, on the facts, the issue of self-defense was properly in the case and with appropriate instructions should have been submitted to the jury for determination. It, therefore, reversed the convictions and ordered a new trial. This Court granted the petition of the State for certification. State v. Washington, 55 N.J. 310, 261 A.2d 354 (1970).

The trial court here, as in State v. Mulvihill, 57 N.J. 151, 270 A.2d 277 (1970) also decided today, felt that the claim of self-defense was barred under the rule laid down in State v. Koonce, 89 N.J.Super. 169, 214 A.2d 428 (App.Div.1965). In Koonce, the Appellate Division declared it to be the law of this State that when a police officer undertakes to arrest a person who knows or reasonably should know that the officer is acting in the course of his duty, such person must submit peaceably whether the arrest is legal or illegal. He may not use force in either case to resist the arrest. 89 N.J.Super. at 184, 214 A.2d 428. However, as we said in Mulvihill, the duty of the citizen to submit quietly is not controlling whenever the officer undertakes to use unnecessary or excessive force in effectuating the arrest. In such case, the arrestee is justified in employing reasonable force to protect himself and if in so doing the officer is injured no criminal offense has been committed. State v. Mulvihill, Supra, (57 N.J. p. 151, 270 A.2d 277). In this context it is not necessary that the officer's unnecessary or excessive force be or appear to be lethal in nature. It is sufficient to justify reasonable defensive measures by the arrestee if it qualifies as unnecessary or excessive force under the existing circumstances. We do not take the quotation from the American Law Institute's comment on section 3.04 of the Model Penal Code, appearing in Koonce, 89 N.J.Super. at 182, 214 A.2d 428, as a holding that the right of self-defense exists only if the officer's force is or appears to be lethal.

We noted also in Mulvihill that when the citizen is faced with unnecessary or...