On error to the Burlington County Quarter Sessions Court.
For the plaintiff in error, Robert Peacock.
For the state, Howard Eastwood, prosecutor of the pleas.
Before Gummere, Chief Justice, and Justice Parker and Case.
The opinion of the court was delivered by
PARKER, J. The plaintiff in error was convicted on an indictment charging in the first count assault with intent to kill, and in the second simple assault and battery. The defense was self-defense. The complaining witness George Hong had a small laundry at Burlington and claimed that the defendant came in, and after some preliminaries not now material, seized a flatiron, beat him over the head with it until he fell to the floor, and ran out. Defendant's version of the occurrence was that he visited Hong's place to collect some money due him, that Hong had told him it had been paid to one Wong but this was untrue and that he insisted on being paid, Hong told him to get out; he refused to go; Hong grabbed him by the neck, and in self-defense defendant seized an iron, apparently the most convenient weapon available, and hit Hong with it.
Defendant's counsel then asked his client the following questions, which were excluded by the court:
"Q. Now, on the day in question, when you had this argument with George on Friday, why did you hit him with the iron? Q. At the time you struck George, were you afraid of him? Q. At the time you struck George, did you believe you were in fear [sic] of bodily injury at the hands of George? Q. At the time George had you by the throat and you struck him with the iron, what did you think he was about to do to you?"
Counsel claimed "the right to ask this witness what was in his mind at the time he hit him. The jury is entitled to know what was in his mind." The court held counsel "could show the circumstances of what he did at the time" but shut out any testimony of defendant respecting his mental attitude.
This, we think, was error. The court charged the law of self-defense, perhaps too favorably to the defendant, saying for example, "if the defendant thought the complaining witness was about to do him bodily harm he had the right to protect himself to the extent of taking life in order to save himself from serious bodily harm," and that "it is a question for you to decide what was in the mind of the defendant at the time this alleged assault took place," &c. Of course this states the rule of self-defense too liberally because of omitting the element of reasonability in the fear of a party attacked. The rule is shortly stated in State v. Jayson, 94 N.J.L. 467 (at p. 471), as follows: "An accused is justified in using force to defend his person only when force is necessary, or reasonably appears to be necessary, to accomplish that end." So here it was for the defense to show, on the second alternative, both that the force used appeared to him to be necessary, or to put it in another way, that he deemed it necessary; and that this judgment or opinion of his was under the circumstances a reasonable one. So in a homicide case the rule as laid down in State v. Bonofiglio, 67 Id. 239 (at p. 245), is that "a man may protect himself even to the extent of taking the life of his adversary, when that act is or reasonably appears to be, necessary in order to preserve
his own life or to protect himself from serious ...