McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by Jayne, J.A.D.
The participants in the scrimmage which the present appeal brings to our attention will some day look back upon it more in regret than in anger. A resort to physical violence is a particularly shabby expedient in the solution of a family quarrel. Here we are requested to review judicially a judgment emanating from the irascibility of a father 73 years of age and his two adult sons.
Sufficient of the factual story must be related to display the subject matter of our consideration. Michael Goldberg is the father of Solomon and Jerome Goldberg. They are associated as partners in business.
The father subscribed to a complaint in the Court of the First Criminal Judicial District of the County of Passaic charging that "on the 10th day of June A.D. one thousand nine hundred and fifty at the City of Paterson, in the County aforesaid and within the jurisdiction of this court, one Solomon Goldberg did wilfully and unlawfully commit an assault and battery on the person of this complainant with force and arms, to wit: did kick complainant in the groin and did hold him by his hands; one Jerome Goldberg did choke him and did push him up against the wall; and did otherwise ill treat this complainant, contrary to the form of the statute in such case made and provided, to wit: Title 2:103-1 Revised Statutes New Jersey, 1937. Therefore, this complainant prays that the said Solomon Goldberg (sic) may be apprehended and held to answer said complaint, and dealt with as law and justice may require."
In pursuance of the complaint both Solomon and Jerome seem to have been arraigned, and upon hearing the testimony, Solomon was acquitted. Jerome was convicted of the alleged assault and battery, and the sentence thereon indefinitely suspended. Jerome, however, challenges the factual and legal propriety of his conviction.
Unfortunately the testimony at the hearing was not recorded stenographically, and we are accordingly obliged to harvest our information concerning it from a summarized statement of the case settled by the trial court. Rules 1:2-23, 4:2-6.
The genesis of the embroilment seems to have been the circumstance that the father upon his return from Florida ascertained that there was a balance of $12,000 in the partnership bank account, from which he unconventionally withdrew for his own use the sum of $4,000 without the knowledge of his sons. Upon the presentation of the outstanding checks theretofore drawn upon the account, the sons learned of their father's impropriety with some degree of embarrassment and discomposure.
The father thereafter visited the place of business of the partnership, caressed his son, Solomon, but Jerome forthwith calmly invited his father and brother to accompany him to the basement. Both accepted the invitation. Upon their arrival there Jerome at once proceeded to chide, if not berate, his father for his clandestine act of confiscating a portion of the bank account Wrath was nourished by the interchange of ill-tempered epithets. "Too many mischiefs that vex the world arise from words."
The father testified at the trial that "Jerome grabbed me by the throat and choked me and Sol held my hand and put his knee in my groin. I kicked them and screamed."
Both Solomon and Jerome imparted in their testimony a significantly dissimilar portrayal of the altercation. We reproduce the following pertinent excerpts from the statement of the case settled by the trial court:
"The defendant, Solomon Goldberg, in defense of the complaint, testified under oath that he was called to the cellar by his brother, Jerome; that a discussion ensued between his brother Jerome and his father; that his father picked up a wooden reel to strike Jerome; that Jerome grappled with his father and that he held his father by the wrists while Jerome had his around the shoulders and neck, from the rear. He further stated that his father wasn't slapped nor punched and that he, Solomon, stepped in to separate his father and brother during the quarrel to prevent injury to either of them.
The defendant, Jerome Goldberg, testified under oath that when his father came to the place of business on June 10, 1950, he told his father that he had something to discuss with him and requested him to come down to the cellar and also requested his brother to come, as he desired to discuss with his father the withdrawal by his father of the $4,000 out of the partnership account. He likewise requested Solomon to join with them. When he reached the cellar, he inquired of his
father why he had withdrawn the $4,000 from the bank, cleaning out the account to the extent that the outstanding checks could not be met. Thereupon his father, the complainant, swore profanely at him and picked up a wooden reel and endeavored to strike him; that thereupon he, Jerome, grasped his father's arms pinning them to his father's body and at the same time the defendant, Solomon, his brother, intervened to separate them. He further testified that he didn't punch, slap, nor strike his father and that the only reason he requested him to come to the cellar was to discuss the matter of the withdrawal of funds and to have privacy. The wooden reel was offered in evidence and it consisted of a light piece of wooden fixture used in their business and which weighed, perhaps, several ounces. It was also testified that the conversation was loud. The defendant, Jerome, further stated that when his father sought to obtain the wooden reel, it required that he go some distance from the stairway which led upstairs and that he, Jerome, could have walked upstairs before the father's return with the wooden reel. The defendant, Jerome, did not avail himself of this avenue of withdrawal."
The reel to which reference is made is a wooden rectangular frame weighing approximately 11 ounces, around which cloth, fabrics, and textiles are wound, forming a bolt.
As an incidental prelude we bring to view the ancestral enactment of the General Assembly of the Province of New Jersey on December 9, 1675, which ordained that:
"X. Item. If any child or children above sixteen years of age, and of sufficient understanding, shall smite or curse their natural father or mother, except provoked thereunto, and forced for their safe preservation from death or maiming, upon the complaint or proof of the said father or mother, or either of them (and not otherwise) they shall be put to death."
Leaming & Spicer, Grants and Concessions of N.J. (2 d ed. 1881), p. 106.
There are certain features of the case in the exposure in which it is presented to us which particularly engross our consideration.
Unless the substantially concordant testimony of Solomon and Jerome was for some undisclosed reason essentially depreciated in its evidential value or rejected as incredible, it is more than difficult to perceive in the record the requisite degree of proof to sustain Jerome's conviction. A reconciliation
and adaptation of the evidence are rendered the more perplexing in view of the acquittal of Solomon and the conviction of Jerome.
Counsel for the appellant points to the most plausible explanation of the dissimilarity of the judgments. It is revealed by the following quotation extracted from the court's statement:
"The defendant, Jerome, further stated that when his father sought to obtain the wooden reel, it required that he go some distance from the stairway which led upstairs and that he, Jerome, could have walked upstairs before the father's return with the wooden reel. The defendant, Jerome, did not avail himself of this avenue of withdrawal."
The right of self-defense and the limitational obligation to accept an available opportunity to retreat are conspicuous examples of the development of our law. An examination of the history of the English law of self-defense discloses that from the beginning of the jurisdiction of the king's courts over crime until the reign of Edward I, homicide could be justified only in the execution of the law. In all other cases, whether of misadventure or of necessary self-defense, the defendant had no legal justification. Chancery sought to afford relief in such cases, but this was forbidden by the statute of Gloucester which provided that a verdict of guilty should be found before the justices in eyre or gaol-delivery, and then "by the report of the justices to the king, the king shall take him to his grace, if it please ...