Conford, Freund and Kilkenny. The opinion of the court was delivered by Freund, J.A.D.
[64 NJSuper Page 194] Defendant was charged in three separate indictments with the crime of atrocious assault and battery, N.J.S. 2 A:90-1, allegedly committed upon Nicholas
Scarano, Michael Scarano and Mary Scarano. He appeals a jury determination of guilty in the Essex County Court on indictment No. 1658, involving the alleged assault upon Nicholas Scarano.
The incident upon which the indictments were based occurred on July 15, 1957. Defendant Abbott resided at 19 Claremont Avenue, in Montclair. His next-door neighbors, with whom he shared a common driveway, were the Scaranos -- Michael and Mary. On the day in question, Philip Pignatello, a relative of the Scaranos, was engaged in paving the Scaranos' half of the joint driveway. In the early afternoon Abbott approached Pignatello and asked if he could have some left-over asphalt. He explained to Michael Scarano that he wanted to construct a stopper between the two garages in order to prevent his door from swinging onto the Scarano property. Defendant was given the asphalt and commenced the erection of a stopper, in the form of a curb, about four inches high and eight to ten feet long.
While Abbott was in the process of laying out the asphalt, Nicholas Scarano, 36-year-old son of Michael and Mary, arrived on the scene. Nicholas objected to the erection of the doorstop, and an argument ensued between him and defendant. The testimony is conflicting as to who hit the other first, but the heated words soon developed into blows and Nicholas was knocked to the ground.
The ensuing scuffle took place either in the joint driveway or on Abbott's property; it is clear that the scene of battle gradually progressed in the direction of defendant's garage. While Nicholas was still on the ground, his father approached Abbott, holding an ax which had been used by Pignatello earlier in the day and which the elder Scarano was returning to his basement when the fight began. Michael Scarano apparently was either attempting to strike defendant with the handle of the ax or trying to protect his son from the defendant. The State's witnesses testified that at this point Abbott pulled the ax from Michael's hand and chopped at
Nicholas, who had risen to his feet, hitting him on the head and knocking him down again. Having disposed of the son, he proceeded to flail the father, striking the latter's head four times with the ax.
Mary Scarano had previously rushed out of the house and she joined in the effort to wrest the ax from defendant. She was hit on the head and the side of the face.
Defendant testified that Nicholas had started the brawl, and denied that he, Abbott, had intentionally struck any of the Scaranos with the ax. He also said that he fought with Mrs. Scarano only because she attacked him with a kitchen knife. He said that at one point he and the Scaranos were all scuffling for possession of the ax. His primary contention was that he acted entirely in self-defense; the implication was that the injuries of the Scaranos were accidental.
The major error assigned on this appeal is in the trial court's instruction on defendant's duty to retreat. With respect to the elements of self-defense, the trial judge instructed the jury as follows:
"If you find the charges involved or either of them happened on the joint or common driveway and that the defendant had an available opportunity to retreat and you also find that he was or appeared to be threatened by assault and battery with imminent danger of life or serious bodily harm, again there is no duty to retreat. On the other hand, under the latter circumstances, if you find that he did not appear to be threatened by assault and battery with imminent danger of life or great bodily harm, he had a duty to retreat and if he failed to retreat the defense of self-defense would not avail him and would not constitute a defense to these charges * * *." (Emphasis added)
Preliminarily, we take note of defendant's failure to raise timely objection to the alleged erroneous portion of the trial judge's charge. Defendant merely objected to the refusal of the judge to charge certain of his requests, one of which included language from State v. Goldberg , 12 N.J. Super. 293 (App. Div. 1951) -- but not language submitted in another request ...