Conford, Freund and Labrecque. The opinion of the court was delivered by Conford, S.j.a.d.
[69 NJSuper Page 481] This is an appeal from a conviction of the defendant for atrocious assault and battery with a dangerous weapon, contrary to N.J.S. 2A:90-1 and 2A:151-5. The defendant shot and seriously wounded Louis Walker and Roland Houle, in order, as he claims, to prevent their murdering William J. Edwards. All four were employees of Camp Harmony in Somerset County. An affray had begun among the others, who had been drinking, awakening the defendant. From his testimony, to be described later, a jury could have properly found that defendant in good faith reasonably deemed it necessary to physically disable Walker and Houle in order to save Edwards' life. But from proofs adduced as to what had transpired before defendant's attention was drawn to the melee, it might have
been concluded by a jury that it was not in fact necessary to shoot Walker and Houle to prevent death or serious injury to Edwards, and that Edwards himself would not in the circumstances have been justified in using such measures as a matter of self-defense.
The principal question for resolution on this appeal is the correctness of the trial court's charge to the jury that the defendant's justification in defending Edwards in the manner he did depended upon whether Edwards himself would have been legally justified, on the basis of the circumstances known to Edwards, in using the same force and violence on Walker and Houle. It is and was the defendant's position at the trial that he had the right to act upon his own reasonable judgment on the basis of the appearances as manifested to him, without imputation to him of Edwards' peculiar knowledge of the circumstances. There is no completely satisfactory appellate decision on the point in this State.
On a Sunday evening, July 31, 1960, at about 8:00 P.M., Walker, Houle and Edwards, together with Campbell and Butler, two other camp employees, were gathered in the camp's nursery to watch television and test each other's strength and skill at "Indian Wrestling," fortified by ten quarts of beer from a nearby tavern. Defendant arrived soon afterward to sell his watch to Butler, and remained to watch television and to share some of the beer. He accompanied Edwards, Houle and Walker to the Warrenville Tavern at 9:30 P.M., to obtain ten more quarts of beer, and had a drink of whiskey there. Upon their return to the nursery, defendant had another glass of beer and left to go to sleep in his cabin at about 11:00 or 11:30 P.M.
The others finished the beer and went to the tavern to continue their drinking. At about 1:00 A.M. they returned to the camp -- all but Butler in a high state of alcoholic exuberance. Campbell had to be "assisted" to his room, which was in the same cottage as, and diagonally across from, the defendant's room. In Campbell's room a fight broke out
between Houle and Walker, on the one side, and Edwards, on the other. The casus belli is not revealed by the record. Edwards threw a wild punch through a glass pane in the door, severely lacerating his arm. The mediation efforts of the sober Butler were to no avail, the fighters spilled violently through the door, and the battle continued outside the cabin. Butler discreetly remained inside.
The defendant testified that he was awakened by the breaking glass, banging noises on the walls of the cottage, and screams, such as, "Please help, help, somebody is killing me." He arose, took his .22 rifle, inserted a loaded ramrod (magazine) into it, and went outside. According to his testimony, he shone his flashlight on the combatants, about 6-8 feet away, and witnessed the following:
"Well, the victim, Bill Edwards, was lying on the ground and Louis Walker was kneeling next to the victim choking him and Roland Houle was kicking him on the side of the head, and while he was choking him he couldn't, you know, he was straining to get his hands away from his throat. So I -- the light was on when I seen it, I had the flashlight, and I told these men to stop, I yelled at them, I said, 'Leave that fellow alone, you're hurting him,' and Louis Walker just kept going and Roland stopped kicking him and went to the side of Louis Walker and knelt down beside Bill Edwards and he took something from his pocket, I couldn't tell for sure, and Bill Edwards started getting all full of blood, splattered all over his chest, arms and his throat. And when I seen this, Edwards didn't move any more after that, I fired the two shots over their heads and I demanded for them to stop and they just kept going. So I fired at the both of them after the second two shots."
Four shots were fired. Three hit Walker, and one Houle. They sustained serious injuries, but both recovered.
Houle testified he remembered no part of the actual shooting episode. Walker admitted in his testimony that the three combatants wound up outside the cabin, Edwards on the ground and Walker astride him, the former shouting for help. But he said that just before the actual shooting Edwards had struck Houle and Walker had stepped forward to separate them. He then heard shots, and cried, "I've been shot." At the same moment, Houle fell and Edwards
began kicking him, whereupon Walker, though wounded in the skull, arm and chest, began butting Edwards' eye with his head. Then he collapsed.
Edwards testified that several sutures were required to close the tear in his lacerated arm. That injury followed a "terrific right" by Walker to Edwards' eye. After they were outside the door, Edwards testified, he "was fighting on the ground and Walker was sitting on top of [his] chest with one hand around [his] throat and [Edwards] was swinging at the same time * * *." Then came the announcement by Walker, "I'm shot," and "we stopped fighting at that time." Edwards got up and tried to hail a passing car. On cross-examination, Edwards said that although Walker was choking him, he nevertheless "hollered" at the same time. He was "very well ascared." But on redirect examination, he responded affirmatively to the question "You weren't afraid you were going to really get killed, you were going to get beat up, right?". Yet he had given a statement of contrary implication to the police.
The portion of the charge of the trial court presently material, and to which defendant adequately specified his objections, was as follows:
"The defendant, while admitting the shooting, urges that his conduct was justified on the ground of defense of one William Edwards who was being assaulted. In proper circumstances, ladies and gentlemen of the jury, one may, without committing actionable assault and battery, intervene for the defense of a third person, using such means as he could employ to protect himself from a similar aggression. The doctrines, principles and rules of the right of self defense apply where a person resists an attack made in his presence on a relative, member of his family or social friends. But before one person has the right to use force in the defense or aid of another, the circumstances must be such that the person on whom the assault is being made has the right of self defense and, therefore, the right to use the same force and intervention must be necessary for the protection of the third person.
I should like to treat further with that. A person may justifiably intervene in the defense of another who is in imminent danger of serious bodily injury or death. But he may do so only when the person he is aiding actually has the right himself in his own self defense to do the same act.
To exert identical force against his assailant, as the intervenor in this case, in effect the defendant Chiarello is relying on William Edwards' right of self defense. And the issue presented to you is, Did William Edwards have the right, assuming he had access to the weapon or tool, to use a deadly weapon against these two men? In answering this question you must view the situation as William Edwards knew it to be. In other words, you must treat the defendant as William Edwards' alter ego and this includes imputing to the defendant all of William Edwards' knowledge of the situation, what the defendant saw and how he interpreted what he saw. Reasonable as that interpretation may be is not important. It is the actual situation which existed between William Edwards and the others upon whom the defendant's right to intervene with a deadly weapon depend.
I should say to you too, ladies and gentlemen of the jury, that the law values human life very highly and it does not countenance mistakes by one who volunteers to intervene in such a way that he intentionally endangers life. The volunteer intervenes at his peril, and if he has misinterpreted the situation, no matter what the basis of his interpretation may be, he is criminally responsible."
The court declined to charge the following requests to charge submitted by the defendant, as he felt that he "had included the basics of such requests" within the charge as given:
"(1) If just prior to the time Houle and Walker were shot by the defendant, the defendant John Chiarello had reasonable grounds to believe and did believe that Houle and Walker were then and there about to inflict either loss of life or great bodily harm upon Edwards, the defendant Chiarello had a right to interfere by all such reasonable means as appeared necessary or apparently necessary in the circumstances including means capable of producing death or serious bodily harm. Morrison v. Commonwealth-Ky. , 74 S.W. 277, 67 L.R.A. 529, 534 (1903); see 1 Rest. Torts Sec. 143 (2), 1 Harper & James on Torts 287 (1956).
(2) If Chiarello had a reasonable ground to believe that Houle and Walker intended to inflict either death or serious bodily harm on Edwards, he was justified in taking steps which were necessary or apparently necessary to stop Houle and Walker, and this is so even though Chiarello may have been mistaken as to their actual intent.
Annot. 67 L.R.A. 531; cf. State v. Bonfiglio , 67 N.J.L. 239 (E. & A. 1901); State v. Hipplewith , 33 N.J. 300, 316 (1960).
(3) One may justifiably intervene in the defense of any person who is in actual or apparent imminent danger of serious bodily injury or death, and, he may use such force as he has reason to believe and does believe necessary in all of the circumstances. 4 Am. Jur. 155, 152."
The clearly defined issue disclosed by the differences between the charge as given, and those requested by defendant, has split the American jurisdictions which have ruled on the matter substantially equally. The "alter ego" rule espoused here by the trial court finds expression or application in these cases. McHargue v. Commonwealth , 231 Ky. 82, 21 S.W. 2 d 115, 119 (Ct. App. 1929); Commonwealth v. Hounchell , 280 Ky. 217, 132 S.W. 2 d 921 (Ct. App. 1939); Murphy v. State , 188 Tenn. 583, 221 S.W. 2 d 812 (Sup. Ct. 1949); People v. Will , 79 Cal. App. 101, 248 P. 1078, 1084 (Ct. App. 1926); Moore v. State , 25 Okl. Cr. 151, 219 P. 175, 178 (Crim. App. 1923); State v. Young , 52 Or. 227, 96 P. 1067, 18 L.R.A., N.S. , 688 (Sup. Ct. 1908); Humphries v. State , 28 Ala. App. 159, 181 So. 309 (Ct. App. 1938); Turner v. State , 128 Ark. 565, 195 S.W. 5 (Sup. Ct. 1917); Pacheco v. State , 96 Colo. 401, 43 P. 2 d 165 (Sup. Ct. 1935); State v. Francis , 152 S.C. 17, 149 S.E. 348, 70 A.L.R. 1133 (Sup. Ct. 1929). It was applied by the Essex County Court in State v. Ronnie , 41 N.J. Super. 339 (1956), on the authority of a statement in American Jurisprudence. The rule has been rationalized on the basis that to acquit a defendant who at the time of the occurrence had a reasonable belief that the seeming victim was without fault might, in instances, result in the killing of an innocent man without any criminal liability of the killer. Moore v. State, supra (219 P. , at p. 178). But it has been observed, in rebuttal, that innocent men are not infrequently killed under circumstances where the law properly holds the person who caused the homicide free from criminal intent, and therefore guiltless of crime. Note: 39 Ky. L.J. 460, 462 (1951).
Holding or declaring that the rescuer is not chargeable with the knowledge of the apparent victim, but is justified if it reasonably appears to him, on the basis of what he observes and knows, that the force used on the assailant is necessary to prevent death or serious bodily injury, are: State v. Mounkes , 88 Kan. 193, 127 P. 637, 639 (Sup. Ct. 1912); Parnell v. State , 50 Tex. Cr. R. 419, 98 S.W. 269 (Crim. App. 1906); Guffee v. State , 8 Tex. App. 187, 206 (Ct. App. 1880); Brannin v. State , 221 Ind. 123, 46 N.E. 2 d 599, 600 (Sup. Ct. 1943); State v. Menilla , 177 Iowa 283, 158 N.W. 645, 647 (Sup. Ct. 1916); People v. Dugas , 310 Ill. 291, 141 N.E. 769 (Sup. Ct. 1923); People v. Maine , 166 N.Y. 50, 59 N.E. 696 (Ct. App. 1901); People v. Young , 12 A.D. 2 d 262, 210 N.Y.S. 2 d 358 (App. Div. 1961); Willingham v. State , 72 Ga. App. 372, 33 S.E. 2 d 721 (Ct. App. 1945); State v. Harper , 149 Mo. 514, 51 S.W. 89 (Sup. Ct. 1899); cf. State v. Anderson , 222 N.C. 148, 22 S.E. 2 d 271 (Sup. Ct. 1942); Reg. v. Rose , 15 Cox's Cr. L.C. 540 (1884); Hathaway v. State , 32 Fla. 56, 13 So. 592 (Sup. Ct. 1893).
The American Law Institute rejects the "alter ego" rule as repugnant to the fundamental principle of Anglo-American criminal jurisprudence that the defendant must be shown to have a mens rea , or guilty intent. Model Penal Code, sec. 3.05(1), (Tent. Draft No. 8, 1958). Indeed, the Code goes so far as to eliminate any requirement that the actor's belief in the necessity for the use of force for the protective purpose in question be arrived at without negligence or recklessness, unless the prosecution is for an offense for which recklessness or negligence suffices to establish culpability. Sec. 3.09(2). This is on the theory that negligence is not equatable with guilty intent in relation to a crime for which mens rea must be established. The scholars in this field are not ...