Goldmann, Lewis and Matthews. The opinion of the court was delivered by Goldmann, P.J.A.D.
Defendant was indicted for murder, tried to a jury and, following an eight-day trial, found guilty of manslaughter. He was sentenced to a State Prison term of 5-7 years. His subsequent motion for reduction of sentence was denied. He appeals his conviction.
Defendant and his family lived in the upstairs portion of a two-family house in Newark, the downstairs being occupied by the Arnold family. Although once on good terms, ill will developed between the families, attended by frequent disputes and altercations.
On July 4, 1967 Wilkie Judd, Mrs. Arnold's brother, came to spend the holiday with the Arnolds. There was a good deal of beer drinking for most of the day, at a neighborhood barbecue in the afternoon and the Arnold apartment later on. The essence of the Arnold version of what occurred was that
toward evening Mrs. Arnold had admonished defendant's children for setting off firecrackers under a car, and she claimed to have been hit in the knee by an object thrown by defendant's son Anthony. The Arnolds called the police, and this infuriated defendant. When Mr. Arnold went outside to get some cigarettes from his car, he encountered the irate defendant, who came out of some bushes brandishing a car jack handle. After some words, defendant knocked Arnold unconscious. When Judd hurried outside to investigate and was bending over the injured Arnold, defendant struck and killed him. Mrs. Arnold claimed that defendant then assaulted her.
Defendant's account of the incident was completely different. He testified that his son Anthony had complained of Mrs. Arnold chasing him. When he went out for a paper a little later and walked down from the front porch he was accosted by Arnold, Judd and an unidentified third man, all of them threateningly waving knives. According to defendant, he had to flee the premises twice and, as he was in the course of again returning, picked up a jack handle that he happened upon as he was crossing a nearby vacant lot. He testified that as he approached the house the three men menaced him with their weapons and he began swinging the jack handle. Arnold and Judd were hit, and the third man ran away. This took place on the sidewalk or out in the street, where Judd was found. Arnold was taken to the hospital. Defendant said that after hitting the two men he went to a neighborhood bar where he told the bartender, "I have just killed a couple of fellows up the street," and asked that the police be called.
Defendant's testimony was substantially corroborated by his wife and son. The wife claimed that Mrs. Arnold had removed the knives from the hands of the unconscious men in the street. The police found the jack handle under Arnold's car and various kitchen knives in the Arnold apartment. At trial defendant claimed excusable homicide by way of self-defense. N.J.S.A. 2A:113-6.
Defendant first argues that the trial judge incorrectly charged the jury as to self-defense. This is raised as plain error, no objection having been taken. The judge said:
When a person claims he acted in self-defense the question of whether he should have retreated arises. The duty to retreat does not arise unless a person resorts to the use of deadly force. A deadly force is force which the defendant has reason to know will create a substantial risk of causing death or serious injury.
Now, if you find that the defendant intentionally resorted to the use of force with a knowledge of an available opportunity to retreat with complete safety he was then under a duty to retreat without resorting to the use of deadly force. However, there is no positive duty to retreat nor a categorical proof of guilt if he in good faith believed even though mistakenly that he could not have retreated with complete safety to himself. The opportunity to retreat, however, is a factual element to be considered under the principles stated above together with all other surrounding circumstances in determining only such resistance and force as appeared to be necessary under all the circumstances.
Specifically, defendant urges that since the incident occurred within the "curtilage" of his own premises, he was under no affirmative duty to retreat before resorting to deadly force in his own defense. He further contends that even if one were to assume that the attack upon him by Judd occurred in the street a few feet from the sidewalk, he was still within the curtilage of his own home and hence under no obligation to retreat.
The issue of retreat arises only where a defendant resorts to deadly force. The general rule is that he has a duty to retreat from his assailant when attacked, assuming that he reasonably perceives that he can do so in complete safety. State v. Abbott , 36 N.J. 63, 69 et seq. (1961); State v. DiMaria , 88 N.J.L. 416 (Sup. Ct. 1916), aff'd o.b. 90 N.J.L. 341 (E. & A. 1917). However, this common law doctrine is not applied when the person is assailed in his own dwelling; in such a case he is under no duty to ...