For reversal and remandment: Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Schettino and Mountain. For affirmance: None. The opinion of the Court was delivered by Mountain, J.
Defendant was convicted of murder in the second degree. Following an affirmance by the Appellate Division, 113 N.J. Super. 210 this Court granted certification. 58 N.J. 97 (1971).
The essential facts are set forth in the opinion of the Appellate Division and need be only briefly restated here. On the evening of the fatal shooting, defendant, a resident of Camden, had gone to Philadelphia to play cards with friends. Before departing, for some reason which is not explained, he placed a loaded revolver in the belt of his trousers. Failing to find the diversion he sought, he returned sooner than had been anticipated and found his wife gone from home. She was in fact attending a christening party in the neighborhood. Upon her return shortly thereafter, defendant "smacked" her in the face, apparently because she had left the house without his permission. His eleven year old stepdaughter, a witness to the incident, hastened back to the party and informed her uncle Carlos, defendant's brother-in-law, of what had occurred. Carlos immediately armed himself with a knife from the kitchen and set out for his sister's home. The several statements of the actual encounter that ensued differ somewhat, but it is agreed that defendant was standing in the doorway of his home as Carlos approached the house and commenced to mount the porch steps. There was testimony that at about this point Carlos drew his knife and uttered some imprecation of a threatening nature. Defendant fired the revolver, with which he was still armed, inflicting a wound from which Carlos shortly died.
The ground of appeal which we think most significant relates to the right of a defendant to invoke the plea of self-defense as a justification for a killing, and more particularly
the application of the doctrine of retreat as a corollary to this rule.
N.J.S.A. 2A:113-6 provides, in pertinent part, that "[a]ny person who kills another * * * in his or her own defense, * * * is guiltless and shall be totally acquitted and discharged." At early common law self-defense did not justify homicide. A defendant who slew another to save his own life was nevertheless convicted and forced to seek relief as a suppliant for mercy. "The man who commits homicide by misadventure or in self-defense deserves but needs a pardon." 2 Pollock & Maitland, History of English Law, (2d ed. 1898) 479. Later, of course, the right to protect oneself became recognized as a complete defense to a charge of homicide. This appears always to have been the law in New Jersey.*fn1 But self-defense may be successfully invoked only in those cases where the act of killing is necessary or reasonably appears to be so in order to preserve the defendant's life or to protect him from serious bodily harm. State v. Hipplewith, 33 N.J. 300, 316 (1960). "Self-defense is measured against necessity." State v. Abbott, 36 N.J. 63, 69 (1961).
This brings us to a consideration of the question as to whether, and under what circumstances, a man must retreat when confronted by an assailant, before he may justifiably kill another in his own defense. Specifically, was the defendant in this case, standing on the threshold of his own home, required to seek refuge indoors rather than resort to deadly force? The doctrine of retreat may be broadly stated as requiring one who is attacked to withdraw, before employing deadly force in his own defense, where there lies open a safe avenue of escape and he is consciously aware of this fact; he may stand his ground and not retreat, if he
employs less than deadly force. State v. Abbott, supra, at 71-72. The result of an improper resort to deadly force, within the concept of this rule, is to deny the defendant the benefit of a plea of self-defense. Some other jurisdictions reject the doctrine of retreat, holding that one who is attacked may defend himself, even to the point of killing his assailant, as long as he had a right to be at the place where he was attacked. See, for example, State v. Blanton, 111 Ohio App. 111, 170 N.E. 2d 754, 758 (Ct. App. 1960); People v. Washington, 54 Ill. App. 2d 467, 204 N.E. 2d 25, 27 (App. Ct. 1965); Annot. 18 A.L.R. 1279, 1283 (1922). This state has, however, heretofore accepted the doctrine of retreat as an expression of the more humane and enlightened rule. State v. Abbott, supra. We continue to adhere to this view. "When it comes to a question whether one man shall flee or another shall live, the law decides that the former shall rather flee than that the latter shall die." Commonwealth v. Drum, 58 Pa. St. 9, 22 (1868).
While we take the general doctrine of retreat to be settled in this State, the case before us presents an exception to this rule which has not hitherto been squarely presented to this court.*fn2 Must a man retreat when attacked in his own dwelling house? The well nigh universal rule, with which we are in accord, declares that under such circumstances no duty to retreat arises.
A man is not bound to retreat from his house. He may stand his ground there and kill any person who attempts to commit a felony therein, or who attempts to enter by force for the purpose of committing a felony, or of inflicting great bodily harm upon an inmate. In such a case the owner or any member of the family, or even a lodger in the house, may meet the intruder at the threshold, and prevent him from entering by any means rendered necessary by the exigency, even to the ...