Matthews, Fritz and Botter. The opinion of the court was delivered by Fritz, J.A.D.
[134 NJSuper Page 577] Defendant appeals from her conviction by a jury of second degree murder. The difficult question in the case involves defendant's duty to retreat vel non in the circumstances here presented, a distinct variation on the theme already orchestrated by State v. Pontery, 19 N.J. 457 (1955), State v. Abbott, 36 N.J. 63 (1961), State v. Bonano,
The pertinent facts are not in serious dispute. Defendant and her husband Larry had separated. Thereafter she first occupied the apartment they had shared even though her husband was forceful to the point of criminality in demanding that she leave. When she refused, he left, returning a number of times. Subsequently he requested that she leave long enough for him to find a place. She went to her mother's home. Her husband moved all, or substantially all, his belongings elsewhere and vacated the apartment. Defendant returned to live there with a cousin.
On the night of the killing, defendant had been at a local bar with her apartment-mate cousin Charlene. Her husband came to the bar to solicit her company. In a discussion outside the bar, which was evidently not at all acrimonious, defendant refused her husband's invitation because, she told him, she "was going to go home and go to bed because I didn't feel that good."
Thereafter defendant, her cousin and a male companion named Ricky went first to a "White Castle" for a hamburger, and then the three returned to the apartment. But the cousin did not stay. She left defendant and Ricky, announcing her intention to return to the bar they had earlier visited. Ricky and defendant were playing records. Defendant exchanged her "top" for a housecoat, keeping her "slacks and things on." Charlene called twice, essentially to find out if everything was all right, and the second time to advise defendant that she was coming home.
Then Larry called. Defendant characterized his demeanor as nasty. She accused him of drinking. He did not believe the lie she told him when she responded to his inquiry by saying she was alone in the apartment.
What then transpired was graphically described by defendant in her testimony at the trial:
A A few minutes later I hear somebody coming up the steps because I was standing in the bedroom by the night stand because I went in the bedroom to answer the phone. So I heard somebody coming up the steps. So I heard the door. I didn't go open the door. I heard somebody. I hear the fist knock the door, because if you hit it with your fist it would open. You hit it very hard.
Q With a motion like this the door would open?
A It would come open. So Ricky was standing like in the living ...