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*Note: The following opinion was edited by AudioCaseFiles' staff.
© 2007 AudioCaseFiles, LLC.

State v. Abbott
36 N.J. 63, 174 A.2d 881
Supreme Court of New Jersey, 1961

Chief Justice WEINTRAUB. Frank Abbott was convicted of atrocious assault and battery. The Appellate Division affirmed. . . .

Abbott shared a common driveway with his neighbors, Michael and Mary Scarano. The Scaranos engaged a contractor to pave their portion. Abbott obtained some asphalt from the contractor and made a doorstop to keep his garage door from swinging onto the Scaranos' property. Nicholas Scarano, who was visiting with the Scaranos, his parents, objected to Abbott's innovation. After some words between them a fist fight ensued.

Although Abbott managed to land the first punch, with which he sent Nicholas to the ground, a jury could find Nicholas was the aggressor. At this point Michael Scarano came at Abbott with a hatchet. Michael said the tool had just been returned to him by the contractor, and denied he meant to use it as a weapon. According to Abbott, Mary Scarano followed, armed with a carving knife and large fork. The actors gave varying versions of what happened, but the end result was that all of the Scaranos were hit by the hatchet. Nicholas received severe head injuries. Abbott claimed he too suffered a laceration.

Abbott admitted he finally wrested the hatchet from Michael but denied he wielded it at all. Rather he insisted that the Scaranos were injured during a common struggle for the instrument. A jury could, however, find Abbott intentionally inflicted the blows.

Abbott was separately indicted for atrocious assault and battery upon each of the Scaranos. There was a common trial of these indictments. The jury acquitted Abbott of the charges relating to Michael and Mary, but found him guilty as to Nicholas.

The principal question is whether the trial court properly instructed the jury upon the issue of self-defense. . . . It charged . . . upon the subject of retreat, and it is here that error is alleged. . . .

As to retreat, the trial court charged upon two hypotheses. One was that the critical events occurred upon Abbott's property. Upon that basis, the court said Abbott could stand his ground, and, of course, of this Abbott does not complain. The second hypothesis was that the alleged offense occurred upon the common driveway. Presumably on the authority of State v. Pontery, . . . the trial court held that since all the principals were equally entitled to be on the driveway, Abbott could not claim immunity from the ordinary retreat rule. Abbott does not question that thesis, but disputes the court's statement of the conditions under which an obligation to retreat would arise. . . .

The subject of retreat usually arises in homicide matters. We will first discuss it in that context, and then consider whether the principles apply to a charge of atrocious assault and battery. . . .

We should make it clear that we are discussing the doctrine of retreat and not the subject of the use of excessive force. If the force used was unnecessary in its intensity, the claim of self-defense may fall for that reason. In the discussion which follows we assume a defendant used no more force than he believed necessary to protect himself in the circumstances as they reasonably appeared to him, and consider only whether the claim of self-defense should be denied because he could have avoided the use of that force by retreating.

The question whether one who is neither the aggressor nor a party to a mutual combat must retreat has divided the authorities. Self-defense is measured against necessity. Brown v. State. . . . From that premise one could readily say there was no necessity to kill in self-defense if the use of deadly force could have been avoided by retreat. The critics of the retreat rule do not quarrel with the theoretical validity of this conclusion, but rather condemn it as unrealistic. The law of course should not denounce conduct as criminal when it accords with the behavior of reasonable men. Upon this level, the advocates of no-retreat say the manly thing is to hold one's ground, and hence society should not demand what smacks of cowardice. Adherents of the retreat rule reply it is better that the assailed shall retreat than that the life of another be needlessly spent. They add that not only do right-thinking men agree, but further a rule so requiring may well induce others to adhere to that worthy standard of behavior. . . .

Other jurisdictions are closely divided upon the retreat doctrine. It is said that the preponderant view rejects it. Perkins, Criminal Law. . . . Our Court of Errors and Appeals deliberately adopted the retreat rule with an awareness of the contending views, State v. Di Maria . . . , and the doctrine has since been invoked. State v. Centalonza. . . . The Model Penal Code embraces the retreat rule. . . .

We are not persuaded to depart from the principle of retreat. We think it salutary if reasonably limited. Much of the criticism goes not to its inherent validity but rather to unwarranted applications of the rule. For example, it is correctly observed that one can hardly retreat from a rifle shot at close range. But if the weapon were a knife, a lead of a city block might well be enough. Again, the rule cannot be stated baldly, with indifference to the excitement of the occasion. As Mr. Justice Holmes cryptically put it, "Detached reflection cannot be demanded in the presence of an uplifted knife." Brown v. United States. . . . Such considerations, however, do not demand that a man should have the absolute right to stand his ground and kill in any and all situations. Rather they call for a fair and guarded statement of appropriate principles. . . .

We believe the following principles are sound:

1. The issue of retreat arises only if the defendant resorted to a deadly force. It is deadly force which is not justifiable when an opportunity to retreat is at hand. Model Penal Code section 3.04(2)(b)(iii). As defined in section 3.12(2) a deadly force means "force which the actor uses with the purpose of causing or which he knows to create a substantial risk of causing death or serious bodily harm."

Hence it is not the nature of the force defended against which raises the issue of retreat, but rather the nature of the force which the accused employed in his defense. If he does not resort to a deadly force, one who is assailed may hold his ground whether the attack upon him be of a deadly or some lesser character. Although it might be argued that a safe retreat should be taken if thereby the use of any force could be avoided, yet, as the comment in the Model Penal Code observes, "The logic of this position never has been accepted when moderate force is used in self-defense; here all agree that the actor may stand his ground and estimate necessity upon that basis." . . . Hence, in a case like the present one, the jury should be instructed that Abbott could hold his ground when Nicholas came at him with his fists, and also when Michael and Mary came at him with the several instruments mentioned, and that the question of retreat could arise only if Abbott intended to use a deadly force.

2. What constitutes an opportunity to retreat which will defeat the right of self-defense? As section 3.04(2)(b)(iii) of the Model Penal Code states, deadly force is not justifiable "if the actor knows that he can avoid the necessity of using such force with complete safety by retreating. . . ." We emphasize "knows" and "with complete safety." One who is wrongfully attacked need not risk injury by retreating, even though he could escape with something less than serious bodily injury. It would be unreal to require nice calculations as to the amount of hurt, or to ask him to endure any at all. And the issue is not whether in retrospect it can be found the defendant could have retreated unharmed. Rather the question is whether he knew the opportunity was there, and of course in that inquiry the total circumstances including the attendant excitement must be considered. We add that upon a retrial the facts as developed in the light of this principle may be such that Abbott would be entitled to an instruction that if his version of the approach by Michael and Mary is accepted, the issue of retreat must be resolved in Abbott's favor. . . .

As we have said, the subject of retreat arises most often in homicide cases. It is equally pertinent if the charge is assault with intent to kill. State v. Centalonza. . . . Here the charge is atrocious assault and battery, a crime which involves vicious or brutal conduct. State v. Riley. . . . An intent to kill is not an ingredient of that offense, but an intent to do serious bodily harm would seem to be implicit. The doctrine of retreat reflects a policy with respect to the use of deadly force, and the same policy considerations equally obtain if the end result is something less than murder. . . .

The judgment is reversed and the matter remanded for further proceedings not inconsistent herewith.

This case is in these books

• Criminal Law and Its Processes: Cases and Materials
• Kadish, Schulhofer
• 8th Edition