Opinion by
Defendant, Willie Alma Fraser, was charged with the murder of her estranged husband, Charles Fraser, in her home, 1331 South Opal' Street, Philadelphia, Pennsylvania, on April 2, 1950. She pleaded “not guilty” and asserted self-defense. The jury returned a verdict of “guilty of voluntary manslaughter”. Following dismissal of defendant’s motion for a new trial, sentence was imposed from which this appeal is taken.
At the outset of the trial the District Attorney stated in his opinion the evidence to be presented did not warrant a finding of murder in the first degree. It appeared that defendant and her husband were estranged and had been separated for about eight months before the killing took place. During the period they had lived together they had engaged in a series of violent quarrels and defendant had several times been beaten by her husband. Defendant had established her residence in an apartment house and had living with her a youngster of about seven years of age for whom she was caring. The husband went to his wife’s apartment on some occasions, but only as a trouble maker, compelling the defendant to call the police. On the
The learned trial judge charged the jury, “. . . it must appear that the defendant had no other reasonable means of escape except by killing.”, “ . . if .she failed to use opportunities of escape available to her, then of course, whatever she did would not be excus
The rule governing self-defense in this regard is well stated in 26 Am. Jur., §155, page 263, as follows: “Regardless of any general theory to retreat as far as practicable before one can justify turning upon his assailant and taking life in self-defense, the law imposes no duty to retreat upon one who, free from fault in bringing on a difficulty, is attacked at or in his own dwelling or home. Upon the theory that a man’s house is his castle, and that he has a right to protect it and those within it from intrusion or attack, the rule is practically universal that when a person is attacked in his own dwelling he may stand at bay and turn on and kill his assailant if this is apparently necessary to save his own life or to protect himself from great bodily harm. This is the rule both at common law and by statute in many states ... A man in his own house was treated as ‘at the wall,’ and could not, by another’s assault, be put under any duty to flee therefrom. The fact that retreat can be safely effected does not render it necessary for a man assaulted in his dwelling to retreat therefrom. The view has even been taken that the right to kill without retreating exists as to one’s home or place of residence even though an immoral business is carried on there.”
The same rule is enunciated in 40 C. J. S., §130 (c), page 1015: “A person need not retreat or seek to escape, even though he can do so without increasing his danger, but may lawfully resist even to the extent of taking life if necessary, where, being without fault
We believe that the rule stated in the above treatises has always been recognized as the law in this State, and the fact that it has not been seriously questioned accounts for the apparent dearth of any express statement or ruling on the subject by our appellate courts. In other jurisdictions the rule has been carefully considered and adopted. Where a man is dangerously assaulted or menaced in his own house he is already at the wall and need not retreat:
State v. Miller, 221
N. C. 356,
The opinion of the lower court in dismissing defendant’s petition for a new trial states that the right to kill in self-defense should depend upon the circumstances of the attack and not upon the place where the attack occurs. Applying that rule to the facts, the court concludes that it was clear that there was no necessity or justification for the taking of human life, adding, “The essential element, which must be present for such right to exist, is that the attack be by an intruder. In the instant case, although the deceased may not have been welcome at defendant’s apartment, he could not be classified as an intruder. He was defendant’s lawful husband, and as such he was entitled to return to his wife’s apartment.” The court relied upon
Commonwealth v. Johnson,
In the instant case, however, the mere fact that deceased and defendant were husband and wife does not compel the application of the ordinary rules of self-defense on the theory that each had an equal right to be on the premises. Here the defendant and deceased had been separated and defendant had maintained her separate residence. Because of the estrangement and separation of the husband and wife, it does not appear that both had an equal right to be there. Clearly, the husband, under the circumstances, could be regarded as an intruder in his wife’s home, and the jury should have been instructed that if they found the husband was an intruder and that the defendant had reason to believe and did believe that what she did was necessary for the safety of her own life or to protect her from great bodily harm, she was not obliged to retreat or attempt to escape; and that the killing under such circumstances constituted justifiable homicide, entitling her to acquittal. The failure to so charge was reversible error.
The judgment is reversed and a venire facias de novo is awarded.