92 N.J.L. 53 | N.J. | 1918
The opinion of the court was delivered by
The principle on which the right of self-defence rests and the limitations of that right have been settled by the decision of the Court of Errors and Appeals in Brown v. State, 62 N. J. L. 666, 702. The court there said: “The foundation of the right to take life by the way of self-defence is necessity. There must exist a necessity for resorting to violence for self-protection and necessity for using the means that were used to secure the defence of the person.. An accused is justified in rising force to defend his person only when force is necessary to accomplish that end. If the injury apprehended could be otherwise avoided, the prisoner was bound to avoid the danger without resorting to violence, and even if the circumstances be such as to require the use of force to repel the assault he wall be inexcusable if he carried his defence beyond the bounds of necessity. The danger must be immediate, and must be actual or else apprehended on reasonable grounds of which the jury is to judge.” Underlying this rule is the assumption that the necessitj1- must not be of the defendant’s own creation. It would be contrary to the fundamental principles of the law if a man could justify what would otherwise subject him to legal liability, by his
The situation then is this: The decedént had the right to slay in self-defence if in reasonable apprehension for his own life, as he must have been, and he had the right to arrest the prisoner as a disorderly person. Whatever he did by way of assaulting the prisoner would have been legal unless he used excessive force. The prisoner could not justifjr resistance to lawful force. In the Brown ease the court said: “If the arrest was a lawful one the officer had the right to use the force necessary to render the arrest effective, and if the prisoner, by his resistance to the arrest, brought violence upon himself, which put his body in danger, that cannot be made justification for killing the officer.” The basis of the rale is the lawfulness of the arrest, not the character of the person making it, and the same rule applies to a person other than an officer, when he has the lawful right to arrest. The only question then is whether there was any evidence that the decedent used excessive force. It would be superfluous to add anything on this subject since the prisoner was armed
The judge allowed in evidence a dying declaration under circumstances that require some comment. The declaration was made by an Italian who spoke English imperfectly, and was taken down in narrative form by the police magistrate. The magistrate says: “When I asked him questions he would say in English — -some part of it I possibly did not understand and I would have the same question repeated by De Luccia, who would explain to me in Italian what: he said.” De Luccia was an interpreter who was not produced as a witness at the tidal. A statement as written out by the magistrate was signed by the deceased. A statement so taken is subject to criticism as to its accuracy, hut we see no reason why it is not admissible. It is like any other signed statement when it is once established as a dying declaration. The fact that it also contained the magistrate’s own statement tending to show that the declarant realized that death was impending docs not vitiate the statement of the decedent himself. While these remarks of the magistrate were no evidence of the fact, that was established hv proper evidence and the finding of the trial judge on the point is conclusive. State v. Monich, 74 N. J. L. 522. Nor did the prisoner in fact suffer any
The objection that there was no proof that the deceased believed in a Supreme Being or in a future state of punishment and reward is unsubstantial. The law is settled for us by what this court said in Donnelly v. State, 26 N. J. L. 601, 620.
The evidence of threats, so far as it was excluded, was properly excluded; the prisoner sought the decedent notwithstanding his knowledge of the threats. In fact he was allowed to testify to the threats himself.
The trial judge charged the jury that if they took the ' prisoner’s version of the case, they must find him guilty of
Let the judgment be affirmed.