71 N.J.L. 543 | N.J. | 1905
The opinion of the court was delivered by
The plaintiff in error was convicted of the crime of murder of the first degree in the killing of one Elmer Durant. The homicide took place at the New Jersey state prison, of which institution both the deceased and the defendant were inmates at the. time of Durant’s death. The two occupied the same cell, together with another convict, one Giles. All three were colored men. Shortly
The alleged errors, on account of which we are asked to set aside this conviction, are all directed at the charge of the court to the jury. The first of these relates to the instruction of the court upon the law of self-defence. The
The mere statement of the first of the two rules laid down in the Bonofiglio case suffices to show that the instruction complained of is in no way opposed to it. The one deals with the statutory right to take life in repelling an attempt to commit any one of certain crimes specified in the statute; the other with the right to take life in self-defence. Tire contention that the instruction is opposed to the second rrde in the cited ease is stated by counsel to rest upon this ground, namely, that “it imposed upon the accused the burden of establishing that the necessity for the homicide was actual
The next subject of criticism by counsel - is the following instruction of the court: “The question is whether the defendant has produced evidence of a character which raises a reasonable doubt of his guilt — a reasonable doubt whether he was not justified, in the defence of his life and limb, when he took the life of Durant.” It is argued that by this instruction the jury were confined, in their deliberation upon the efficacy of the plea of self-defence, to a -consideration of the evidence produced on behalf of the defendant, and were prohibited from considering evidence produced on the part of
Another excerpt from the charge, which is alleged to be erroneous, is as follows: “Therefore, gentlemen, as a summing up of this topic of self-defence, I charge you that if you find beyond a reasonable doubt that Jones prepared for or provoked the affray, he cannot successfully set up the plea of self-defence.” The error is said to be in the use of the disjunctive in the clause “prepared for or provoked the affray.” It is contended that by this instruction the jury were told, in effect, that if they should conclude from the evidence that the defendant had prepared for the affray, but had subsequently abandoned his intention, and was in nowise responsible for Durant’s attack upon him, they must, nevertheless, find that he was not justified in protecting himself.
Objection is also made to the following instruction to the jury r “If you find beyond a reasonable doubt, going outside of the matter of self-defence, that Jones premeditatedly, deliberately and willfully prepared for the use of the scissors blade, and used it in pursuance of that design, the degree of his criminality is murder in the first degree.” The criticism upon this part of the charge is that it requires the jury to convict of murder in the first degree, even though the intent to take life was not present. An examination of this-instruction shows the presence of an ellipsis. “In pursuance of that design” plainly refers to something antecedent. That antecedent is not in the excerpt itself. An examination of the charge shows that this particular instruction is immediately preceded by a statement that, to constitute murder in the first degree, there must be a settled, deliberate and premeditated intent to kill, followed by the execution of that intent. Reading the criticised excerpt in the light of what immediately preceded it, the instruction was that if tire defendant premeditatedly, deliberately and willfully prepared for the use of the scissors blade, and used it in pursuance of that design (i. e.. the design to kill the deceased), the degree of his criminality was murder in the first degree. That such is the legal rrrle prevailing in this jurisdiction is not controverted by the defence.
Other errors have been assigned to other parts of the charge, each one of which has received consideration from the
The conclusion reached is that the judgment under review must be affirmed.
For affirmance — Ti-te Chief Justice, Garretson, Pitney, Swayze, Yredenbuimhi, Yoorhees, Green, Gray. 8.
For reversal — The Chancellor, Dixon, Garrison, Bogert. Yroom. 5.