107 N.E. 496, 497 (N.Y. 1914)
The defendant shot and killed his son, a young man of twenty-two.1 The shooting took place on August 26, 1913, in the little cottage in Stony Point where the son had been born and reared.2 On the trial, the father maintained that he had acted without premeditation when blinded by passion because of blows and insults.3 He also maintained that he had acted justifiably in lawful self-defense.4 The verdict of murder in the first degree is sustained by ample proof.5
The jury were properly instructed that homicide in self-defense is not justifiable unless there is reasonable ground to apprehend a design on the part of the person slain to commit a felony, or to do some great personal injury to the slayer.6 There must also be reasonable ground to apprehend that the danger is imminent.7 These instructions were coupled, however, with a statement that it was the defendant’s duty, if possible, to retreat and escape.8 The court stated that a man has no right to resort to force and violence against another, even where the danger is imminent, even where he has reasonable cause to believe that he is in danger, unless he has no reasonably safe means of escape and retreat.9
The homicide occurred in the defendant’s dwelling.10 The defendant admitted on cross-examination that it was possible for him to run away from the house and escape the danger.11 The portions of the charge on the duty to retreat were not excepted to by the defendant’s counsel.12
Whether the trial court's instructions that the defendant had a duty to retreat from his own dwelling before using force in self-defense were erroneous?13
Yes. The homicide occurred in the defendant’s dwelling. The trial court instructed the jury that a man has no right to resort to force and violence against another even where the danger is imminent unless he has no reasonably safe means of escape and retreat.17 The court further instructed that the defendant must have gotten off the porch and gone across the lot or anywhere to a place of safety.18
These instructions contradict the rule that when assailed in one's own home there is no duty to take to the fields and highways as a fugitive from one's own home.19 This principle applies whether the attack proceeds from an intruder or another occupant.20
The trial court's instructions that imposed a duty to retreat were erroneous as applied to the facts of this case.21
Whether the erroneous instructions on the duty to retreat require reversal of the conviction even though the defendant did not except to the charge?22
Yes. The portions of the charge which held the duty to retreat were not excepted to by the defendant’s counsel.26 The defendant admitted on cross-examination that it was possible for him to run away from the house and escape the danger. Therefore the charge was equivalent to an instruction that the defendant had failed to justify the homicide on the ground of self-defense.27
It amounted to a direction to find the defendant guilty of some degree of crime.28 The situation is the same in effect as if the issue of self-defense had not been submitted to the jury at all.29 It was submitted in form but not in substance.30
The erroneous instructions require reversal of the conviction and a new trial ordered despite the absence of an exception.31