36 N.J. 63, 174 A.2d 881 (1961)
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.1
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.2
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.3
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 Appellate Division affirmed the conviction, and the Supreme Court granted certification.4
The incident took place on July 15, 1957. On direct examination Abbott was asked how much he weighed on that date and answered about 135 or 140 pounds, having lost weight from his usual close to 200 pounds. The court sustained an objection to a question about why his weight was so low.5 Prior to the trial of Abbott, the State had brought Michael Scarano to trial for assault with intent to kill Abbott, resulting in an acquittal.6
Whether the trial court properly instructed the jury upon the issue of self-defense?7
A jury charge on self-defense must be a clear, unambiguous guide related to the evidence in the case.8 It must explain that the issue of retreat arises only if the defendant intended to use deadly force.9 Deadly force is not justifiable if the actor knows he can avoid it with complete safety by retreating.10 The state bears the burden to prove beyond a reasonable doubt that the defendant knew retreat with complete safety was possible.11
No. The trial court gave an abstract charge on retreat that was not anchored to the two phases of the encounter on the common driveway.12 Abbott first faced Nicholas Scarano with fists after landing the initial punch, then faced Michael Scarano with a hatchet and Mary Scarano with a carving knife and fork.13 The instruction failed to limit retreat to situations where Abbott intended to use deadly force and failed to require that any retreat be with complete safety and with the defendant's knowledge of that safety.14 The charge instead tied the duty to retreat to whether Abbott appeared threatened by imminent danger of life or great bodily harm, which could have required retreat even against Nicholas's unarmed attack.15
The self-defense instruction was erroneous and the conviction must be reversed.16
Whether the defendant must demonstrate plain error to question the self-defense instruction?17
When a defendant requests a charge on an issue and objects to the trial court's refusal to give it, thereby alerting the court to the basic problem, appellate review is available even if the requested charge was itself erroneous, especially when the controlling principles are complex or unsettled.18
No. Abbott requested a charge on retreat and objected to the trial court's refusal to grant it.19 Although his request was erroneous, the trial court was alerted to the basic problem and charged differently.20 The Appellate Division noted the lack of a recorded protest to the charge as given, but the objection to the refusal preserved the issue for review without requiring a showing of plain error.21
Review of the self-defense instruction is available without a plain-error showing.22
Whether the doctrine of retreat applies to a charge of atrocious assault and battery?23
The doctrine of retreat, which reflects a policy concerning the use of deadly force, applies to a charge of atrocious assault and battery because an intent to do serious bodily harm is implicit in that offense and the same policy considerations obtain whether the end result is murder or a lesser harm.24
Yes. Abbott was charged with atrocious assault and battery under N.J.S. 2A:90-1 after the hatchet incident on the common driveway.25 The Appellate Division correctly held the doctrine applicable, and the same policy that limits deadly force in homicide cases applies here because the charge involves vicious or brutal conduct that may involve serious bodily harm.26
The doctrine of retreat applies to the charge of atrocious assault and battery.27
Whether the burden of proof with respect to self-defense and retreat was correctly stated?28
Although a defendant must adduce evidence to support a self-defense claim, once such evidence appears in the record the state bears the burden to prove beyond a reasonable doubt that the defense is untrue, and the same burden applies to proving that the defendant knew he could have retreated with complete safety.29
No. The trial court's instruction did not state that the burden rested on the state to prove beyond a reasonable doubt that Abbott knew he could retreat with complete safety.30 The correct rule, as applied to the facts of the hatchet struggle on the driveway, requires the jury to acquit if a reasonable doubt exists on the retreat issue.31
The burden of proof on self-defense and retreat was not correctly stated to the jury.32
Whether the trial court erred in excluding evidence of the defendant's weight and medical condition at the time of the incident?33
When a litigant seeks to introduce evidence and the trial court sustains an objection, the litigant need not utter a further formal objection if the court has already ruled, provided the litigant made known the desired ruling; however, the proponent should spread on the record the essence of the proffered proof so the appellate court can evaluate whether exclusion caused manifest wrong or injury.34
Yes. Abbott was asked why his weight had dropped to 135 or 140 pounds on July 15, 1957, from his usual near 200 pounds, but the court sustained the state's relevance objection.35 The proffered proof of serious medical conditions was relevant to his ability to defend with lesser force or to retreat with safety during the encounter with Nicholas, Michael, and Mary Scarano on the common driveway.36 Although the error was preserved, reversal was not required on this ground alone because the judgment was reversed for the faulty self-defense instruction.37
The exclusion of the weight and medical evidence was error, though reversal rested on other grounds.38
Whether the prior acquittal of Michael Scarano on a charge of assault with intent to kill barred the prosecution of Abbott?39
A prior acquittal of one participant in an altercation does not bar prosecution of another participant for offenses arising from the same incident when the charges and defendants are distinct.40
No. Before Abbott's trial the state had tried Michael Scarano for assault with intent to kill Abbott and obtained an acquittal.41 Abbott was separately indicted for atrocious assault and battery on each of the Scaranos.42 The distinct charges and defendants mean the prior acquittal created no bar to Abbott's prosecution.43
The prior acquittal of Michael Scarano did not bar Abbott's prosecution.44