The sun. [volume] (New York [N.Y.]) 1833-1916, 1915-01-10
RIGHT TO HOME MAY
SAVE SLAYER OF SON
Higher Court Holds Man At
tackled Need Not Flee From
Own House.
NEW TRIAL FOR T0MLINS

A father who killed his son in his own
house in eclf-defence and was sentenced
TO death Ia to have a. new trial and is
likely to be freed through a decision by
the Court Of Appeals that the trial Judge
through his instructions to the Jurors
practically deprived them OF the right 20
consider the issue OF self-defence.
Tho case was tried In Rockland county.
where a jury recently acquitted William
NJ. Cleary OF killing his son-in-law. The
defendant was Newton Tomllns, who lived
with his twenty-two-year-old son IN
little cottage at Stony Point. where the
son had been born and reared. Tomlins
shot and killed his son on August 20,
1913. and on tho trial testified that ne
acted without premeditation when
blinded by passion because Of blows and
insults"
Judge Cardozo. writing the majority
opinion OF the Cour, of Appeals from
which Judges Collin and Cuddeback dis
scented, said that the verdict of murder
in the first degree was sustained by ample
proof but the court had TO consider
whether there was material error in tho
statement OF law by the trial Justice.
saw Duty of Father 10 Retreat.
The trial Judge pointed out that when
attacked by his son It was the defendants
duty to retreat and escape ~ possible, and
in his charge said
"A man has no right to resort 90 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
snfe means OF retreat We may not feel
always like retreating In the face OF an
attack: u may not seem manly TO ue
but II is the law that II n man cnn safely
retreat and thereby escape a conflict with
"A ,nt hpr 1a min do an though IL NAV
not seem disnifed and manly
Commenting on this statement OF tho
law, Judge Cardozo says the Instructions
are erroneous as applied to the cdse Mt
bar" The opinion continues
THE homicide occurred In the defend
ants dwelling II IL not now and never
has been the law that man assalled in
his own dwelling Is bound to retreat II
assailed there he may stand his ground
and resist the attack. He Is under no
duty to take to the fields and the high
ways, a fugitive from his own home.
Flight is for sanctuary and shelter. and
shelter, II not sanctuary. ls in the home.
That there is In such n situation no duty
to retreat Il. we think, the settled law in
the United states as we'll as in England"
Direction to Find Him Guilty.
Justice Cardozo said that Tomlins ad-
mitted on cross-eNamination that II was
possible for him to run away from the
house and escape the danger and that
accordingly the charge OF the trial Judge
WAS that Tomlins had failed to justify
the homicide on the ground OF self
defence and was thus a direction TO
Ind the defendant guilty. ut least of some
degree Of crime"
The court SAYS the situation lie the
same in effect as II tine issue Of self-de-
fence had not been submitted TO the Jury
at all. and concludes:
1T ia the defendants right to have
the quest on OF his guilt determined by
the verdict OF a jury rather than by a
judgment OF this court. and whatever our
opinion OF his guilt may be. we cannot
say. until Il has been passed upon by a
jury. that Justice has been done"
Chief Justice Bartlett and Judges
Werner. Hiscock and Hogan agreed with
Judge Cardozo.