The opinion of the court was delivered by
Swayze, J.
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 [57]*57own act. The prisoner was under no necessity oí breaking in the apartment occupied by Galizio, and that in the dead of night, after assuring himself that Galizio was asleep. Even if we assume in his favor that the apartment was rented by his wife, and that he had the right to break into that apartment at the hour lie did notwithstanding his agreement nol to enter any house or place where she should dwell, reside or be, and if we assume further that he supposed Galizio was there and might he caught in the act of adultery, he was under no necessity of breaking in as he did. He confessedly knew Galizio’s violent character and the threats made by Galizio against his life, and the illicit relations with his wife. He must have known that his own appearance at that hour armed with a revolver would provoke a combat. His entry at such a time, in such a manner, so armed, was in any aspect of the case an act of aggression. It would of course bo too much to say that an aggressor can never justify himself by acting in self-defence, but prima facie it is his adversary who lias that right. That is particularly so in a case like the present where the situation was such that the decedent probably had the right, to kill the prisoner. Eor it is well settled that a person under a reasonable apprehension of death or great bodily harm may kill his adversary in self-defence. This rule to which the prisoner himself appeals would have justified the decedent. A jury could hardly find otherwise than that the appearance of an armed man with whom he had had differences, in the bedroom of the deceased at that hour of the night and the rousing of the deceased from sleep, was a situation to cause a reasonable apprehension of death or great, bodily harm and to justify him in slaying the prisoner. There were other circumstances which would have justified the deceased in arresting the prisoner. Section 2 of the act concerning disorderly persons enacts that any person who shall be apprehended having upon him or hei* any pick-lock, key, crow, jack, bit or other implement with an intent to break and enter any building shall be deemed and adjudged to be a disorderly person. The prisoner by his own evidence had a putty knife, adapted for prying up a window sash, and [58]*58commonly used by glaziers for removing the putty that secures panes of glass in place. He had provided himself with it for the purpose of breaking in the apartments where the deceased was shot, and had actually used it for the purpose. He was clearly a disorderly person within the meaning of the act. Section 36 makes it the duty of police officers, and lawful for any other person to apprehend without warrant or process, any disorderly person, and take him before a magistrate. In Brown v. State, supra (at p. 697), Justice Depue called attention to the importance of this statute, which the trial judge had excluded from the consideration of the jury, in order to say that it was not to be excluded. The court in that case was dealing with the justification of an officer but, under section 36 the right of any person is the same as the ■ right of an officer; the difference between the two being that the officer is under a duty to make the arrest. The distinction between the right of an officer and the right of one not an officer, to arrest in case of felony and misdemeanor, considered in the same case, has no application to the case of a disorderly person.
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 [59]*59with a deadly weapon effective at some distance, the decedent unarmed except (if the prisoner is to be believed, as he must be for the present: purpose), with an axe hastily seized as he awoke from sleep. The prisoner neither said nor did anything to allay the apprehension which the decedent could not have avoided feeliilg, nor did he retreat as he might readily have done; he does not even say that the way by which he had entered was not: open for retreat, and he had the advantage of a weapon which made it possible for him to “cover” his adversary. We think the trial judge was right in taking the question of self-defence from the jury. We have dealt with the question as presented by the charge rather than as presented by the ruling on evidence, for the reason that the remarks made by the judge on the original offer of evidence became harmless when the prisoner, the only possible witness, vas subsequently permitted to tell his story in full without interruption.
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.
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The opinion of the court was delivered by
Swayze, J.
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 [57]*57own act. The prisoner was under no necessity oí breaking in the apartment occupied by Galizio, and that in the dead of night, after assuring himself that Galizio was asleep. Even if we assume in his favor that the apartment was rented by his wife, and that he had the right to break into that apartment at the hour lie did notwithstanding his agreement nol to enter any house or place where she should dwell, reside or be, and if we assume further that he supposed Galizio was there and might he caught in the act of adultery, he was under no necessity of breaking in as he did. He confessedly knew Galizio’s violent character and the threats made by Galizio against his life, and the illicit relations with his wife. He must have known that his own appearance at that hour armed with a revolver would provoke a combat. His entry at such a time, in such a manner, so armed, was in any aspect of the case an act of aggression. It would of course bo too much to say that an aggressor can never justify himself by acting in self-defence, but prima facie it is his adversary who lias that right. That is particularly so in a case like the present where the situation was such that the decedent probably had the right, to kill the prisoner. Eor it is well settled that a person under a reasonable apprehension of death or great bodily harm may kill his adversary in self-defence. This rule to which the prisoner himself appeals would have justified the decedent. A jury could hardly find otherwise than that the appearance of an armed man with whom he had had differences, in the bedroom of the deceased at that hour of the night and the rousing of the deceased from sleep, was a situation to cause a reasonable apprehension of death or great, bodily harm and to justify him in slaying the prisoner. There were other circumstances which would have justified the deceased in arresting the prisoner. Section 2 of the act concerning disorderly persons enacts that any person who shall be apprehended having upon him or hei* any pick-lock, key, crow, jack, bit or other implement with an intent to break and enter any building shall be deemed and adjudged to be a disorderly person. The prisoner by his own evidence had a putty knife, adapted for prying up a window sash, and [58]*58commonly used by glaziers for removing the putty that secures panes of glass in place. He had provided himself with it for the purpose of breaking in the apartments where the deceased was shot, and had actually used it for the purpose. He was clearly a disorderly person within the meaning of the act. Section 36 makes it the duty of police officers, and lawful for any other person to apprehend without warrant or process, any disorderly person, and take him before a magistrate. In Brown v. State, supra (at p. 697), Justice Depue called attention to the importance of this statute, which the trial judge had excluded from the consideration of the jury, in order to say that it was not to be excluded. The court in that case was dealing with the justification of an officer but, under section 36 the right of any person is the same as the ■ right of an officer; the difference between the two being that the officer is under a duty to make the arrest. The distinction between the right of an officer and the right of one not an officer, to arrest in case of felony and misdemeanor, considered in the same case, has no application to the case of a disorderly person.
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 [59]*59with a deadly weapon effective at some distance, the decedent unarmed except (if the prisoner is to be believed, as he must be for the present: purpose), with an axe hastily seized as he awoke from sleep. The prisoner neither said nor did anything to allay the apprehension which the decedent could not have avoided feeliilg, nor did he retreat as he might readily have done; he does not even say that the way by which he had entered was not: open for retreat, and he had the advantage of a weapon which made it possible for him to “cover” his adversary. We think the trial judge was right in taking the question of self-defence from the jury. We have dealt with the question as presented by the charge rather than as presented by the ruling on evidence, for the reason that the remarks made by the judge on the original offer of evidence became harmless when the prisoner, the only possible witness, vas subsequently permitted to tell his story in full without interruption.
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 [60]*60manifest wrong or injury by the admission of the declaration. In material matters it agreed with the testimony of the prisoner, except in the statement that the prisoners wife was in another room. This might have been harmful if the defendant was entitled to have the jury consider whether his offence was not reduced to manslaughter. But the rule is not that the offence is always reduced to manslaughter when a husband kills the paramour of his wife, in the act of adultery, but only when the circumstances are such that the husband may be supposed to have acted in a sudden transport of passion, or heat of blood upon a reasonable provocation, and without malice. The provocation must be of such a character and so close upon the act of killing that the prisoner for the moment could be considered as not master of his own understanding. If such an interval of time elapsed between the provocation and the act of killing as is reasonably sufficient for reason to resume its sway, the act is not mitigated to manslaughter. 1 Russell on Crimes 786; Brown v. State, supra (at pp. 710, 711, 713). The rule is not applicable to a case like the present where the husband kills the adulterer deliberately and upon revenge after the fact and sufficient cooling time. 1 Russell 724. In this case the defendant knew of the adulterous relations, as he says, between his wife and the decedent, and armed with a deadly weapon was seeking him out in the hope and expectation of catching him in the act. Rules applicable to conduct due to a transport of passion cannot apply to so deliberate an act.
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 [61]*61manslaughter at least- This was favorable to the prisoner if self-defence was excluded. The prisoner’s own claim was either that he acted in self-defence, or in a transport of passion caused by finding the deceased in bed with the prisoner’s wife. The first claim being inadmissible, the second only is to be considered, and that on the prisoner’s own claim, merely reduced the crime from murder to manslaughter. The judge might well have told the jury that' under the circumstances of this case the grade of crime was not reduced to manslaughter.
Let the judgment be affirmed.