# State v. Christener > Supreme Court of New Jersey · July 14, 1976 · 71 N.J. 55 URL: https://www.frixlaw.com/law-library/cases/9857541 ## Case - **Full name:** State of New Jersey, Plaintiff-Respondent, v. Benjamin A. Christener, Jr., Defendant-Appellant - **Court:** Supreme Court of New Jersey - **Decided:** July 14, 1976 - **Citations:** 71 N.J. 55; 362 A.2d 1153; 1976 N.J. LEXIS 140 - **Precedential status:** Published - **Opinion:** Concurrence by Schumbee - **Judges:** Passman, Hughes, Schumbee - **Cited by:** 54 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Overruled on other grounds by State v. Wilder, 193 N.J. 398 (2008). - Negative treatments: 1 - Distinguished by: 1 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9857541 ## Opinion text Schumbee, J. (concurring). The jury was correctly charged on the elements of first and second degree murder. The essential elements of first degree murder, premeditation, deliberation and willfulness, were carefully and fully defined. Complete explication of murder in the second degree and manslaughter followed. The court charged that “[e]ach individual mind has to arrive at [his] conclusion separately, and each juror, having in view the oath he has taken, and his and her duty and responsibility thereunder, should have his and her own mind convinced beyond a reasonable doubt upon all the evidence before he or she can conscientiously consent to a verdict of guilty.” In its supplemental charge the jury was instructed: The law contemplates that yon shall by discussion harmonize your views if possible, but not that you shall compromise, divide, and yield your personal convictions for the purpose of arriving at an agreement, [emphasis supplied]. The jury’s finding of not guilty of murder is consonant with the majority’s opinion that there was not sufficient evi *78 deuce to justify a charge of first degree murder. The jury found as a fact that the elements of first and second degree murder were missing. The situation was the same as i£ the jurors had responded to written interrogatories in which they pronounced findings of no premeditation and no malice. The majority’s conclusion that the manslaughter conviction was a compromise is sheer speculation and conjecture. Nothing in the record or the three verdicts reached supports the opinion that the jurors did not comply with the instruction that they were not to compromise their convictions. Nor can any such support be found to the effect that the jurors ignored their oaths of office and the trial court’s instructions. Although the State’s evidence with respect to self-defense was not very impressive, it was sufficient to cause submission of the question to the jury. It is pure fancy to intimate that they agreed upon a manslaughter verdict as a result of a settlement of different positions. Whether or not there was enough evidence to justify submission of the first degree murder charge to the jury is not relevant in ascertaining whether the jury compromised on reaching its result. In any event under the circumstances here, the error, if any, of submitting a first degree charge to the jury was harmless. St ate v. Adams, 50 N. J. 1 (1967); State v. Moynihan, 93 N. J. L. 253 (E. & A. 1919). The majority has apparently adopted the Michigan rule that it is automatically reversible error for a trial judge to deliver a jury instruction on a criminal charge if there is insufficient evidence to support the instruction. People v. Vail 393 Mich. 460 , 227 N. W. 2d 535 (1975); People v. Hansen, 368 Mich. 344 , 118 N. W. 2d 422 (1962); People v. Marshall 366 Mich. 498 , 115 N. W. 2d 309 (1962). I cannot assent to an inflexible principle which will not further the cause of justice and will add unnecessary trials to an already overburdened criminal judicial system. There having been acquittals of murder, the manslaughter conviction was probably predicated on the defendant’s use of *79 unreasonably excessive force in self-defense or defense of Mrs. Erench. The defendant in his argument on the motion for a new trial contended that the jury’s conclusion of excessive force was against the weight of the evidence. The trial court denied the motion for the new trial by simply remarking that self-defense was a jury question. It did not expressly apply the proper principles to test whether a new trial was warranted, State v. Sims, 65 N. J. 359, 373-374 (1974), and the Appellate Division approved that action. It is assuredly appropriate for this Court to evaluate the record. Dolson v. Anastasia, 55 N. J. 2(1969); Kulbacki v. Sobchinsky, 38 N. J. 435 (1963), concurring opinion of Justice Haneman, at 454, and dissenting opinion of Chief Justice Weintraub, Justice Jacobs and Justice Erancis at 459. When John Erench came to the defendant’s mobile home in a drunken state shortly before 3:00 a.m. on October 1, 1973, it was not to visit his infant daughter. His banging on the storm door and shouting obscenities led to the defendant’s phoning the police for aid. As the door was giving way the defendant went to the rear for his shotgun. On his return to the living room, he shot Erench who, having ripped two doors down, had entered the home and was moving toward Mrs. Erench or the defendant. What purpose could Erench have had to break into the home at that hour except to inflict harm on Mrs. Erench and the defendant? Both Mrs. Erench and the defendant justifiably feared him. The defendant, after warning Erench, had no other reasonable choice except to use his gun. He was under no duty to retreat before using deadly force. State v. Bonano, 59 N. J. 515, 518-533 (1971). A canvass of the entire record satisfies me that the verdict was against the weight of the evidence and it clearly and convincingly appears that there was a manifest denial of justice. B. 3:10-1 and B. 3 :30-1. I would reverse and remand for a new trial. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9857541. Public record. Not legal advice.