Opinion
Argued October 7, 1963 —
Decided October 21, 1963.
Mr. Charles E. Starkey argued the cause for appellant.
Mr. William A. O'Brien, Assistant Prosecutor, argued the cause for respondent ( Mr. James A. Tumulty, Jr., Hudson County Prosecutor, attorney).
The opinion of the court was delivered
Defendant appeals from a conviction of murder in the second degree. She asserted self-defense. The evidence raised a jury question upon that issue and it was left to the jury.
The defense requested a charge that the burden was upon the State to prove beyond a reasonable doubt that the claim of self-defense was untrue and that there must be a verdict of not guilty if the jury found a reasonable doubt as to whether defendant killed in self-defense. The request was in the very language of State v. Abbott, 36 N.J. 63 , 72 (1961), and defendant expressly referred to that case in her written request. The trial court should have so charged. Instead it instructed the jury that the burden of persuasion was upon defendant. The judgment must therefore be reversed and the matter remanded to the end that there may be a retrial.
For reversal — Chief Justice WEINTRAUB and Justices JACOBS, FRANCIS, PROCTOR, HALL, SCHETTINO and HANEMAN — 7.
For affirmance — None.