State v. Grierson , 96 N.H. 36 ( 1949 )

The jury was instructed that if the respondent could reasonably have avoided the attack without using force to repel it, and failed to do so, then she was guilty. In my opinion this was error. If the view be taken that failure to retreat is merely "a circumstance to be considered with all the others in order to determine whether the defendant went farther than he was justified in doing" (Brown v. United States, 256 U.S. 335, 343), then it was error to impose a catagorical duty. Id. If the view be taken that retreat is a positive requirement where apparently possible with reasonable safety, except that one attacked in his dwelling may stand his ground, then the respondent was improperly deprived of the benefit of the exception, which should not be restricted to cases of attack by intruders. People v. Tomlins, 213 N.Y. 240; State v. Phillips, 38 Del. 24; Baugh v. State,215 Ala. 619.