30 Ky. 478 | Ky. Ct. App. | 1832
cLlivcred the opinion of the court.
To an action on the case, brought by ■Gray against Combs, for killing a negro tnan slave, the latter plead in substance, that as clerk and store keeper, he had the care and custody of a brick ware-house, containing a variety of goods of great value, that before the killing said slave, some person having been in the habit of entering said Ware-house, at night, and stealing goods therefrom, though well secured with good doors and locks, and the defendant not being able to apprehend said thief, for the protection of said property and prevention of such stealing, set up a loaded gun on the inside of the1 house, with a string tied to the trigger; that said slave, in the dead hour of the night, witli the intent-of stealing said goods, broke and entered said house, pushed against said string, and thereby caused the gun to go off and himself to be shot and killed, &c. To this defence the plaintiff demurred, and the court having overruled the demurrer and given judgment for the defendant, the plaintiff prosecutes tiiis writ of error.
For the defendant, it is contended, that his act is only to he viewed in this suit, with an eye to the civil code, and the killing of the slave to be treated no otherwise than the killing of an ox under similar
For the plaintiff it is contended, first, that the use of means calculated to produce death, by whatever indirection they may have been used, areas obnoxious to the censure of the law, and render the user as culpable, as if they had been used directly and immediately by himself.
Second, That the theft or robbery attempted by the slave, if perpetrated, would have been no felony, but only a misdemeanor, punishable by stripes alone.
Third, That the law does not allow the taking of human life, except for the necessary prevention of a crime, which, if committed, would be punished by the law, with death.
The first of these propositions may well be conceded. The second is undeniably correct. By the 19th section of an act of 1802, II. Dig. 1160, it is declared that a slave convicted of any other offence than murder, arson, rape, robbery from the person, and burglary, shall be sentenced to receive any number of lashes not exceeding thirty-nine. rI he third section of an act of 1806, Dig. 1161, declares in substance, that any offence in a slave, for which stripes are imposed as the only punishment, shall be deemed a misdemeanor only.
In support of the third proposition, tve are referred to the language used by judge Blackstone on this subject, IV Com. 181 After citing the instances in which the law justifies killing to prevent the perpetration of various dimes, he alludes to another which he makes no doubt may be equally resisted bv (he death of the unnatural aggressor. “For, says lie, the one uniform principle that runs through our own and all other laws, seems to he this, that where a crime which in itself is capital, is endeavored to he committed by force, it is lawful to repel that force, by the death of the party attempting.” “The law of England, like that of every other well regulated community, is too tender of the public peace, too careful of the lives of the subjects, to suffer, with impunity, any crime to be prevented by death, unless the same, if committed, would also be punished by death.” If the law be as thus laid down, it is difficult, if not impossible to escape the conclusion, that the act of the defendant in this case, was illegal, and he consequently responsible for the value of the slave. For as the crime would not, if committed, have been punished with death, it would, according to this rule, have been unlawful to kill him.
But we cannot accede to the correctness of this rule, no authority is cited in support of it, and we believe none, sufficient to sustain it, can he found. Its recognition, would singularly and essentially curtail the right of self defence in this state, as here-, tofore supposed to he and long acted upon, with the approbation of all the virtue arid intelligence of the community. In such a community, where the rights of seif defence are so dearly cherished and so well maintained by the sentiments of our population, it would not merely be with reluctance, but extreme regret that we should acknowledge ourselves compelled to adopt or follow so restricted a rule. The result would be, in t.he present state < f our criminal code, that neither highway robbery, rape, or a variety of other equally atlrocious crimes could be lawfully prevented by the death of the aggressor. Indeed, we apprehend that it would l>£ as futile, as unwise, for even the legislature to an
We have not had access to Bracton, to see the citation made from him by Blackstone, but have met with the following quotation from him in a note to Hale, 488. Qui latronem Occident, noclurnum vel diuiurnum, non tenelur. si alilerpericulum evaden non possit lenelum tamen siposdt.
It is evident'froin the language used hy Hale, P. C. 484 to 489, that he placed justifiable homicide upon the ground of the prevention of a felony and not the prevention of a crime punished hy death. After stating a case of justifiable homicide in defence of a third person, he says, “and the reason seems to be because every man is bound to use all possible lawful means to prevent a felony.” Again — “In case of a felony attempted, as well as of a felony committed, every man is thus far an officer, that at least in killing the attempter in case of necessity, puts him in the condition of se defendendo, in defending his neighbor.” — ‘“now concerning felonies, as there-
He further says that the statute, XXIV Hen. S c ■5, was but declarative of the-law as it stood before, and to remove a doubt, and puts the killing a robber in or near a highway, &>:. in the same condition with one that intends to rob or murder in the dwelling house, and exempts both from forfeiture.
Foster, p. 273, says, ua party may repel force by force, in defence of his person, habitation, or property, against one who*manifestly intendeth andendeavoreth, by violence or surprise, to commit a known felony on either.”
From these authorities, and what we deem to be the reason of the law, it would seem, that the right-of killing to prevent the perpetration of crime, depends more upon the character of the crime, and* the time and manner of its attempted perpetration, than upon the degree of punishment attached to it by law, or upon the tact oi its being designated ia the penal code as a felony or not. A- name canineither add to, or detract from, the moral qualitiesof a. crime, and in the eye of reason and justice, the intrinsic nature of tiie offence, together with the time and manner of its attempted commission, must ever test the legality of the means to be resorted to for its prevention. It is not absolutely necessary, however, for the purposes of .this case, to-do more than place it on the ground of the prevention of a felony. For, though the robbery attempted in this case would only have been a misdemeanor in a slave, yet, in a white person, it would have been a felony; and, therefore, though according to strict law, it may not have been a justifiable means of prevention as against a slave, such being known to be the character of the thief, yet, in the absence of such know
The right of punishing crimes, and the infraction of individual rights, may well be presumed to be surrendered bv every man to the whole community, when he enters into civil society. The well being of society requires it. Not so, however, as to the right of defence. Its possession and exercise are still necessary to individual security, and not incompatible with the public good. It is true society may curtail this right, and no doubt does restrain its exercise in many important particulars. But it is emphatically a right brought by the individual with him into society, and not derived from it. He consequently retains the plenary right, except so far as it has been restrained by the laws of society. The extent of the right of defence is necessarily undefined by the law of nature. Its only limit is necessity. “ That law,” says Rutherforth, “allows us to defend our persons or property, and such a general allowance implies, that no particular means of defence are prescribed to us. Whatever means are necessary, must he lawful, because it would be absurd to suppose that the law of nature allows of defence, and yet foibids us, at the same time, to do what is necessary for this purpose. It follows, that he who attempts to injure us, gives us an indefinite right over his person, or a right to make use
It is not necessary in this case, nor shall we, therefore, attempt the difficult and delicate task of defining how far, and in what instances, the law of society has restrained the right of defence for the security of the lives of our citizens from the wanton cruelty arrd guileful malice of those who might otherwise indulge their evil passions under the guise of protecting property. We shall content otirselvcs with saying the restraint does not, and.should not, extend to this case. That where a person has vain-able property in a strong warehouse, well.secured by locks anti doors, that he may, as an- additional security at night, erect a spring gun which can only he made to explode by entering the house. That the defence used by the defendant was, thorefoje, lawftd, and the calamity which ensued, ascribable to the slave’s own act. We know of no process by which the defendant could have obtained (lie protection of the law against an unknown tliief. The law did not require him to hire a guard for its protection. Neither was he hound to leave it to the spoliation of nocturnal depredators. The time and circumstances constituted a case of necessity that legitimated the means resorted to.
We have been unable to find any case in which this question has come before any of the courts in America, or any English court, prior to the revolution. But in the case of Halt vs. Wilkes, Iff B. and A. 304, it was decided by the court of King’s Bench, that a person might lawfully place loaded spring guns in enclosed grounds to prevent depredations ; and the plaintiff in that case who had received severe bodily injury, whilst gathering nuts, from a gun so placed, was non-suited. It is true, the plaintiff had notice of the gun’s being in the woods, hut that seems not to have been treated as a controlling circumstance, for it is conceded by the court, that if the setting of the guns had been unlawful, notice to the plaintiff would not have exempted the defendant from liability- We are not called on now to give our dissent or assent to the principle ruled in this case, but mention it for the double purpose of shewing the extent to which such means have been permitted in England for the protection of property,' and of authorizing a suggestion of tue propriety of legisla
The judnment must be affirmed, with costs.