10 N.Y. Crim. 107 | NY | 1892
Lead Opinion
The defendants were indicted and convicted, under section 654 of the Penal Code, for the unlawful and willful destruction of property. The property destroyed was a row-boat, belonging to one Davis. There was no dispute as to the willful destruction of the property, and it occurred under these circumstances. Its owner had placed it upon the waters of a mill-pond, which was indisputably part of the property of one Edward Kane. Davis had been more than once notified by Kane that he must remove the boat; but he refused to do so. Kane then caused it to be removed from the waters of his pond and to be placed upon Davis' land, which bordered upon this pond. Davis then put it back in the water. Kane again removed it and placed it on Davis' land; but Davis put it back and this time chained it to a tree, to prevent its further removal by Kane. Kane, having gone to Europe about the time, had placed his son, one of these defendants, in the possession and care of his property; informing him of his efforts to keep Davis from putting his boat on the pond, and instructing him to see to it that Davis did not further trespass on their property. When Davis persisted in using the pond and put his boat back on its waters, the defendant Kane, as he testified, believing in his right and advised thereto by his lawyer, with the aid of the other defendant, broke up the boat. It was done openly and without any conflict, or riotous disturbance. Thereupon this indictment followed. The trial judge having charged the jury, as a proposition of law, that the destruction of the boat was unlawful, upon the conclusion of his charge, the defendants requested of him to charge that "if Lewis S. Davis persisted in putting his boat upon the pond, against the wishes of H.E. Kane, he had a right to destroy the boat, if necessary, in defense of his possession." *114
"THE COURT. — I decline to charge that as applicable to this case, because I have already charged you, gentlemen, that under the circumstances of this case there was nothing justifying the defendant in destroying this boat as he did. Of course, as a general proposition in the defense of property, if a horse or any animal is trespassing upon your property, you have a right to use such force as may be necessary. So if a man attacks you upon your property, you have a right to defend your possession and use such means as are necessary to its defense. But I instruct you upon the evidence existing in this case, that the boat being there in the pond, even conceding the title of the pond to have been in Kane, that he had no right to actually break up and destroy the boat and no right of property applicable to him justified him in so doing."
To this charge and to the refusal to charge as requested, the defendants excepted, and their exception presents the one question for our consideration upon this appeal.
I presume that the trial judge, in so charging, must have interpreted the provisions of section 654 of the Penal Code to exclude any excusable cause for the destruction of property. I think he erred in his ruling and in charging as he did. Under this section, in order to establish the offense charged, the elements of an unlawful and of a willful destruction of property must exist and be proved. Though a destruction of property may have been willful, whether it was unlawful may be a question which should be decided by the jury, upon the evidence showing the cause or motive. If it was intended that the act alone should constitute the crime, irrespective of the motive, then I do not think the legislature would, in enacting the section, have used the expression "unlawfully." It would have been sufficient to have said "willfully." To the presence of the word "unlawfully" in the section, I think we must give some importance and significance. It may be conceded that the intention, with which the offense charged in the indictment was committed, is not material to be proved by the people. They may rest upon giving proof of the destruction by the defendant of the property, as constituting an offense; *115 but it is perfectly competent for the accused to give evidence in proof of a justification for his act, and then it becomes a question for the jury to decide, upon the evidence, whether there was excusable cause for the destruction of the property, or not. The intent to destroy undoubtedly existed; but if the jury should believe it to be shown by the evidence that the act was in defense of the possession of property, the criminality was lacking which constitutes the punishable offense against the people. That is claimed by the appellants to have been the case here, and there certainly was evidence, upon which the jury might have found that they did the act in defense of the possession of property. I cannot think that there is such a difference in principle between a case of assault and battery in defense of one's property and that of a destruction of property in the same cause, as that in the latter case it is always unlawful, and, therefore, punishable by the statute, while in the former it may be justifiable.
It has been frequently held that one who is owner and in possession of premises has a right to defend their possession, and that defense may justify an assault and battery. (Harrington v. People, 6 Barb. 607, 612; Filkins v.People,
In this case, it was shown by the evidence that Kane's efforts to prevent Davis from using his property, by placing his boat upon it, had been persistently opposed and defied. If it had been so flagrant a case as actually to obstruct a proper and rightful enjoyment and use of his property, was Kane bound to submit to it, or to litigate the matter in the courts? I cannot think so. That, in the particular case, the trespass or obstruction may not have been such as to occasion the greatest inconvenience to the property owner, is not a consideration which affects the question of the right. The ownership and possession of property confer a certain right to defend that possession, and I am unable to perceive wherein lies the essential difference in principle between a defense of it, which results in an assault and battery, and that which results in the destruction of the means used to invade and interfere with *116 that possession. Whether the act done, in either case, was really in defense of one's possession, its character and notice present a question which should be submitted to the jury.
In refusing to allow the jury to take into consideration the circumstances of this case, and in instructing them that upon the evidence the defendant had no right to destroy the boat, and that no right of property justified him in so doing, I think the trial judge seriously erred, and that, therefore, there should be a reversal of the judgment below and a new trial ordered.
Dissenting Opinion
The defendants were indicted, under section 654 of the Penal Code, for unlawfully and willfully destroying a small boat which belonged to Lewis S. Davis. They pleaded not guilty, and the indictment was brought to trial in the Court of Sessions of Suffolk county.
The proof showed, without any dispute, that Davis had placed the boat upon a pond of water belonging to the father of one of the defendants; that the owner of the pond had repeatedly requested Davis to keep the boat therefrom; that he persisted in placing it there, and after the owner of the pond had several times removed it therefrom, he gave instructions to the defendants to destroy it, and they did destroy it by knocking it to pieces with an axe, in the absence of Davis. The defendants were found guilty and fined, and they now claim that the facts found did not show them to be guilty of any crime.
The main contention of the defendants is that they acted under the advice of counsel; that they had a right to destroy the boat and to protect the pond by its removal therefrom in that way, and that they believed they had a right to destroy the boat, and, therefore, had no guilty intent and could not be convicted of any crime.
The indictment describes the alleged crime in the language of the statute. The offense is precisely defined in the statute, and all it was necessary for the people to prove was that the defendants had unlawfully and willfully destroyed the boat. *117
It was shown that they did it unlawfully, as they did it without any right or any authority of law. It was shown that they did it willfully, as they did it intentionally and purposely. A guilty or wicked intention, which is the essence of many crimes, although not of all, was not made an element of this crime, and it cannot be implied as a necessary ingredient of the crime from the words "unlawfully and willfully" used in the statute. (Anderson v. How,
There was no error in the rulings of the trial judge during the trial or in his charge to the jury, and the judgment should be affirmed.
All concur with GRAY, J., except EARL, Ch. J., and O'BRIEN, J., dissenting, and MAYNARD, J., taking no part.
Judgment reversed. *118
