8 Mich. 150 | Mich. | 1860
The defense of this case, as presented in the court below, was based upon a claim that the accused was only chargeable with excusable or justifiable homicide. And as most of the questions raised before us involve the consideration of the same subject, it may be necessary to examine somewhat carefully into the rules which divide homicide into its various heads, and determine the character of each act of slaying.
The facts are claimed, by the counsel for the accused, to have a tendency to establish the act as innocent on various grounds: first, as excusable in defence of himself or his servant; second, as justifiable in repelling a riotous attack, and third, as justifiable in resisting a felony.
The first inquiry necessary, is one which applies equally to all of the grounds of defense; and is whether the necessity of taking life, in order to excuse or justify the slayer, must be one arising out of actual and imminent danger; or whether he may act-upon a belief, arising from appearances which give him reasonable cause for it, that the danger is actual and imminent, although he may turn out to be mistaken.
Human life is. not to be lightly disregarded, and the law will not permit it to be destroyed unless upon urgent occasion. But the rules which make it excusable or justifiable to destroy it under some circumstances, are really meant to ensure its general protection. They are designed to prevent reckless and wicked men from assailing peaceable members of society, by exposing them to the danger of fatal resistance at the hands of those whom they wantonly attack, and put in peril or fear of great injury or death. And such rules, in order to be of any value, must be in some reasonable degree accommodated to human character and necessity. They should not be allowed to entrap or mislead those whose misfortunes compel a resort to them.
A criminal intent is a necessary ingredient of every crime. And therefore it is well remarked by Baron Parke in Regina v. Thurborn, 2 C. & K. 832, that “as the rule of law, founded on justice and reason, is that actus non facit reum nisi mens sit rea, the guilt of the accused must depend on the circumstances as they appear to him.” And Mr. Bishop has expressed the same rule very clearly, by declaring that “in all cases where a party, without fault or carelessness, is misled concerning facts, and acts as he would be justified in doing if the facts were what he believed them to be, he is legally as he is morally innocent : — 1 Bish. Cr. L. § 242.
These principles have always been recognized, and are sustained by numerous authorities; but they need no vindication, and a further citation would • add nothing to the clear and intelligible statements already referred to. And from an examination of some of the charges given, we
In order to determine the materiality of the questions of law raised, it becomes necessary to determine under what circumstances homicide is excusable or justifiable. In doing this, it will be proper -to advert merely to those instances which may bo regarded as coming nearest to the circumstances of the case before us. The other cases we are not called upon to define or consider; and what we say is to be interpreted by the case before us.
The only variety of excusable homicide (as contra-distinguished from justifiable homicide at common law) which we need advert to, is that which is technically termed homicide se aid saa defendendo, and which embraces the defense of one’s own life, or that of his family, relatives or dependants, within those relations whore the law permits the defense of others as of one’s self. Practically, so far as punishment is concerned, there is no distinction with us between excusable and justifiable homicide; but' a resort to common law distinctions will nevertheless be convenient, in order to illustrate the difference between the various instances of homicide in repelling assaults, according as they are or are not felonious. Homicide se defendendo was excusable at common law when it occurred in a sudden affray, or in repelling an attack not made with a felonious design. According to Mr. Hawkins, it was excusable and not justifiable because, occurring in a quarrel, it generally assumed some fault on both sides : — Hawk. P. C., B. 1 Ch. 28, § 24. In these cases, the original assault not being with a feloni
There are many curious and nice questions concerning the extent of the right of self defence, where the assailed party is in fault. But as neither Pond nor Cull were in any way to blame in bringing about the events of Friday night, which led to the shooting of Blanchard, it is not
A man is not, however, obliged to retreat if assaulted in his dwelling, but may use such means as are absolutely necessary to repel the assailant from his house, or to prevent his forcible entry, even to the taking of life. But here, as im the other cases, he must not take life if he can otherwise arrest or repel the assailant: — 2 Bish. Cr. L. § 569; 3 Greenl. Ev. §117; Hawk. P. C., B. 1 Ch. 28, §23. Where the assault or breaking is felonious, the homicide becomes justifiable, and not merely excusable.
The essential difference between excusable and justifiable homicide rests not merely in the fact that at common law the one was felonious, although j>ardoned of course, while the other was innocent. Those only were justifiable homicides where the slayer was regarded as promoting justice, and performing a public duty; and the question of personal danger did not necessarily arise, although it does generally.
It is held to be the duty of every one who sees a felony attempted by violence, to prevent it if possible; and in the performance of this duty, .which is an active one, there is a legal right to use all necessary means to make the resistance effectual. Where a felonious act is not of a violent or forcible character, as in picking pockets, and crimes partaking of fraud rather than force, there is no necessity, and therefore no justification, for homicide, unless possibly in some exceptional cases. The rule extends only to cases of felony; and in those it is lawful to resist force by force. If any forcible attempt is made, with a felonious intent against person or property, the person resisting is not obliged to retreat, but may pursue
It has also been laid down by the authorities, that private persons may forcibly interfere to suppress a riot or resist rioters, although a riot is not necessarily a felony in itself. This is owing to the nature of the offense, which requires the combination of three or more persons, assembling together and actually accomplishing some object calculated to terrify others. Private persons who can not otherwise suppress them, or defend themselves from them, may justify homicide in killing them, as it is their right and duty to aid in preserving the |>eace. And perhaps no case can arise where a felonious attempt by a single individual will be as likely to inspire terror as .the turbulent acts of rioters. And a very limited knowledge of human nature is sufficient to inform us, that when men combine to do an injury to the person or property of others, of such a nature as to involve excitement and provoke resistance, they are not likely to stop at half way measures, or to scan closely the dividing line between felonies and misdemeanors. But when the act they meditate is in itself felonious, and of a violent character, it is manifest that strong measures will generally be required for their effectual suppression; and a man who defends himself, his family or his property, under such circumstances, is justified in making as complete a defense as is necessary.
When we look at the facts of this case, we find very-strong circumstances to bring the, act of Pond within each of the defenses we have referred to. Without stopping to recapitulate the testimony in full or in detail, we have these leading features presented: Without any cause or provocation given by Pond, we find Plant, Robilliard and
The party then went back to^ Pond’s, and asked admittance to search for him. His wife refused to let them in. They immediately went to the net-house, where Cull was asleep. Plant seized Cull, and pulled him out of bed on the floor, and began choking him. Cull demanded who it was, but received no answer. Blanchard and Robilliard had commenced tearing down the boards. Pond went to the door and hallooed, “Who is tearing down my net-house ?” to which there was no answer. The voices of a woman and child were heard crying, and the woman’s voice was heard twice to cry out “ for God’s sake!” Cull’s voice was also heard from the net - house, not speaking, but
A question was raised whether the net-house was a dwelling or a part of the dwelling of Pond. We think it was. It was near the other building, and was used not only for preserving the nets which were used in the ordinary occupation of Pond, as a fisherman, but also as a permanent dormitory for his servants. It was held in The People v. Taylor, 2 Mich. 250, that a fence was not necessary to include buildings within the curtilage, if within a space no larger than that usually occupied for the purposes of the dwelling and customary out - buildings. It is a very common thing in the newer parts of the country, where, from the nature of the materials used, a large build, ing is not readily made, 'to have two or more small buildings, with one or two rooms in each, instead of a large building divided into apartments.
We can not, upon a consideration of the facts manifest ; from the bill of exceptions, regard the charges asked by/ the defense as abstract or inapplicable to the case. It was for the jury to consider the whole chain of proof; but if they believed the evidence as spread out upon the , case, we feel constrained to say that there are very few \ of the precedents which have shown stronger grounds of ! justification than those which are found here. Instead'1 of reckless ferocity, the facts display a very commendable ; moderation.
Apart from its character as a dwelling, which was denied by the court below, the attack upon the net-house for the_ purpose of destroying it, was a violent and forcible felony. And the fact that it is a statutory and not common law felony, does not, in our view, change its character. Rape and many other of the most atrocious felonious assaults, are statutory felonies only, and yet no
It is claimed by the prisoner’s counsel, that we are authorized to pronounce upon the case the judgment which the facts warrant. Had the facts spread out in the bill of exceptions been found as a special verdict by the jury, this would be true. But as the case stands, we can only consider them as bearing upon the instructions given or refused. The errors being in the rulings, and not in the record outside of the bill of exceptions, we can do nothing more, in reversing the judgment,£than to order a new trial. The District Judge has ruled upon the law questions in such a way as to present them all fairly as questions not before decided in this state. We think there was error in requiring the actual instead of apparent and reasonably _¡ founded causes of apprehension of injury; in holding that the protection of the net-house could not be made by using a dangerous weapon; and that the conduct of the assailing party was not felonious; and also in using language calculated to mislead the jury upon the means and extent of resistance justifiable in resisting a felony.
We do not deem it necessary to pass upon the minor points, as we do not suppose the authorities will deem it important to proceed further, unless the facts are very different from those presented.
The judgment below must be reversed .and a new trial granted.