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[Cite as State v. Moore, 31 Conn. 479 (1863).]

The State vs. James M. Moore.

The mere act of setting spring guns on one's own premises for their protection is not unlawful in itself, but the person doing it may be responsible for injuries caused thereby to individuals, and may be indictable for the erection of a nuisance if the public are subjected by it to any danger.

What a man may not do directly he may not do indirectly. A man may not therefore place instruments of destruction for the protection of his property where he would not be authorized to take life with his own hand for its protection.

The right to take life in the defense of property, as well as of person and habitation, is a natural right, but the law limits its exercise to the prevention of forcible and atrocious crimes, of which burglary is one.

In the absence of any statutory provision making it burglary to break and enter a shop in the night season with intent to steal, and by the early strict rules of the common law, a man may not take life in prevention of such a crime.

The habits of the people and other circumstances have however so greatly changed since this ancient rule was established, that it is very questionable whether, in view of the large amount of property now kept in warehouses, banks and other outbuildings, it should not be held lawful to place instruments of destruction for the protection of such property.

Breaking and entering a shop in the night season with intent to steal, is by our (p.480)law burglary, and the placing of spring guns in such a shop for its defense, would be justified if a burglar should be killed by them.

The guns would however have constituted a nuisance if they caused actual danger to passers by in the street.

But the annoyance to the public must be of a real and substantial nature.

Where, upon a prosecution for a nuisance, the jury, by a special verdict, found that the defendant placed spring guns in his shop for its protection against burglars; that the guns were loaded with large shot and so placed as to discharge their contents obliquely towards the highway, the traveled path of which was about a rod and a half from the shop; that the shop was lathed and plastered on the inside and double boarded on the outside, but that it was possible that scattering shot might pass through the boards at places where by reason of the cracks between them there was not a double thickness of boards; and that the traveling public were annoyed and apprehensive of harm from the guns; it was held that it did not appear that there was such real and substantial danger to the public as to warrant a conviction.

Information for a nuisance by the defendant in placing spring guns in his shop for its protection against burglars, by reason of which the public were endangered in passing by upon the adjacent highway. The jury returned the following special verdict.

In this case the jury find the following facts:--

The defendant owned and occupied a blacksmith's shop adjoining a public highway in Colebrook, about one and a half rods from the traveled path. It had been entered by burglars, and subsequent efforts made to enter it again. The defendant, for the purpose of protecting his premises, placed at divers times three loaded guns, loaded with powder and large shot, when leaving and locking the shop at night, with strings attached to the triggers, and extending to other objects, with intent that persons who should enter or attempt to enter said shop in the night season should fire said guns and kill or injure themselves thereby. One or more of said guns were pointed obliquely towards the said highway. The shop was lathed and plastered on the inside, and double boarded on the outside, but it was possible that scattering shot might pass out through the places where the boards by reason of cracks between them did not make a double thickness of boarding. The traveling public having occasion to pass upon said highway were annoyed and alarmed, and apprehensive of danger (p.481)from an accidental discharge of said guns, and some of them remonstrated with the defendant. The defendant gave notice of the placing of said guns to the public. The defendant had no intent to endanger or annoy the public on said highway, but acted with the sole purpose and intent of protecting his property in said shop from burglars, supposing he had a lawful right so to do; and upon the commencement of this prosecution he desisted from placing said guns as before. And thereupon the jury find, that if upon the facts so found a verdict and judgment of guilty can be legally rendered, the defendant is guilty; but if said facts will not authorize in law a verdict and judgment of guilty, then we find the defendant not guilty, and submit the question as a question of law to the court.

The questions of law arising on this verdict were reserved for the advice of this court.

Sedgwick, state attorney, and Goodwin, for the state, cited 1 Hale P. C., 473; Foster C. L., 291; 2 Bishop Crim. Law, 558, 597; 1 Russell on Crimes, 519, 545; 3 Chitty Crim. Law, 627, 641, 647; 4 Bla. Com., 167, 181; State v. Morgan, 3 Ired. (Law,) 186.

Hall, with whom was Hitchcock, for the defendant, cited 1 East P. C., 219, 271; 1 Hawk. P. C., 108; Foster C. L., 273; 1 Russell on Crimes, 550; 1 Hale P. C., 445, 481, 484; 2 Swift Dig., 284; Johnson v. Patterson, 14 Conn., 1; Sarch v. Blackburn, Mood. & Malk., 502; Blackman v. Simmons, 3 Car. & P., 138; Brock v. Copeland, 1 Esp., 203; Ilott v. Wilkes, 3 Barn. & Ald., 304; U. States v. Wiltberger, 3 Wash. C. C., 515, 521; Gray v. Coombs, 7 J. J. Marsh., 478.

Butler, J. It is not easy to see how the mere act of setting spring guns on his own premises by the defendant can be holden unlawful in itself. That such an act could not be so holden seems to have been admitted in the leading case of Ilott v. Wilkes, 3 Barn. & Ald., 304. But it may nevertheless be true that he may be responsible for any injury occasioned thereby to individuals; and be indictable for the (p.482)erection of a nuisance, if the public were thereby subjected to any danger and consequent annoyance.

What a man may not do directly, he may not do indirectly. If by the rules of the common law the defendant could not, if present, have discharged the guns which he placed in his shop by his own direct agency, against a thief, who had broken and entered for the purpose of stealing, he certainly could not place and leave them so that the thief, if he entered, would discharge them against himself. This principle was also admitted by the court of King's Bench in Ilott v. Wilkes, but the action was trespass, and the judges held that the rule did not apply where the trespasser had notice that the engine was so placed and the danger existed. But the fallacy of their reasoning, in that respect, was clearly shown in this court by Judge Sherman, in Johnson v. Patterson, 14 Conn., 1; and it is settled law here, that if the wrong or guilt of the trespasser or thief is not such as to justify the injury, if inflicted directly, it can not be justified because inflicted indirectly, and by the assisting agency of the wrong doer.

The first point made by the defendant in this case must therefore turn on the question, whether a man may take the life of any one who attempts to commit a felony, and therefore of a thief who attempts to break and enter a shop or out-house in the night season with intent to steal. In this case, from the view we take of the nature of the offense charged against the prisoner, a determination of the question is not necessary, but as it has been raised and fully argued, and is of great practical interest, we will consider and settle it.

It is clear that in the absence of any statutory provision making the offense of breaking and entering a shop in the night season burglary, and by the early and strict rules of the common law, a man may not take life in prevention of such a crime. Those rules recognize a right in every man to defend his property, as well as person and habitation, by taking the life of the aggressor, as a natural right; but they also limit and restrain the exercise of that right to the prevention of a certain class of forcible and atrocious crimes, of which breaking a shop in the night season is not one at common law.(p.483)

The class of crimes in prevention of which a man may, if necessary, exercise his natural right to repel force by force to the taking of the life of the aggressor, are felonies which are committed by violence and surprise; such as murder, robbery, burglary, arson, breaking a house in the day time with intent to rob, sodomy and rape. Blackstone says: "Such homicide as is committed for the prevention of any forcible and atrocious crime is justifiable by the law of nature; and also by the law of England, as it stood as early as the time of Bracton;" and he specifies, as of that character, those which we have enumerated. No others were specified by Hale or Hawkins, who wrote before him on the Pleas of the Crown, or have been specified by any writer since. Mr. East, in his Pleas of the Crown, and Mr. Foster, from whom Judge Swift quotes the law on this subject in his Digest, (vol. 2, page 283,) state the rule thus: "A man may repel force by force in defense of his person, habitation or property against one who manifestly intends or endeavors by violence and surprise to commit a known felony, such as murder, rape, robbery, arson, burglary and the like, upon either. In these cases he is not obliged to retreat, but may pursue his adversary until he has secured himself from all danger, and if he kill him in so doing it will be justifiable self defense." 1 East P. C., 271; Foster C. L., 259. Neither of these writers specifies any other crimes than those enumerated, and both except from the list simple theft, and even an attempt to pick a pocket. No writer has enumerated breaking and entering a shop as one of that class of crimes. If it was technically burglary at common law, it would be included, but it is not. "To break and enter a shop, not parcel of the mansion house, in which the shop keeper never lodges, but only works or trades there in the day time, is not burglary, but only larceny." 1 Hale P. C., 557, 558, cited in 1 Tomlin's Law Dict., 278. Nor have we been referred to any case in England where it has been holden that life might be taken in defense of property in a shop; nor any in this country, with the single exception of Gray v. Coombs, 7 J. J. Marshall, 478; and in that case the court did not hold that the offense was burglary, or within the class of (p.484)felonies to prevent which life may be taken by strict letter of the common law; but rather that "the time and circumstances constituted a case of necessity, that legitimated the means resorted to." We are satisfied, therefore, that by the strict letter of the common law a man may not take life in defense of property in a shop, and therefore may not justify a homicide committed by placing spring guns therein.

But these rules of the common law were originally founded on reasons and adapted to circumstances which do not now exist, and it is a question of great importance and deserving serious consideration, whether that change of circumstances has not created a necessity for an extension of a right to take life in defense of property in a shop. The offense is a felony, and has all the elements of a felony by violence and surprise that burglary has, except that it is presumptively committed when no person is present, and unaccompanied by danger of personal injury to the owner or his family or guests. But that, if a reason originally for the distinction between a mansion house and a shop, is now to some extent practically disregarded, for burglary may be committed in a barn, wood house, or even smoke house and hen roost, though separate structures, and unconnected with the dwelling house, and uninclosed by a common fence, if in close proximity, and "in their nature serviceable in respect to the abode;" and in such cases no danger of personal collision exists. 1 Bishop Cr. L., sec. 171. So doubtless, in the olden times, all the valuables were contained in the castle (dwelling-house and curtilage) for protection, and shops were few and did not require such protection. Now our banks, stores, warehouses, manufactories and shops contain in large quantities our most valuable property and goods, and those which are the most readily transported, and least easily identified and recovered. And it certainly seems very absurd to permit a man to protect his smoke house and hen roost, by taking the life of the nocturnal thief, and deny him the right to defend a bank, or a store full of costly jewelry or valuable silks, by the same means. We are aware that writers on the criminal law deem certainty of the utmost importance, and that out of the various (p.485)ancient common law distinctions grow general rules which give that certainty, and operate to establish practical justice; and that changes and innovations should be made by legislation rather than judicial decision; and we admit the force of their reasoning. Still, it is a question whether the great quantity and value of property contained in what the law terms out-houses, the ease with which it may be transported, the great extent of our country and the means of escape by railroads, and the opportunity to dispose of stolen property and enjoy its fruits undetected in distant states and cities, and the fact that property so held is exposed, not only to the ordinary number of criminals incident to our own population, but to great numbers who escape or are induced to emigrate from other countries, do not constitute the offense an aggravated and exceptional one which in the absence of legislation should be holden to be such an atrocious felony as to justify the use of spring guns for its prevention. The court so held in the case cited from the Kentucky Reports; and an obvious leaning that way is observable in other cases in this country.

The taking of life by spring guns or otherwise is confessedly lawful, by the common law, and now in England by statute, to prevent a burglary; and the breaking and entry in the night season of "a shop in which goods, wares and merchandize are deposited," was by express statutory provision made burglary, identical in character and punishment with burglary in a dwelling-house, at an early period in our history. In the edition of the statutes published in 1808, at page 297, there is a statute entitled, "An act for the punishment of certain atrocious crimes and felonies," and the first clause of the statute is in these words; viz., "that whosoever shall commit burglary by breaking up any dwelling-house, or shop wherein goods, wares or merchandize are deposited," &c. The compiler in a note informs us that the clause was originally passed in 1650, and it is therefore among the earliest acts of the state; and in the case of The State v. Carrier, 5 Day, 131, decided in 1811, the fact that the statute had "extended the crime of burglary to the breaking and entering of a shop," was admitted by all the judges. And burglary, whether in a (p.486)dwelling-house or shop under the ancient statute, was punishable for the third offense by death.

In the act referred to, as found in the edition of 1808, several offenses for which the same punishment was provided were embraced in a single section. In 1821 the revisors separated them into distinct sections, and in so doing placed burglary in one section and the breaking and entry of a shop in another, adding to the latter the words, "store, warehouse and out-house, whether parcel of any mansion house or not," but provided the same punishment, viz., three years' imprisonment, for each. It is apparent from the words, "whether parcel of any mansion house or not," and the similarity of the punishment, that no change in the character of the offense was intended, and such has been the understanding of the profession and the courts. In the revision of Swift's Digest by Judge Dutton, the offense is treated as burglary, (vol. 2, page 330,) and in our forms the word "burglariously" is used in informations upon the statute. In the act of 1830 respecting crimes, the punishment of burglary was increased to a maximum of five years, and the breaking and entering a shop to four years, but that distinction in the punishment has not been regarded as changing the nature of the offense. In 1843, in the case of The State v. Lewis, 16 Conn., 32, it was distinctly recognized and treated as burglary.

Breaking and entering the shop in question in the night season with intent to steal therefrom would have been by our law burglary; and as by the settled rules of law life may be taken to prevent a burglary, the placing of the guns in the shop was an act which the defendant could have justified, if the death of a burglar had been thereby occasioned.

We are also satisfied that if the guns had actually been dangerous to the public who had occasion to pass the highway they would have constituted a nuisance. The statute relative to nuisances in highways, embraces specifically objects placed or acts done within its limits. But other acts committed or omitted upon the adjoining land by the owner thereof, which endanger and annoy travelers, are nuisances at common law. An overhanging tree whose limbs actually interfere with the (p.487)use of the way, or are rotten and liable to fall, is a nuisance, and the limbs may be lopped. So it is a nuisance to suffer the highway to be incommoded or travelers endangered by adjoining foul ditches, or to permit a dangerous and ruinous house to stand upon it which is liable to fall into it and injure passengers, or to keep gunpowder in dangerous quantities, near a public street, carelessly; (People v. Sands, 1 Johns., 78; Anon. 12 Mod., 342; Myers v. Malcolm, 6 Hill, 292;) or to do any other act outside of the highway, which endangers the public who have occasion to pass over it, and who are entitled to the same protection from danger and annoyance while there as when at their respective homes.

Doubtless the annoyance must be of a real and substantial nature, for "the fears of mankind though they may be reasonable ones will not create a nuisance." 3 Atk., 750. But placing a loaded gun so as to range over a highway, cocked, and with strings attached to the trigger, so that it may be discharged by a cat or rat, or any other object coming in contact with the string, and sufficiently near and unprotected to inflict injury if any one should then be within its range upon the highway, creates a real and substantial danger, to which passengers on a highway should not be subjected.

We are not however satisfied that the facts found by the special verdict will authorize a judgment against the prisoner. It is found that scattering shot might pass between the cracks of one thickness of the boarding, and through the other to the outside. But it is not found that they would pass through with sufficient force to inflict injury, or even to cross the intervening space between the shop and highway. It is not therefore sufficiently found that the apprehended danger to the public was real and substantial, and judgment must be rendered for the defendant.

in this opinion the other judges concurred.