fully caused that injury, he is guilty of manslaughter. Wild's Case. 2 Lewin 214, B. 347, Ke. 116, 1 L. 111.

Compare S. v. Middleham, § 69.

(Mich. Sup. Ct., 1860.) Danger Real or Apparent. Appellant was convicted of manslaughter, and assigns error in the instructions to the jury, concerning justification. Appellant was a fisherman by occupation, and Plant, Robilliard, and Blanchard combined with express intention to do him personal violence. Numerous unprovoked assaults by them on him on the night of the homicide and before are recited in the report. On this night neither appellant nor his family went to bed for fear of violence. One assault on the house was made; and the arm of appellant's wife seized through a doorway slightly opened, and squeezed till she fainted. Being unable to get in, they went away for a while and appellant went to a brotherin-law's house and got a double-barrelled shot-gun loaded with pigeon shot. Shortly, the attackers were heard returning and saying they were going to find appellant and whip him or have the soul out of him. They 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 hallooing as if he was in pain. Pond cried out loudly, "Leave, or I'll shoot." The noise continuing, he gave the same warning again, and in a few seconds shot off one barrel of the gun. Blanchard was found dead the next morning. Pond took immediate steps to surrender himself to justice. CAMPBELL, J. * * 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 insure 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. Were a man charged with crime to be held to a knowledge of all facts precisely as they are, there could be few cases in which the most innocent intention or honest zeal could justify or excuse homicide. The jury, by a careful sifting of witnesses on both sides,

in cool blood, and aided by the comments of court and counsel, may arrive at a tolerably just conclusion on the circumstances of an assault. But the prisoner, who is to justify himself, can hardly be expected to be entirely cool in a deadly affray, or in all cases to have great courage or large intellect; and cannot well see the true meaning of all that occurs at the time; while he can know nothing whatever concerning what has occurred elsewhere, or concerning the designs of his assailants, any more than can be inferred from appearances. And the law, while it will not generally excuse mistakes of law (because every man is bound to know that), does not hold men responsible for a knowledge of facts unless their ignorance arises from fault or negligence.

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 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. 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. Reversed. Pond v. P.,

* * *

8 Mich. 150, Kn. 191, 1 L. 814.

*

Apparent danger is sufficient to justify striking in defense: Shorter v. P., § 69; Campbell v. P., § 69.

(Vt. Sup. Ct., 1873.) Same. Indictment for manslaughter. Plea, not guilty. The evidence showed that deceased and another came drunk, after the family were in bed, to the tenement where defendant and family lived, insisted on coming in to talk, became violent and threatened to break in. Defendant shot through the window and killed him. Verdict, guilty. BARRETT, J. * It was claimed in behalf of the prosecution, and the evidence given in that behalf showed that the gun was not fired at Flanders as a measure of force, to repel and prevent him from breaking into the house. Moreover, in the exceptions it is said: "The respondent testified that he fired to the ground, and the object in firing was not to hit them, but to scare them away." The respondent seems not to have regarded it a case, or a conjuncture, in which it was needful or expedient to use a deadly weagon as a means of forceful resistance to meet and repel an assault on his housewhatever such assault in fact was-or to protect himself from any threatened or feared assault on his person. The gun, loaded with powder alone, would have served all the needs of the occasion, and of the exigency which the respondent supposed then to exist and

to press upon him. If one man deliberately kills another to prevent a mere trespass on his property-whether that trespass could or could not otherwise be prevented he is guilty of murder. If, indeed, he had at first used moderate force, and this had been returned with such violence that his own life was endangered, and then he killed from necessity, it would have been excusable homicide. Not because he could take life to save his property, but he might take the life of the assailant to save his own. The idea that is embodied in the expression that a man's house is his castle, is not that it is his property, and, as such, he has the right to defend and protect it by other and more extreme means than he might lawfully use to defend and protect his shop, his office, or his barn. The sense in which the house has a peculiar immunity is that it is sacred for the protection of his person and of his family. An assault on the house can be regarded as an assault on the person only in case the purpose of such assault be injury to the person of the occupant or members of his family, and, in order to accomplish this, the assailant attacks the castle in order to reach the inmates. In this view it is said and settled, that, in such case, the inmate need not flee from his house in order to escape from being injured by the assailant, but he may meet him at the threshold, and prevent him from breaking in by any means rendered necessary by the exigency; and upon the same ground and reason as one may defend himself from peril of life, or great bodily harm, by means fatal to the assailant if rendered necessary by the exigency of the assault. * If it were to be assumed that the defense might legitimately claim that there was an assault on the house, with the intent either of taking the life of the respondent or doing to him great bodily harm, the respondent would be justified in using a deadly weapon, if it should be necessary in order to prevent the perpetration of such crime, or if, under the existing circumstances attending the emergency, the respondent had reason to believe, and was warranted in believing, and, in fact, did believe, that it was necessary in order to prevent the commission of such crime. In case the purpose of the assailant was to take life, or inflict great bodily harm, and the object of his attack (if there was such attack) upon the house was to get access to the inmate occupying the same, for such purpose, the same means might lawfully be used to prevent him from breaking in as might be used to prevent him from making the harmful assault upon the person, in case the parties were met face to face in any other place. In either case the point of justification is that such use of fatal means was necessary in order to the rightful effectual protection of the respondent, or his family, from the threatened or impending peril. New trial granted. S. v. Patterson, 45

Vt. 308, 12 Am. Rep. 200-n, B. 348.

*

(Ky. Ct. of App., 1887.) Defending Wife in House. To defend his own wife and himself from a murderous assault, committed in

defendant's house by deceased and his wife, defendant shot deceased with a pistol. On trial for murder, the court, in instructing on the law of self-defense, made it a condition of the right to take the life of deceased that defendant had no other safe means of escape from the danger. Held erroneous and misleading, as it implied a duty of defendant to leave his own dwelling-house. Defendant had a right to remain in his house, and defend himself and its inmates. Estep v. C., 86 Ky. 39, 4 S. W. 820, 9 Am. St. Rep. 260.

(Ky. Ct. of App., 1887.) Right to Defend Guest. A party of armed men marched on the house of accused in night-time, and broke in for the purpose of arresting an inmate, whom they charged with the commission of a misdemeanor, but for whose arrest they had no warrant. Held, that the accused and his guest had the right to resist the breaking in by every means in their power, even to the taking of life, and, the assault being made by a combined party, he might disable or kill one aiding and assisting, as well as those actually breaking in; and the party, after breaking in, drawing off for a time, the owner of the house was not obliged to retreat from his dwelling, but had still the right to fire on any member of the party, if he believed, from all the circumstances, the attack was to be renewed. Wright v. C., 85 Ky. 123, 2 S. W. 904.

$71. "In Defense of Property."

(Conn. Sup. Ct. of Errors, 1863.) Homicide to Defend ShopSpring Gun. Information for nuisance in maintaining spring guns in a blacksmith shop near the highway, as a protection against thieves, to the terror of the inhabitants, who might be injured while passing, by an accidental discharge. The guns were inside the shop, which was lathed, plastered, and double boarded on the outside; and some of them were aimed obliquely toward the highway. The court held that a man may not do indirectly what he may not do directly; and as a man may not kill a thief to prevent larceny from a shop at night, the maintenance of a spring gun for that purpose would not be justifiable at common law. The court said the right to take life to prevent crime did not extend to any case in which the crime could otherwise be prevented, and was confined to felonies committed by violence or surprise, such as murder, robbery, burglary, arson, or breaking into a house in the daytime to rape, rob, or the like. As to whether the changed conditions of modern life, when the greatest values are kept in banks and storehouses away from the residence, instead of in the castle, as of old, and the ease and rapidity of travel and conversion of goods now, may not call for a more liberal defense of property, the court left undecided; but in this case the prisoner was discharged because there was not

sufficient proof of danger to the public. S. v. Moore, 31 Conn. 479, F. 215, 1 L. 891, 83 Am. Dec. 159-n.

(Mass. Sup. Judicial Ct., 1889.) Recaption of Money. Defendant having bought goods, a dispute arose as to the price, and defendant placed $20 and the goods side by side, and told the seller to choose, whereupon the latter took the money, and said, "You owe me $1.55." Defendant then, after demanding the money back, threw the seller down, and choked him till he gave up a pocketbook containing money. Defendant being indicted for robbery, his attorney claimed. justification. The court stated that defendant was not justified in assaulting to get his own money, and that, if defendant choked and otherwise assaulted the seller, he was guilty, though the sole motive was to get by force money which he believed to be his own. HOLMES. J. Since Mitchelman, of course, whatever the sum due him, had no right to that particular money except on the conditions on which it was offered (C. v. Stebbins, 8 Gray 492, [854]), he took the money wrongfully from the possession of the defendant, or the jury might have found that he did, whether the true view be that the defendant did not give up possession, or that it was obtained from him by Mitchelman's fraud. It is settled by ancient and modern authority that, under such circumstances, a man may defend or regain his momentarily interrupted possession by the use of reasonable force, short of wounding or the employment of a dangerous weapon. C. v. Lynn, 123 Mass. 218; C. v. Kennard, 8 Pick. 133; Anderson v. S., 6 Baxter 608; S. v. Elliot, 11 N. H. 540, 545; R. v. Milton, Moody & Malk. 107; Y. B. 9 Edw. IV. 28, pl. 42; 19 Hen. VI. 31, pl. 59; 21 Hen. VI. 27, pl. 9. See Seaman v. Cuppledick, Owen, 150; Taylor v. Markham, Cro. Jac. 224, Yelv. 157, and 1 Brownl. 215; Shingleton v. Smith, Lutw. 1481, 1483; 2 Inst. 316; Finch, Law, 203; 2 Hawk. P. C. c. 60, § 23; 3 Bl. Com. 121. To this extent the right to protect one's possession has been regarded as an extension of the right to protect one's person, with which it is generally mentioned. Baldwin v. Hayden, 6 Conn. 453; Y. B. 19 Hen. VI. 31, pl. 59; Rogers v. Spence, 13 M. & W. 571, 581; 2 Hawk. P. C. c. 60, § 23; 3 Bl. Com. 120, 131. If the force used by the defendant was excessive, the jury would have been warranted in finding him guilty. Whether it was excessive or not was a question for them; the judge could not rule that it was not, as matter of law. It will be seen that our decision is irrespective of the defendant's belief as to what he had a right to do. Exceptions sustained. C. v. Donahue, 148 Mass. 529, 20 N. E. 171, 12 Am. St. Rep. 591, 2 L. R. A. 623, B. 353, C. 157.

*

No right to kill sneak thief, even to recapture property: Storey v. P., § 68.

(Ga. Sup. Ct., 1893.) Recaption of Meat. Defendant was convicted of murder; and on new trial being denied, brought error. Deceased drove up behind defendant's wagon on the way home