Extract from State v. Patterson, 45 Vt. 308 (Vermont Supreme Court, January Term 1873)
It is not deemed needful for the purposes of this case, with reference to its future prosecution, to discuss specifically any other subject, except that of the dwelling-house being one's castle, as bearing upon his right to kill or to use deadly weapons in defense of it. This is presented in the 3d request in behalf of the respondent, which is, in the language used by HOLROYD, J., in charging the jury in Meade's case, infra, viz.: “The making of an attack upon a dwelling, and especially in the night, the law regards as equivalent to an assault on a man's person, for a man's house is his castle.” The purpose of this request seems to have been, to justify the killing with the gun, as a lawful mode and means of defending the castle, as well as the person within it. Looking to the state of the evidence, it is not altogether obvious what there was in the case to warrant its being claimed that the respondent killed Flanders as a means of defending himself or his castle. 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 weapon as a means of forceful resistance to meet and repel an assault on his house-whatever 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.
Nevertheless, the point was made by said 3d request. It was indicated in the charge that the case, State v. Hooker, 17 Vt. 670, was invoked in support of it, and it is cited in this court for the same purpose. That case professes to decide only the question involved in and presented by it, viz., whether it was criminal under the statute for the respondent to resist an officer in the service of civil process within his dwelling-house, such officer having unlawfully broken into the house for the purpose of making such service. The language of the opinion is to be interpreted with reference to the case and the question. That case in no respect involved the subject of the use of a deadly weapon with fatal effect in defense of the castle; and it is not to be supposed that the judge who drew up the opinion was undertaking to discuss or propound the law of that subject.
To come, then, to the subject as it is involved in this case under said 3d request. In Foster's Crown Law, 319, it is said, “The books say that a man's house is his castle for safety and repose to himself and family.” In Cook's case, Cro. Car. 537, an officer, with a capias ad satisfaciendum [basically an arrest warrant], went with other officers, for the purpose of executing the same, to the dwelling-house of the respondent, and, finding him within, demanded of him to open the door and suffer them to enter. He commanded them to depart, telling them they should not enter. Thereupon, they broke a window, and afterwards went to the door of the house and offered to force it open, and broke one of the hinges; whereupon Cook discharged his musket at the deceased and hit him, and he died of the wound. “After argument at the bar, all the justices, seriatim, delivered their opinions, that it was not murder, but manslaughter; the bailiff was slain in doing an unlawful act in seeking to break open the house to execute process for a subject, and every one is to defend his own house. Yet they all held it was manslaughter; for he might have resisted him without killing him; and when he saw and shot voluntarily at him, it was manslaughter.”
That was one of the earliest cases, and was fully considered; and it has been cited in all the books on criminal law since its decision in 1640 (15th Car. I.),-with some incorrectness of statement, in 1 Hale P. C. 458, and in other books adopting Hale's text. This is in some measure rectified by a remark, 1 East P. C. 321-322. See, also, Roscoe Cr. Ev. 758; also 1 Bishop Cr. L. § 858, n. 2 (5th ed.) It is to be specially noticed that what made it manslaughter was, that, in order to defend his castle, it was not necessary to kill the bailiff.
The same idea of necessity, in order to relieve the killing from being manslaughter, exists in the case of defending one's person, as stated in Hawkins P. C. 113: “Homicide se defendendo [self defense] seems to be when one who has no other possible means of preserving his life from one who combats him on a sudden quarrel, or of defending his person from one who attempts to beat him (especially if such attempt be made upon him in his own house), kills the person by whom he is reduced to such an inevitable necessity.”
In a learned note in 2 Archb. Cr. L. 225, it is said: “But when it is said that a man may rightfully use as much force as is necessary for the protection of his person and property, it should be recollected that this rule is subject to this most important modification,-that he shall not, except in extreme cases, endanger human life, or great bodily harm. **** You can only kill to save life or limb, or prevent a great crime, or to accomplish a necessary public duty. It is, therefore, clear, that 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.”
Harcourt's case, 5 Eliz. stated 1 Hale P. C. 485-6, shows that this doctrine is not new. “Harcourt, being in possession of a house by title, as it seems, A. endeavored to enter, and shot an arrow at them within the house, and Harcourt, from within, shot an arrow at those that would have entered, and killed one of the company. This was ruled manslaughter, and it was not se defendendo, because there was no danger of his life from them without.” What was thus ruled is the key to the author's meaning in the next following paragraph of his book, which see.
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.
This is the meaning of what was said by HOLROYD, J., in charging the jury in Meade's case, 1 Lewin C. C. 184. Some exasperated sailors had ducked Meade, and were in the act of throwing him into the sea, when he was rescued by the police. As the gang were leaving, they threatened that they would come by night and pull his house down. In the middle of the night a great number came, making menacing demonstrations. Meade, under an apprehension, as he alleged, that his life and property were in danger, fired a pistol, by which one of the party was killed. Meade was indicted for murder. Upon that state of facts and evidence, the judge said to the jury: “A civil trespass will not excuse the firing of a pistol at a trespasser in sudden resentment or anger, &c. * * But a man is not authorized to fire a pistol on every intrusion or invasion of his house. He ought, if he has reasonable opportunity, to endeavor to remove him without having recourse to the last extremity. But the making an attack upon a dwelling, and especially at night, the law regards as equivalent to an assault on a man's person; for a man's house is his castle; and, therefore, in the eye of the law, it is equivalent to an assault; but no words or singing are equivalent to an assault; nor will they authorize an assault in return, &c. * * There are cases where a person in heat of blood kills another, that the law does not deem it murder, but lowers the offence to manslaughter; as, where a party coming up by way of making an attack, and without there being any previous apprehension of danger, the party attacked, instead of having recourse to a more reasonable and less violent mode of averting it, having an opportunity so to do, fires on the impulse of the moment. In the present case, if you are of opinion that the prisoner was really attacked, and that the party were on the point of breaking in, or likely to do so, and execute the threats of the day before, he, perhaps, was justified in firing as he did. If you are of opinion that he intended to fire over and frighten, then the case is one of manslaughter and not of self-defence.”
The sense in which one's house is his castle, and he may defend himself within it, is shown by what is said in 1 Hale P. C. 486, that “in case he is assaulted in his own house, he need not flee as far as he can, as in other cases of se defendendo, for he hath the protection of his house to excuse him from flying, as that would be to give up the protection of his house to his adversary by flight.” Now, set over against that what is said in 1 Russell, 662, and the true distinction between the house as property, on the one hand, and as castle for protection, on the other, is very palpable, viz: “If A. in defence of his house, kill B., a trespasser, who endeavors to make an entry upon it, it is, at least, common manslaughter, unless, indeed, there were danger of life;” p. 663. “But where the trespass is barely against the property of another, the law does not admit the force of the provocation as sufficient to warrant the owner in making use of a deadly or dangerous weapon; more particularly if such violence is used after the party has desisted from the trespass.” In Carrol v. The State, 24 Ala. 36, it is said: “The owner may resist the entry into his house, but he has no right to kill, unless it be rendered necessary in order to prevent a felonious destruction of his property, or to defend himself against loss of life, or great bodily harm.” Cited 2 Bishop Crim. Law, § 707, 5th ed. That case impresses us differently from what it does the learned author, as indicated by his remark prefacing the citation.
As developing and illustrating the prevailing idea of the law as to what will justify homicide se et sua defendendo [in defense of himself and his own], it is not without interest upon the point now under consideration, to advert to what is said upon the general subject. In McNally, 562, it is said: “The injured party may repel force by force in defence of his person, habitation, or property, against one who manifestly intendeth and endeavoreth by violence or surprise to commit a known felony upon either. In these cases he is not obliged to retreat, but may pursue his adversary until he findeth himself out of danger; and if in such conflict he happeneth to kill, such killing is justifiable.” Wharton incorporates this into his work as text. The same is found in the older books. 1 Hale, 485-6; also in Foster's Crown Law, 273; 1 Russell, 667; and in other books, ad lib. But, to apprehend this in its true scope and application, it is important to have in mind what is said in 1 Russell, 668: “The rule clearly extends only to cases of felony; for if one come to beat another, or take his goods merely as a trespasser, though the owner may justify the beating of him so far as to make him desist, yet if he kill him, it is manslaughter. *** No assault, however violent, will justify killing the assailant under a plea of necessity, unless there be a manifestation of felonious intent.” See Archb. Crim. Law, 221, cited 9 C. & P. 22.
This covers the cases of statutory justification of homicide, both under our own, and under the English, statutes, and, in principle and in reason, it is in keeping with the common law as to se defendendo, in defining the scope of which in this respect, it is well laid down that, “before a person can avail himself of the defence that he used a weapon in defence of his life, it must appear that that defence was necessary to protect his own life, or to protect himself from such serious bodily harm as would give him reasonable apprehension that his life was in immediate danger.” 1 Russell, 661.
The law of the subject, as given in the books thus cited and referred to, seems to have been adequately apprehended by the court, and, so far as we can judge from what is shown by the record before us, it was not administered erroneously or improperly in the trial, as against the respondent.
