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Vol. II.)

ALDRICH v. WRIGHT.

[No. 2.

fendant proved that the dog was vicious, ferocious, and unruly, and had come upon his premises and abstracted some fish from the wall of his house where they had been hung to dry. The defendant set a trap at that place, and the dog coming again was caught, and shot by the defendant. The court instructed the jury if they believed the evidence given by the defendant, it was not of that nature which authorized him to kill the dog. This instruction was held erroneous.

Parrott v. Hartsfield, 4 Dev. & Bat. 110, was trespass for killing a dog. The defendant proved that the dog had killed some of his sheep in his pasture; the defendant, being notified of the fact, went in pursuit with a gun; the dog escaped at that time, but returned about two hours afterwards to the premises of the defendant, and was near the pasture fence where the sheep were, when the defendant saw him and immediately shot him. The plaintiff insisted that in order to support the plea of justification, the defendant must prove that he could not otherwise preserve his sheep than by killing the dog, or that the dog was shot in the very act of killing the sheep. The court instructed the jury that the defendant was justified in killing the dog, if the evidence satisfied them that the dog had destroyed the sheep, and had returned two hours thereafter, and was on the premises of the defendant near his pasture, under circumstances calculated to produce a belief, in an ordinary man, that the dog was lurking about the inclosure to commence again the work of destruction, and was killed under a reasonable apprehension that it was necessary, to prevent a repetition of the mischief. The defendant had a verdict and judgment, and, on appeal, the instructions were held correct, Gaston, J., delivering the opinion of the court. It had happened that the dog killed some of the defendant's sheep : but that was merely a piece of evidence bearing upon the question of reasonable apprehension, which was a question of fact for the jury: if he had been interrupted before overtaking the objects of his pursuit, as the minks were in the present case, the pursuit would have been evidence on which the jury might have found danger, or a reasonable apprehension of it. * Perry v. Phipps, 10 Ired. 259, was trespass for killing a dog. The defendant, going into the plaintiff's yard, would probably have been bitten by the plaintiff's dog if the dog had not been driven off by the plaintiff's family ; while the dog was retreating, and at the distance of ten steps from the defendant, the defendant shot him. The court instructed the jury that they might infer that the defendant did not shoot the dog to protect himself; and it was held that the circumstances were properly left to the jury as evidence on which they might find that the defendant did not act on the defensive.

Morse v. Nixon, 6 Jones (N. C.), 293, was trespass for killing a hog. For the purpose of showing that it had the reputation of a chicken-eating hog, the defendant proved that it had killed one chicken, and attempted to kill another. It does not appear whose chickens they were, or when they were attacked; it is to be inferred from the decision that they were not the defendant's. There was evidence that the hog, when killed, was about seventy-five yards from the public road, near the fence of the defendant, where his chickens were in the habit of running. There was no evidence that the hog, at the time it was killed, was in the act of doing

chicken bathing was property. The

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ALDRICH v. WRIGHT.

(No. 2. any injury to the defendant or his property. The court charged the jury, that if they believed the hog was of a predatory character, and had the character of a chicken-eating hog, then they would find for the defendant, as any man had a right to abate a public nuisance. These instructions were held erroneous. And they clearly were erroneous in holding, as matter of law, that a hog of a predatory and chicken-eating character was a public nuisance which any man had a right to abate, without regard to the reasonable necessity of the particular case. The decision recognizes a distinction between the reasonable necessity of killing a hog, and the reasonable necessity of killing a dog.

It has been held that a dangerous dog running at large is a common enemy and a nuisance, and that his destruction is justifiable, though not necessary to prevent any mischief impending at the moment. Putnam v. Payne, 13 Johns. 312 ; Hinckley v. Emerson, 4 Cow. 351; Loomis v. Terry, 17 Wend. 500; Maxwell v. Palmerton, 21 Wend. 407; Dunlap v. Snyder, 17 Barb. 566; Brown v. Carpenter, 26 Vt. 638; Bowers v. Fitzrandolph, Addison, 215; King v. Kline, 7 Pa. St. 318; Dodson v. Mock, 4 Dev. & Bat. 146; Perry v. Phipps, 10 Ired. 261; Woolf v. Chalker, 31 Conn. 121, 128, 130 ; Parker v. Mise, 27 Ala. 483. This class of cases, understood as maintaining the right of destruction when its exercise is a reasonably necessary protection of the persons or property of those claiming the right, or of the persons or property of others 1 for whom they are, in law or in fact, authorized to act — 3 Bl. Com. 5; 1 Bishop Cr. L. secs. 716–721, 851, 877; Fuller v. Bean, 30 N. H. 181; Graves v. Shattuck, 35 N. H. 269; A. M. Co. v. Goodale, 46 N. H. 56; Brown v. Perkins, 12 Gray 89; Morse v. Nixon, 6 Jones (N. C.), 295 — seems to be unobjectionable. In dealing with the right of defence, courts have fallen into some conflict and confusion, as courts always will when they inadvertently turn a broad question of fact into a narrow question of law. It is easy to abandon the comprehensive rule of the reasonable necessity of the case, which is the whole law of defence; but it is not so easy to invade the province of the jury, and establish a legal test of reasonable necessity exactly adapted to the peculiar circumstances of every case that can arise.

The tests of reasonable necessity, which have been applied to cases of defensive homicide, cannot be applied to the defensive killing of minks. The authorities are, that a man may oppose a deadly resistance to a felonious attack, but not to a mere trespass (a trespass against a man's castle 2 being sometimes excepted; 3 Gr. Ev. sec. 117; 1 East P. C. ch. 5, sec. 56; Com. v. Drew, 4 Mass. 391, 396; Ros. Cr. Ev. 770; 1 Bishop Cr. L. sec. 858, 5th ed.). A man, in defence of his possession of land or goods, “ may justify an assault and battery; but he cannot justify either mayheming or wounding, or menace of life and member; and so note a diversity between the defence of his person and the defence of his possession or goods.” 2 Inst. 316. Where the trespass is barely against property, “ the law does not admit the force of the provocation sufficient to warrant the owner in making use of any deadly or dangerous weapon.” 1 East P. C. ch. 5, sec. 56. But a man, upon whom or whose property another manifestly

1 Horrigan & Thompson Cases on Self-De- ? Horrigan & Thompson Cases on Self-Defence, 738–757. — REPORTER.

fence, 795–862. — REPORTER.

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ALDRICH v. WRIGHT.

[No. 2

intends to commit a known felony by violence or surprise, is not obliged to retreat; on the contrary, he may pursue his adversary, and kill him if necessary to prevent the felony. 1 East P. C. ch. 5, secs. 44, 45; 3 Gr. Ev. sec. 115; 4 Bl. Com. 180; Fost. Cr. L. 274.

* Where a crime, in itself capital, is endeavored to be committed by force, it is lawful to repel that force by the death of the party attempting ;” but “the law of England” will not “suffer with impunity any crime to be prevented by death, unless the same, if committed, would also be punished by death.” 4 Bl. Com. 181, 182 ; 1 Bishop Cr. L. sec. 849, 5th ed. The rule generally laid down is, that a deadly resistance is lawful only against an apparent forcible felony, — the idea of felony being “ so generally connected with that of capital punishment that we find it hard to separate them.” 4 Bl. Com. 98. “ It is a melancholy truth, that among the variety of actions which men are daily liable to commit, no less than a hundred and sixty have been declared by act of parliament to be felonies without benefit of clergy; or, in other words, to be worthy of instant death.” 4 Bl. Com. 18. So long a list might perhaps be made to enumerate all, and even more than all, the attacks which it would ordinarily be reasonably necessary to resist unto the death of the attacking party; but such a list, attached as a limitation to the doctrine of defence, would be an attempt to turn the fact of reasonable necessity into an absolute and arbitrary schedule of legal rules that would be likely to operate very unjustly in some cases, because of the difficulty of foreseeing and providing for the infinite variety of circumstances and the illimitable diversity of considerations that might be involved in so broad a question as the kind, degree, and time of defence reasonably necessary for person or property. If the rule stated by Blackstone were adopted, and defensive homicide were allowed only to prevent a capital crime, it would not be allowed in any case in this state at the present time, except when necessary to prevent murder in the first degree. Such is not understood to be the law. Gray v. Coombs, 7 J. J. Marsh. 478. If the old English list of one hundred and sixty capital crimes were the legal catalogue of attacks to which, when violent, a deadly resistance might be made, the law would be very different from what it is now generally supposed to be..

If, according to the general rule of the common law authorities, it may be reasonably necessary, for the reason stated by Blackstone, to kill a man only to prevent his committing a capital crime, how can the rule survive the reason on which it was founded ? If, by some inscrutable process, it does survive, — if the distinction between a felony and a mere trespass is still a test, — this defendant, although he might kill a man if necessary to prevent his forcibly committing the felony of stealing a goose ; 4 BI. Com. 237; Lyford v. Farrar, 31 N. H. 314; yet could not kill him to prevent his stealing things of far greater value, being real or savoring of the realty, or bonds, bills, notes, or other evidences of or securities for debts or other choses in action; 4 Bl. Com. 232, 234; 1 Hawk. P. C. ch. 33, secs. 21, 22; or committing a vast amount of malicious mischief. 4 Bl. Com. 243; Com. v. Keith, 8 Met. 531. If such recondite, arbitrary, and irrational tests are to be employed, the right of defence, guaranteed by the Constitution as a natural, essential, and inherent right, is a very unnatural and dangerous one; for, in a great number of cases, however

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(No. 2.

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ALDRICH v. Wright.

reasonably necessary a deadly defence might be, no one, without a lawyer's technical knowledge, could make such a defence without running great risk of the gallows. But, suppose the defendant had been a profound lawyer; had known perfectly well that it might be reasonably necessary, by homicide, to prevent an apparent, violent felony, but not a trespass or misdemeanor ; had thoroughly understood the general rule, and all the qualifications, exceptions, and nice distinctions to be found in the books on the subject; and had been able to reconcile or otherwise dispose of conflicting precedents and opinions, and accurately to remember and exactly apply all the authorities, at an instant's notice, in excitement and disturbance, - his learning in that branch of the law would have availed him nothing in the adjustment of his défensive measures to the reasonable necessity of the case presented by these minks, but would, if relied upon, have greatly increased his embarrassment. The distinction between felony and trespass attempted by the aggressor, which has been supposed to be in general a test of the right to kill him, like all other tests devised in former times to illustrate the predominance of the sanctity of human life among the considerations of reasonable necessity, is inapplicable to the present case. .

One who finds game, that is, wild animals fit for food, on his own ground, cannot justify pursuing them into the land of another. Deane v. Clayton, 7 Taunt. 489. But in Mitten v. Faudrye, Popham, 161, Doddridge, J., said : “ In the time of Chief Justice Popham, this case was adjudged in this court : trespass was brought for hunting, and breaking of hedges; and the case was, that a man started a fox in his own land, and his hounds pursued him into another man's lands, and it was holden that he may hunt and pursue him into any man's land, because a fox is a noysome creature to the commonwealth.” And other authorities hold that a man may justify an entry and a reasonable trespass upon another's land for killing mischievous vermin, that is, wild animals not fit for food. Gundry v. Feltham, 1 D. & E. 334; Nicholas v. Badger, cited in 3 D. & E. 259, note a; Bac. Abr. title Game. Wild ducks being valuable, an action lies for frightening them from a decoy pond ; and grouse being valuable, an action lies for frightening them away from a man's land Carrington v. Taylor, 11 East, 571; Keeble v. Hickeringill, 11 East, 574, note ; 11 Mod. 74; 3 Salk. 9; Holt, 14, 17, 19; Ibbotsow v. Peat, 3 H. & C. 644. But rooks being worthless and destructive, it has been held that no action lies for frightening them away from a man's premises. Hannam v. Mockett, 2 B. & C. 934. In the latter case, Bayley, J., delivering the opinion of the court, said : “ In considering a claim of this kind, the nature and properties of the birds are not immaterial. The law makes a distinction between animals fitted for food, and those which are not ; between those which are destructive to private property, and those which are not; between those which have received protection by common law or by statute, and those which have not. It is not alleged in this declaration that these rooks were fit for food ; and we know, in fact, that they are not generally so used.” Whether all the English authorities on the subject are or are not in every particular sound, and adapted to the condition of this country, they at least tend to show that (with perhaps some exceptions not pertinent to the present inquiry) mischievous vermin, alive and free

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C. 644. Mod. wylor, 11 for friglim fromne. Wil

Vol. II.)

ALDRICH v. WRIGHT.

[No. 2.

(Iowa), 106, Norton v. Ladd, ale P. C. 511, stame, which, tho.pl

including all classes of noxious wild animals, – beasts, birds, insects, and reptiles, — not fit for food, are worthless in the estimation of the common law.

“Larceny cannot be committed in some things, whereof the owner may have a lawful property, and such whereupon he may maintain an action of trespass, in respect of the baseness of their nature, as mastiffs, spaniels, greyhounds, bloodhounds; or of some things wild by nature, yet reclaimed by art or industry, as bears, foxes, ferrets, &c., or their whelps, or calves, because, though reclaimed, they serve not for food but pleasure, and so differ from pheasants, swans, &c., made tame, which, though wild by nature, serve for food.” 1 Hale P. C. 511, 512; Rex v. Searing, Russ. & Ry. 350; Norton v. Ladd, 5 N. H. 203; Warren v. State, 1 Greene (Iowa), 106, 111. “Of all valuable domestic animals, as horses and other beasts of draught, and of all animals domitae naturae, which serve for food, as neat or other cattle, swine, poultry, and the like, .... larceny may be committed ; and also of the flesh of such as are either domitae or ferae naturae, when killed. As to those animals which do not serve for food, and which therefore the law holds to have no intrinsic value, as dogs of all sorts, and other creatures kept for whim and pleasure, though a man may have a base property therein and maintain a civil action for the loss of them, yet they are not of such estimation as that the crime of stealing them amounts to larceny.” 4 Bl. Com. 236, *235; 2 Ib. 393.

“The taking . . . . of any creatures whatsoever which are domitae naturae, and fit for food, as ducks, hens, geese, .... may be felony;" but subjects of larceny " ought not to be things of a base nature, as dogs, cats, bears, foxes, monkeys, ferrets, and the like, which, howsoever they may be valued by the owner, shall never be so highly regarded by the law, that for their sakes a man shall die.” 1 Hawk. P. C. ch. 33, secs. 23, 28. For the sake of vermin, though tame and in some sense valuable, a man shall not die. Capital punishment for stealing a domesticated goose, but not for stealing a domesticated mink, — such is the discriminating discipline of the common law. Human life of inestimable value ; domesticated animals, valuable for food or for practical use, far less worthy than the human species ; domesticated vermin less worthy still; mischievous wild vermin, a public nuisance, — such is the common law appraisal. Under this system, the malicious destroyer of human life is liable to indictment and death, but not to a civil action, for ancient reasons difficult to be now discovered, possibly of theological origin; Exodus xxi. 12, 18, 19, 22, 23 ; Leviticus xxiv. 17, 18; Numbers xxxv. 31; possibly derived from the difference between human life, which no man owns, and other life which may be the subject of property; Wyatt v. Williams, 43 N. H. 102; the malicious destroyer of property in domesticated brutish life is liable to an action for the damage to property, but not to indictment; the felonious taker of another's domesticated animals, of the class recognized by the law as fit for food or otherwise useful or profitable, is liable to an indictment and an action; the taker of another's domesticated animals of the vermin class is liable to an action, but not to indictment; the taker on another's land of wild animals alive and free is liable, for the taking, neither to an action nor an indictment.

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