
    The People of The State of New York, Respondent, v. Henry E. Kane et al., Appellants.
    (Argued January 21, 1892;
    decided February 9, 1892.)
    The ownership and possession of property confers a right to defend that possession, and in such defense the destruction of the means used to invade and interfere with that possession may be lawful.
    In order to establish an offense under the provision of the Penal Code (§ 654), subjecting to the punishment prescribed “a person who unlawfully and willfully destroys or injures any real or personal property of another,” an unlawful as well as a willful destruction of property must he proved.
    Conceding that the intent with which the offense charged in an indictment under the act is not material to be proved by the people and that they may rest upon proof of the willful destruction of the property, it is competent for the defendant to give evidence in proof of a justification of his act.
    Where, therefore, the evidence on the part of defendant tends to show that the destruction was in defense of his ownership and possession, the question as to whether there was excusable cause for the destruction is one of fact for the jury, and in case of a finding that there was such a cause, the criminality is lacking which constitutes the offense.
    Upon trial of an indictment under said provision, it appeared that D. placed a boat upon the water of a pond belonging to K., the father of one of defendants and refused to remove it when required so to do by the owner of the pond, and several times when the latter removed it, replaced it and finally chained it to a tree to prevent further removal. K. placed his son in charge of the pond during his absence, instructing him to i re-vent D. from trespassing thereon. The son, being adviseil by his attorney that he had a right so to do, upon D’s persisting in keeping the 1 r; t on the pond, with the aid of the other defendant destroyed it. The ■ rrt charged that the destruction of the-boat was unlawful and ref; n to charge that if D. persisted in putting his boat on the pond again;; die wishes ’of K. the latter had a right to destroy the boat if necessar in defense of his possession. £Teld(Earl, Oh. J., and O’Brien, J., dissenting), error.
    Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made July 2, 1891, which affirmed a judgment convicting the defendants of unlawfully and willfully destroying personal property, entered upon a verdict of the Court of Special Sessions of Suffolk County.
    The facts, so far as material, are stated in the opinion.
    
      Livingston Smith for appellants.
    The indictment does not state facts sufficient to constitute a crime. (Kilpatrick v. People, 5 Den. 277; People v. Smith, 5 Cow. 258; Penal Code, § 726; Code Crim. Pro. § 331; Anderson v. How, 116 N. Y. 336.) Davis was a wrong-doer and has no redress, because the law refuses to punish defendants to encourage him to continue his malicious trespasses. (Coats v. Darley, 2 N. Y. 517-520.) Davis trespassed upon the pond of Mr. Kane through malice, and with an intent to injure and annoy him, and was, therefore, guilty of a misdemeanor. (Code Crim. Pro. §§ 56, 80; People v. Smith, 5 Cow. 268 ; Harrington v. People, 6 Barb. 607; Parson v. Brown, 15 id. 590; Corey v. People, 45 id. 262; Wood v. Phillips, 43 N. Y. 152.) If Edward Kane had the right to defend his possession, his son and tenant also had the right. (Corey v. People, 45 Barb. 262.) The defendants’ intention in destroying the boat was merely to defend Ms possession, and they are, therefore, guilty of no crime. (Filkins v. People, 69 N. Y. 101; Bliss v. Johnson, 73 id. 529.) The defendant destroyed the boat with the lawful intention of defending his possession. The jury should have determined two principal questions of fact: Was there a wrongful act committed ? If so, was it committed with a criminal intent ? They should have found affirmatively as to both questions to warrant a verdict of guilty. (Bliss v. Johnson, 73 N. Y. 534; People v. Flack, 125 id. 324.) Davis was, under the circumstances, the aggressor and a malicious trespasser, and Ms acts were calculated to lead to a breach of the peace. (Code Crim. Pro. § 56; People v. Smith, 5 Cow. 258; 4 Black. Comm. 243.)
    
      Benjamin H. Reeve for respondent.
    The facts stated in the indictment constitute the crime of malicious mischief and destruction of property. (Penal Code, § 654.) . The court had jurisdiction. (Penal Code, §§ 5, 654; Code Grim. Pro. § 56.) Comments by the trial judge on the testimony, so long as he leaves the question of fact to the jury, are not the subject of legal exception. (People v. Carpenter, 4 N. Y. Crim. Rep. 39; People v. O'Neil, 6 id. 274; People v. Druse, 5 id. 10.)
   Gray, J.

The defendants were indicted and convicted, under section 654 of the Penal Code, for the unlawful and willful destruction of property. The property destroyed was a row-boat, belonging to one Davis. There was no dispute as to the willful destruction of the property, and it occurred under these circumstances. Its owner had placed it upon the waters of a mill-pond, which was indisputably part of the property of one Edward Kane. Davis had been more than once notified by Kane that he must remove the boat; but he refused to do so. Kane then caused it to be removed from the waters of his pond and to be placed upon Davis’ land, which bordered upon this pond. Davis then put it back in the water. Kane again removed it and placed it on Davis’ land; but Davis put it back and this time chained it to a tree, to prevent its further removal by Kane. Kane, having gone to Europe about the time, had placed his son, one of these defendants, in the possession and care of his property; informing him of his efforts to keep Davis from putting his boat on the pond, and instructing him to see to it that Davis did not further trespass on their property. When Davis persisted in using the pond and put his boat back on its waters, the defendant Kane, as he testified, believing in his right and advised thereto by his lawyer, with the aid of the other defendant, broke up the boat. It was done openly and without any conflict, or riotous disturbance. Thereupon this indictment followed. The trial judge having charged the jury, as a proposition of law, that the destruction of the boat was unlawful, upon the conclusion of his charge, the defendants requested of him to charge that “if Lewis S. Davis persisted in putting his boat upon the pond, against the wishes of H. E. Kane, he had a right to destroy the boat, if necessary, in defense of his possession.”

“ The Court.— I decline to charge that as applicable to this ease; because I have already charged you, gentlemen, that under the circumstances of this case there was nothing justifying the defendant in destroying this boat as he did. Of course, as a general proposition in the defense of property, if a horse or any animal is trespassing upon your property, you have a right to use such force as may be necessary. So if a man attacks you upon your property, you have a right to defend your possession and use such means as are necessary to its defense. But I instruct you upon the evidence existing in this case, that the boat being there in the pond, even conceding the title of the pond to have been in Kane, that he had no right to actually break up and destroy the boat and no right of property applicable to him justified him in so doing.”

To this charge and to the refusal to charge as requested, the defendants, excepted, and their exception presents the one question for- our- consideration upon this appeal.

I presume- that the trial judge, in so charging, must have interpreted the- provisions of section 654 of the Penal Code to exclude' any excusable cause for the destruction of property. I think he erred in his • ruling and in charging as he did. Under-this section, in order to establish the offense charged, the elements of an unlawful and of a willful destruction of property must exist and be proved. Though a destruction of property may have been willful, whether it was unlawful may be a question which should be decided by the jury, upon the evidence showing the cause or motive.' If it was intended that the act alone should constitute the crime, irrespective of the- motive, then I do not think the legislature would, in enacting the section, have used the expression “ unlawfully.” It would have been sufficient to have said willfully.” To the presence of the word unlawfully ” in the section, I think we must give some importance and significance. It may be conceded that the intention, with which the offense charged in the indictment was committed, is not material to be proved by the people. They may rest upon giving proof of the destruction by the defendant of the property, as constituting an offense; but it is perfectly competent for the accused to give evidence in proof of a justification for his act, and then it becomes a question for the jury to decide, upon the evidence, whether there was excusable cause for the destruction of the property, or not. The intent to destroy undoubtedly existed; but if the jury should believe it to be shown by the evidence that the act was in defense of the possession of property, the criminality was lacking which constitutes the punishable offense against the people. That is claimed by the appellants to have been the case here, and there certainly was evidence, upon which the jury might have found that they did the act in defense of the possession of property. I cannot think that there is such a difference in principle between a case of assault and battery in defense of one’s property and that of a destruc-, tion of property in the same cause, as that in the latter case it is always unlawful, and, therefore, punishable by the statute, while in the former it may be justifiable.

It has been frequently held that one who is owner and in possession of premises has a right to defend their possession, and that defense may justify an assault and battery. (Harrington v. People, 6 Barb. 607, 612; Filkins v. People, 69 N. Y. 101, 106.)

In this case, it was shown by the evidence that Kane’s efforts to prevent Davis from using his property, by placing his boat upon it, had been persistently opposed and defied. If it had been so flagrant a case as actually to obstruct a proper and rightful enjoyment and use of his property, was Kane bound to submit to it, or to litigate the matter in the courts ? I cannot think so. That, in the particular case, the trespass' or obstruction may not have been such as to occasion the greatest inconvenience to the property owner, is not a consideration which affects the question of the right. • The ownership and possession of property confer a certain right to defend that possession, and I am unable to perceive wherein lies the essential difference in principle between a defense of it, which results in an assault and battery, and that which results in the destruction of the means used to invade and interfere with that possession. Whether the act done, in either case, was really in defense of one’s possession, its character and notice present a question which should be submitted to the jury.

In refusing to allow the jury to take into consideration the circumstances of this case, and in instructing them that upon the evidence the defendant had no right to destroy the boat, and that no right of property justified him in so doing, I think the trial judge seriously erred, and that, therefore, there should be a reversal of the judgment below and a new trial ordered.

Earl, Ch. J.

(dissenting). The defendants were indicted, under section 654 of the Penal Code, for unlawfully and willfully destroying a small boat which belonged to Lewis S. Davis. They pleaded not guilty, and the indictment was brought to trial in the Court of Sessions of Suffolk county.

The proof showed, without any dispute, that Davis had placed the boat upon a pond of water belonging to the father of one of the defendants; that the owner of the pond had repeatedly requested Davis to keep the boat therefrom; that he persisted in placing it there, and after the owner of the pond had several times removed it therefrom, he gave instructions to the defendants to destroy it, and they did destroy it by knocking it to pieces with an axe, in the absence of Davis. The defendants were found guilty and fined, and they now claim that the facts found did not show them to be guilty of any crime.

The main contention of the defendants is that they acted under the advice of counsel; that they had a right to destroy the boat and to protect the pond by its removal therefrom in that way, and that they believed they had a right to destroy the boat, and, therefore, had no guilty intent and could not be convicted of any crime.

The indictment describes the alleged crime in the language of the statute. The offense is precisely defined in the statute, and all it was necessary for the people to prove was that the defendants had unlawfully and willfully destroyed the boat. It was shown that they did it unlawfully, as they did it without any right or any authority of law. It was shown that they did it willfully, as they did it intentionally and purposely. A guilty or wicked intention, which is the essence of many crimes, although not of all, was not made an element of this crime, and it cannot he implied as a necessary ingredient of the crime from the words “ unlawfully and willfully ” used in the statute. (Anderson v. How, 116 N. Y. 336.) We think the statute was intended for precisely such a case as this, to protect property against the willful and unlawful destruction thereof by any person, and to secure the peace and good order of society by compelling individuals to resort to the law in disputes about property rights and trespasses, and to have such disputes adjusted by peaceful methods in the appropriate judicial tribunals. In this case, if Davis persisted in unlawfully putting his boat upon this pond, the owner of the pond could have sued him for trespass and recovered whatever damage was caused thereby; and such suits he could have repeated from time to time, and when it became apparent that they would not be adequate to protect his pond from the repeated trespasses, he could have commenced an action in equity to restrain Davis from placing his boat upon the pond, and in such a case an equity court would have jurisdiction for the purpose of preventing a multiplicity of suits. So the owner of the pond was not without an adequate remedy, and there was no necessity for the destruction of the boat in order to protect his pond.

There was no error in the rulings of the trial judge during the trial or in his charge to the jury, and the judgment should be affirmed.

All concur with G-bay, J., except Eael, Ch. J., and O’Bblen, J., dissenting, and Maynard, J., taking no part.

Judgment reversed.  