#### 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 noj 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 provirion 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 c a 'iims *¡*anees have however so greatly changed since this ancient rule was established, that it is very questionable whether, in view of the large amount of propel ty now kept in warehouses, banks and other outbuildings, it should not be hell lawful to place instruments of destruction for the protection of such property ,

Breaking and entering a shop in the aighf season with intent to steal, is by our *480law burglary, and tbe placing of spring guns in such a shop for its.!.s»,'. *>¡*‘ be justified if a burglar should be killed by them.

The guns would however have constituted a nuisance if they cause ■ ,¡u .'l'-cw' to passers by in the street.

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

Where, upon a prosecution for a nuisance, the jury, by a special vei ■ -fu'f. the defendant placed spring guns in his shop for its protection a;. '• ; that the guns were loaded with large shot and so placed as to disc i. u,- "i r .u tents obliquely towards the highway, the traveled path of which ■ • „v or and a half from the shop; that the shop was lathed and plaster' .i> .. : ble and double boarded on the outside, but that it was possible that . ■ •• ttau-;; sW-.i, might pass through the boards at places where by reason of the them there was not a double thickness of boards; and that the t avJfrv-, prJ.rUo were annoyed and apprehensive of harm from the guns; it was 1 tht 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 ease 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 hoards 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 alarmbd, and apprehensive of danger *481from an accidental discharge of said guns, and some of ■■ < remonstrated with the defendant. The defendant gavt ¡ - tice of the placing of said guns to the public. The defer • i had no intent to endanger or annoy the public on said way, but acted with the sole purpose and intent of prote his property in said shop from burglars, supposing he 1 l lawful right so to do ; and upon the commencement oí '>A prosecution he desisted from placing said guns as be ’

And thereupon the jury find, that if upon the facts so fou *'■*u verdict and judgment of guilty can be legally rendered, the defendant is guilty ; 'but if said facts will not authorize in >>,w a verdict and judgment of guilty, then we find the defen - vq> not guilty, and submit the question as a question of law tc i.he court.

The questions of law arising on this verdict were resen- -yl » 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. J c." gan, 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, 441 ; 2 Swift Dig., 284; *Johnson*v. Patterson, 14 Conn., *1; Sa*re v. Blackburn, Mood. *&*Malk., 502; *Blackman*v. *Simmon? .,*u Car. *&*P., 138; *Brock*v. Copeland, 1 Esp., 203; *Ilott*; *Wilkes,*3 Barn. *&*Ald., 304; U. *States*v. *Wiltberger,*Wash. C. C., 515, 521; *Gray*v. *Coombs,*7 J. J. Marsh., 4'A

Butler, J.

It is not easy to see how the mere act of s Siting spring guns on his own premises by the defendant can *l*holden unlawful in itself. That such an act could not be u 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 tie *482ion of a nuisance, if tlie public were thereby subjected to *longer*and consequent annoyance,

iat a man may not do directly, he may not do indirectly, the rules of the common law the defendant could not, if nt, have discharged the guns which he placed in his shop .s own direct agency, against a thief, who had broken and • ed for the purpose of stealing, he certainly could not and leave them so that the thief, if he entered, would arge them against himself. This principle was also add by the court of King’s Bench in *Ilott*v. Wilkes, but ction was trespass, and the judges held that the rule did pply where the trespasser had *notice*that the engine was reed and the danger existed. But the fallacy of their reag,in that respect, was cleai’ly shown in this court by Judge ■nan, *in Johnson*v. *Patterson,*14 Conn., 1; and it is set-law here, that if the wrong or guilt of the trespasser or is not such as to justify the injury, if inflicted directly, a not be justified because inflicted indirectly, and by the ,ing agency of the wrong doer.

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

is clear that in the absence of any statutory provision ing the offense of breaking and entering a shop in the ■t season *burglary,*and by the early and strict rules of the mon law, a man may not take life in prevention of such a ie. Those rules recognize a right in every man to defend *property,*as well as person and habitation, by taking the of the aggressor, as a *natwal right;*but they also limit restrain the exercise of that right to the prevention of a ;ain class of forcible and atrocious crimes, of which break-a shop in the night season is not one at common law.

*483The 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 cmd surprise ;*such as mjirder, robbery, burglary, arson, breaking a house in the day tiufé *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 Grown, or have been specified by any writer since. Mr. East, in his Pleas of the Grown, 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 lias 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 Diet., 278. Nor have we been referred to any case in England where it has been hoi den 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 *484ies to prevent which life may be taken by strict letter of common law; but rather that *“*the time and circumstanonstitutod afease of necessity, that legitimated the means rted to.” *sWe*are satisfied, therefore, that by the strict r of the'common law a man may not take life in defense roperty in a shop, and therefore may not justify a homiciue committed by placing spring guns'therein.

But these rules of the common law were originally founded jn 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 1 as not created a necessity for an extension of a right to take fife hi defense of property in a shop. The offense is a felony, u.d has all the elements of a felony by violence and surprise i;, ?J burglary has, except that it is presumptively committed ■ .en no person is present, and unaccompanied by danger of sonal injury to the owner or his family or guests. But if a reason originally for the distinction between a man-house and a shop, is now to some extent practically dis-«led, for burglary maybe committed in a barn, wood i: < ■ o, or even smoke house and hen roost, though separate ■ : ; tures, and unconnected with the dwelling house, and min' sed by a common fence, if in close proximity, and “ in <, nature serviceable in respect to the abode; ” and in cases no danger of personal collision exists. 1 Bishop j., sec. 171. So doubtless, in the olden times, all the idles were contained in the castle (dwelling-house and lage) for protection, and shops were few and did not re- ¡ such protection. Now our banks, stores, warehouses, ¿factories and shops contain in large quantities our most ible property and goods, and those which are the most ly transported, and least easily identified and recovered. it certainly seems very absurd to permit a man to protect moke house and hen roost, by taking the life of the noc•il thief, and deny him the right to defend a bank, or a : ¡ full of costly jewelry or valuable silks, by the same " . is. We are aware that, writer* nn tim *485ancient 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 wliat 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 coui’t 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 merchandise are deposited,” was by express statutory provision made fmu’glary, 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,” Ac. 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 *486ng-liouse or shop under the ancient statute, was punish->r the third offense by death.

re act referred to, as found in the edition of 1808, several es for which the same punishment was provided were ced in a single section. In 1821 the revisors separated into distinct sections, and in so doing placed burglary , section and' the breaking and entry of a shop in an-adding *to*the latter the words, “ store, warehouse and use, *whether parcel of any mansion house or not,”*but . ¡ . ■■ ed the same punishment, viz., three years’ imprisonment, ; jh. It is apparent from the words, “ whether parcel of ■ i ansion house or not,” and the similarity of the punish- • : that no change in the character of the offense was in- ■ l, and such has been the understanding of the profession , ie courts. In the revision of Swift’s Digest by Judge ! ■ • a, the offense is treated as burglary, (vol. 2, page 330,) st,' • our forms the word *“*burglariously ” is used in informar ’< ipon the statute. In the act of 1830 respecting crimes, unishment of burglary was increased to a maximum of , jars, and the breaking and entering a shop to four years, ; at distinction in the punishment has not been regarded s changing the nature of the offense. In 1843, in the ca£^ *¿Í The State*v. *Lewis,*16 Conn., 32, it was distinctly recoge iízp"1 and treated as burglary. *JKL*

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

e are also satisfied that if the guns had actually been danas to the public who had occasion to pass the highway ", , would have constituted a nuisance. The statute relative ,. aisances in highways, embraces specifically objects placed , . . cfcs done within its limits. But other acts committed . mitted upon the adjoining land by the owner thereof, which !anger and annoy travelers, are nuisances at common law. overhanging tree whose limbs actually interfere with the *487use 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.