People v. Kane

• Decision Date: 09 February 1892
• Citation: 131 N.Y. 111,29 N.E. 1015
• Parties: PEOPLE v. KANE et al.
• Court: New York Court of Appeals Court of Appeals

131 N.Y. 111

29 N.E. 1015

PEOPLE

v.KANE et al.

Court of Appeals of New York.

Feb. 9, 1892.

Appeal from supreme court, general term, second department.

Indictment of Henry E. Kane and others for the unlawful and willful destruction of property. From a judgment of the general term affirming a judgment of conviction, defendants appeal. Reversed.

EARL, C. J., and O'BRIEN, J., dissenting. 15 N. Y. Supp. 612, reversed.

Livingston Smith, for appellants.

Benjamin H. Reeve, Dist. Atty., for the People.

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 that 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 case, 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...