1. At the outset, the writer of this dissenting opinion wishes to make it very plain that deceased was not killed by a spring gun set by defendant, while deceased was in the act of stealing chickens roosting on the fence of defendant's backyard, or while deceased *Page 710 was in the act of breaking into an ordinary wooden or wire chicken coop or chicken house.
It is unanimously agreed by the court that it is not excusable to take human life for the theft of chickens, a mere misdemeanor, or for breaking into any ordinary chicken coop or chicken house, a mere trespass.
It is admitted in the majority opinion that deceased was killed by a spring gun set by defendant in his barn, an outhouse located on defendant's premises; that this barn was of considerable length; that it had a long passageway running through it with stalls on each side, and was closed at one end by wire and at the other end by latched gates. It is also stated in the opinion of the majority that, "The probabilities are that deceased opened these gates when he entered the barn."
During the argument of this case, counsel for the state also admitted that defendant's barn was entered by deceased "in thenight time."
Under Act No. 72 of 1926, the breaking and entering in thenighttime of a barn, store, shop, warehouse, or a garage, with intent to steal, is a burglary and felony, necessarily punishable by imprisonment at hard labor, not exceeding ten years.
The force required to constitute "burglary" does not necessarily mean the breaking of a lock or of a fastening. Unlocking or unlatching a door or pushing open an unlocked or unlatched door constitutes burglary. Wharton's Crim. Law, vol. 11 (11th Ed.) pp. 1192, 1193.
The opening, therefore, by deceased of the latched gates of defendant's barn in the nighttime *Page 711 made the breaking complete under Act No. 72 of 1926, and the intent of deceased to steal is proved by the fact that his body was found at the entrance of the stall of the barn in which defendant's fowls roosted, and across which the wire pulling the trigger of the spring gun had been stretched, thereby making it certain that deceased had come in contact with this wire while attempting to enter the stall in which defendant's fowls roosted.
"Whether the felonious intent be executed or not is immaterial, supposing that it can be inferred." Wharton's Crim. Law, vol. 11 (11th Ed.) p. 1225.
It is not necessary, therefore, in this case to show that the deceased accomplished the purpose he had in breaking and entering defendant's barn.
It is also immaterial, in this case, whether deceased broke and entered defendant's barn in the nighttime with intent to steal eleven chickens, or eleven mules, or eleven cows, since the crime of burglary does not depend at all upon the value of the goods intended to be stolen.
It is the mature conviction of the writer of this dissenting opinion that, under all of the facts of this case, deceased was guilty of the crime of burglary, a felony under the criminal statutes of this state, and that he was not ruthlessly slain by the spring gun set by defendant in his barn, merely for the theft of chickens, or for a mere trespass in entering the barn of defendant.
The trial judge therefore erred, in my opinion, in refusing to give to the jury in this case the following charges: *Page 712
"Special Charge No. 1. The breaking and entering of a barn or chicken-house belonging to accused inside of his yard or near his residence, being a part of his premises, in the night time for the purpose of stealing his property, is a felony.
"Special Charge No. 2. The unlatching of a gate to a barn or the lifting of a latch, or the unlocking of a wire fastening, or pushing open of a door which had been shut, constitutes breaking and entering, particularly if done in the night time."
The charge of the trial judge to the jury in this case shows upon its face that he considered that the deceased had committed a mere trivial trespass in breaking and entering the barn of defendant in the nighttime, with the intent to steal, as if the barn were a mere "chicken-house" and nothing more. Under such a charge, nothing was left to the jury except to convict the accused.
2. The majority opinion also holds that a property owner of this state is not justified or excused in taking the life of even a burglar and felon, by means of a spring gun, unless the property owner would have been justified or excused, had he been personally present in the building to be protected, and had taken the life of the burglar and felon with his own hands.
In the present case let us suppose that, instead of an alleged "chicken-thief," an armed band of horse thieves or cattle thieves had arrived at midnight at the barn of defendant, and, while they were battering down the gates of the barn, defendant had fired from a window of his dwelling house, or from his backyard, and had killed one of the desperadoes. *Page 713
Under the opinion of the majority, defendant would be clearly guilty of manslaughter at least, and would have to wear the stripes of a felon, although he is an honest farmer, and had done nothing but protect his property against armed violence.
On the other hand, let us also suppose that defendant was in the barn at the time the armed band of horse thieves and cattle thieves arrived, and commenced to break in. Had he fired a single fatal shot, before some overt act or hostile demonstration against his life had been made by some one of these armed marauders, he would be guilty of manslaughter, and condemned to hard labor in the state penitentiary.
Under the opinion of the majority, the only thing a farmer can do out in the country, where there is no police protection, is to step out in the open and invite a band of cattle thieves and horse thieves, seeking to loot his barn, "to take the firstshot," and, if any of the farmer is left, then the "leavings" have a legal right to defend themselves the best way that they can.
Let us also take the case of a merchant in the city of New Orleans, or in some other large city in the state. His warehouse has been burglarized and he desires to prevent future depredations. He places a watchman in this warehouse. At midnight, a truck loaded with gangsters arrives, armed with submachine guns, sawed-off shotguns, and automatic pistols. While the doors are being pried open, the rest of the gang stands with submachine guns and sawed-off shotguns at their disposal, ready to shoot down at sight any officer of the law who may approach, or any watchman who may be found inside of *Page 714 the warehouse. Should the watchman fire, as the gangsters break in, he would be shot dead on the spot, without a chance for his life.
3. As to the question whether an owner may set a spring gun in any store, shop, warehouse, barn, etc., to keep off burglars and others felons, there are two lines of conflicting decisions in this country. One line of these decisions holds that killing by spring guns when necessary to exclude burglars is excusable,although the owner is not present at the time. "Such guns may be used," says Wharton, "in a house to protect valuables there stored, but when they are negligently planted in a place where they may be reasonably expected to injure ordinary trespassers accustomed and likely to frequent such place, the killing of such a trespasser is manslaughter." (Italics mine.) Wharton Crim. Law, vol. 1 (11th Ed.) § 638, p. 813, citing State v. Moore,31 Conn. 479, 83 Am. Dec. 159; Gray v. Combs, 7 J.J. Marsh. (Ky.) 478, 23 Am. Dec. 431; Hott v. Wilkes, 3 Barn. Ald. 304, 25 Revised Rep. 400.
Wharton declares that: "The distinction is this: the agency is one which a house owner is entitled to use in such a way as tokeep off burglars and other felons." Wharton Crim. Law, vol. 1, § 592, p. 757.
In State v. Moore, a Connecticut case above cited, the spring gun was erected in a warehouse, and in Gray v. Combs, a Kentucky case above cited, the spring gun was set in a store, and the owner of the property was not present in either case.
The writer of this dissenting opinion considers that this line of decisions announces the better rule, since it relaxes the *Page 715 technicalities that usually surround and protect the felon, and is more in harmony with the temper of the times and the urgent need of society today for protection against violent and atrocious crimes.
We are not living in a calm and philosophical age, in which human life and property rights are generally respected. On the contrary, society is confronted today with the shocking and continuous depredations of organized, desperate, and merciless gangsters and racketeers.
Human life has become, in the eyes of these arch criminals, as cheap as meat in the butcher's stall and, in their eyes, property rights have lost entirely their legal sanctity.
In the midst of this chaos of crime, disorder, and defiance of constituted authority, courts and officers of the law have proven wholly inadequate for the necessary protection of either life or property.
What then is to be the end of it all, if the courts, under the time-worn technicalities of the criminal law, restrict the right of the lawful owner to protect his property against the gangsters and racketeers of today, only to cases in which the owner is present in the building, at the time of the breaking and the entering, and then only to the case in which the owner's life is in imminent danger and peril?
In this age of gangsters and gangster methods, the law-abiding citizen has no chance for his life, even when armed and present in his store, warehouse, or barn, when pitted against burglars and felons fully equipped with submachine guns, sawed-off shotguns, and automatic pistols. *Page 716
Times change and we change with them, and the law must fit the necessities of the times in which we live, in order to afford adequate protection to society.
The time has come when the shadow of subtle technicalities must yield to the substance of reason and justice in the preservation of the social order. I therefore adhere to the line of decisions cited above.
For these reasons, I respectfully dissent from the opinion of the majority in this case.