Campbell J.:
The defense of this case, as presented in the court below, was based upon a claim that the accused was only chargeable with excusable or justifiable homicide. And as most of the questions raised before us involve the consideration of the same subject, it may be necessary to examine somewhat carefully into the rules which divide homicide into its various heads, and determine the character of each act of slaying.
The facts are claimed, by the counsel for the accused, to have a tendency to establish the act as innocent on various grounds: first, as excusable in defence of himself or his servant; second, as justifiable in repelling a riotous attack, and third, as justifiable in resisting a felony.
The first inquiry necessary, is one which applies equally to all of the grounds of defense; and is whether the necessity of taking life, in order to excuse or justify the slayer, must be one arising out of actual and imminent danger; or whether he may act-upon a belief, arising from appearances which give him reasonable cause for it, that the danger is actual and imminent, although he may turn out to be mistaken.
Human life is. not to be lightly disregarded, and the law will not permit it to be destroyed unless upon urgent occasion. But the rules which make it excusable or justifiable to destroy it under some circumstances, are really meant to ensure its general protection. They are designed to prevent reckless and wicked men from assailing peaceable members of society, by exposing them to the danger of fatal resistance at the hands of those whom they wantonly attack, and put in peril or fear of great injury or death. And such rules, in order to be of any value, must be in some reasonable degree accommodated to human character and necessity. They should not be allowed to entrap or mislead those whose misfortunes compel a resort to them.
[174] Were a man charged with crime to be held to a knowledge of all facts precisely as they are, there could be few cases in which the most innocent intention or honest zeal could justify or excuse homicide. The jury, by a careful sifting of witnesses on both sides, in cool blood, and ■ aided by the comments of court and counsel, may arrive at a tolerably just conclusion on the circumstances of an assault. But the prisoner, who is to justify himself, can hardly be expected to be entirely cool in a deadly affray, or in all cases to have1 great courage or large intellect; and can not well see the true meaning of all that occurs at the time; while he can know nothing whatever concerning what has occurred elsewhere, or concerning the designs of his assailants, any more than can be inferred from appearances. And the law, while it will not generally excuse mistakes of law (because every man is bound to know that), does not hold men responsible for a knowledge of facts unless their ignorance arises from fault or negligence.
A criminal intent is a necessary ingredient of every crime. And therefore it is well remarked by Baron Parke in Regina v. Thurborn, 2 C. & K. 832, that “as the rule of law, founded on justice and reason, is that actus non facit reum nisi mens sit rea, the guilt of the accused must depend on the circumstances as they appear to him.” And Mr. Bishop has expressed the same rule very clearly, by declaring that “in all cases where a party, without fault or carelessness, is misled concerning facts, and acts as he would be justified in doing if the facts were what he believed them to be, he is legally as he is morally innocent : — 1 Bish. Cr. L. § 242.
These principles have always been recognized, and are sustained by numerous authorities; but they need no vindication, and a further citation would • add nothing to the clear and intelligible statements already referred to. And from an examination of some of the charges given, we [175] are very much inclined to believe that the court beloAV entertained the same views, at least as to some branches of the defense. But as some of the charges actually given, and particularly those in response to the first and second instructions requested, negative this rule, and the jury upon those must have been misled, we must regard these charges as erroneous unless they were inapplicable to the ease altogether. Their applicability will be presently considered.
In order to determine the materiality of the questions of law raised, it becomes necessary to determine under what circumstances homicide is excusable or justifiable. In doing this, it will be proper -to advert merely to those instances which may bo regarded as coming nearest to the circumstances of the case before us. The other cases we are not called upon to define or consider; and what we say is to be interpreted by the case before us.
The only variety of excusable homicide (as contra-distinguished from justifiable homicide at common law) which we need advert to, is that which is technically termed homicide se aid saa defendendo, and which embraces the defense of one’s own life, or that of his family, relatives or dependants, within those relations whore the law permits the defense of others as of one’s self. Practically, so far as punishment is concerned, there is no distinction with us between excusable and justifiable homicide; but' a resort to common law distinctions will nevertheless be convenient, in order to illustrate the difference between the various instances of homicide in repelling assaults, according as they are or are not felonious. Homicide se defendendo was excusable at common law when it occurred in a sudden affray, or in repelling an attack not made with a felonious design. According to Mr. Hawkins, it was excusable and not justifiable because, occurring in a quarrel, it generally assumed some fault on both sides : — Hawk. P. C., B. 1 Ch. 28, § 24. In these cases, the original assault not being with a feloni[176] ous intent, and the danger arising in the heat of blood on one or both sides, the homicide is not excused unless the slayer does all which is reasonably in ;Ms power to avoid the necessity of extreme resistance, by retreating where retreat is safe, or by any other expedient which is attainable. He is bound, if possible, to get out of his adversary’s way, and has no right to stand up and > resist if he can safely retreat or escape: — See 2 Bish. Cr. L. §§543 to 552, 560 to 562, 564 to 568; People v. Sullivan, 3 Seld. 396; 1 Russ. Cr. 660 et seq. Mr Russell lays ylown the rule very concisely as follows (p. 661) : “The party assaulted must there-' fore flee, as far as he conveniently can, either by reason of some wall, ditch, or other - impediment, or as far as the fierceness of the assault will permit him; for it may be so fierce as not to allow him to yield a step without manifest danger of his life or great bodily harm; and then, in his defense, he may hill his assailant instantly. Before a person can avail himself of the defense that he used a weapon in defense of his life, he must satisfy the jury that that defense was necessary; that he did all he could to avoid it; and that it was necessary to 2motect his own life, or to protect himself from such serious bodily harm as would give him a reasonable a2>prehension that Ms life was in immediate danger. If he used the wea2^on havmg no other means -of resistance, and no means of escape, in such case, if he retreated as far as he could, he would be justified.” A man may defend Ms family, his servants or his master, whenever he may defend himself. How much further this mutual right exists, it is unnecessary in this case to consider: — See 2 Bish. Cr. L. §581, and cases cited; 1 Russ. Cr. 662; 4 Bl. Com. 184.
There are many curious and nice questions concerning the extent of the right of self defence, where the assailed party is in fault. But as neither Pond nor Cull were in any way to blame in bringing about the events of Friday night, which led to the shooting of Blanchard, it is not [177] important to examine them. The danger to be resisted must be to life, or of serious bodily harm of a permanent character; and it must be unavoidable by other means, Of course we refer to means within the power of the slayer, so far as he is able to judge from the circumstan-' ces as they appear to him at the time.
A man is not, however, obliged to retreat if assaulted in his dwelling, but may use such means as are absolutely necessary to repel the assailant from his house, or to prevent his forcible entry, even to the taking of life. But here, as im the other cases, he must not take life if he can otherwise arrest or repel the assailant: — 2 Bish. Cr. L. § 569; 3 Greenl. Ev. §117; Hawk. P. C., B. 1 Ch. 28, §23. Where the assault or breaking is felonious, the homicide becomes justifiable, and not merely excusable.
The essential difference between excusable and justifiable homicide rests not merely in the fact that at common law the one was felonious, although j>ardoned of course, while the other was innocent. Those only were justifiable homicides where the slayer was regarded as promoting justice, and performing a public duty; and the question of personal danger did not necessarily arise, although it does generally.
It is held to be the duty of every one who sees a felony attempted by violence, to prevent it if possible; and in the performance of this duty, .which is an active one, there is a legal right to use all necessary means to make the resistance effectual. Where a felonious act is not of a violent or forcible character, as in picking pockets, and crimes partaking of fraud rather than force, there is no necessity, and therefore no justification, for homicide, unless possibly in some exceptional cases. The rule extends only to cases of felony; and in those it is lawful to resist force by force. If any forcible attempt is made, with a felonious intent against person or property, the person resisting is not obliged to retreat, but may pursue [178] Ms adversary, if necessary, till he finds himself out of danger. Life may not properly be taken under this rule where the evil may be prevented by other means within the power of the person who interferes against the felon. Reasonable apprehension, however, is sufficient here, precisely as in all other cases.
It has also been laid down by the authorities, that private persons may forcibly interfere to suppress a riot or resist rioters, although a riot is not necessarily a felony in itself. This is owing to the nature of the offense, which requires the combination of three or more persons, assembling together and actually accomplishing some object calculated to terrify others. Private persons who can not otherwise suppress them, or defend themselves from them, may justify homicide in killing them, as it is their right and duty to aid in preserving the |>eace. And perhaps no case can arise where a felonious attempt by a single individual will be as likely to inspire terror as .the turbulent acts of rioters. And a very limited knowledge of human nature is sufficient to inform us, that when men combine to do an injury to the person or property of others, of such a nature as to involve excitement and provoke resistance, they are not likely to stop at half way measures, or to scan closely the dividing line between felonies and misdemeanors. But when the act they meditate is in itself felonious, and of a violent character, it is manifest that strong measures will generally be required for their effectual suppression; and a man who defends himself, his family or his property, under such circumstances, is justified in making as complete a defense as is necessary.
When we look at the facts of this case, we find very-strong circumstances to bring the, act of Pond within each of the defenses we have referred to. Without stopping to recapitulate the testimony in full or in detail, we have these leading features presented: Without any cause or provocation given by Pond, we find Plant, Robilliard and [179] Blanchard, combining with an expressed intention to do him personal violence. On Thursday evening this gang, with from fifteen to twenty associates, having been hunting for Pond, found him at a neighbors, and having got him out of doors, surrounded him, while Plant struck him with his fist, and kicked him in the breast, with insulting language, evidently designed to draw him into a fight. He escaped from them, and ran away into the woods, and succeeded in avoiding them that night. That same night they tore down the door of the net-house, where his servants were asleep, in search of him; and not finding him there, went to the house; the whole rabble being with them; and wanted Pond, and expressed themselves determined to have him; but refused to tell his wife what they wanted of him. Not finding him there, they started off elsewhere in search of him. This was between nine and ten o’clock at night. About noon of Friday, Plant and Blanchard met Pond, when Plant threatened again to. whip him; and then went up to him, told him not to say anything, and that if he did he would give him slaps or kicks. Plant then took a stone in his hand, and threatened if Pond spoke, to throw it at him. Pond said nothing, but went home quietly, and Plant went off and was heard making further threats soon after. Friday night neither Pond nor his family went to bed, being in fear of violence. Between one and two o’clock that night, Plant, Robilliard and Blanchard went to the net-house, and partially tore it down, while Whitney and Cull were in it. They then went to the house where Pond, his wife and children were, shook the door, and said they wanted Pond. Pond concealed himself under the bed, and his wife demanded what they wanted of him, saying he was not there; when Plant shook the door again, and ordered Mrs. Pond to open it; saying they wanted to search the house. She refusing, they resorted to artifice, asking for various articles of food, and objecting to receiving them except through the door. Plant then repeatedly [180] commanded her to open the door, saying if she did not, she would regret it. On opening the door from six to twelve inches, by sliding the cord, to hand them some sugar, which they demanded, they did not take the .sugar, but Plant seized Mrs. Pond’s arm, and squeezed it until she fainted. Not succeeding in getting into the house, they then left for Ward’s, and Pond went to the house of his brother-in-law, and borrowed a double barreled shot gun loaded with pigeon shot, and returned home. While at Ward’s, Blanchard told the latter that they had tom down part of Pond’s net-house, and had left the rest so that when they went back they would have the rest of the fun. Blanchard also said, “I want to see Gust. Pond: he abused an Irishman, and I want to abuse him just as bad as he abused the Irishman. Pond has to be abused any way.” He also said to Ward, “ this is good bread, I don’t know but it may be the last piece of bread I’ll eat.’’ Plant also made threats. A short time after returning, they were heard to'say they were going back again; were going to find him and to whip him, or have the soul out of him. It is to be remarked that we have their language as rendered by an interpreter, who was evidently illiterate, or at least incompetent to translate into very good English; and it is impossible for us to determine the exact force of what was said.
The party then went back to^ Pond’s, and asked admittance to search for him. His wife refused to let them in. They immediately went to the net-house, where Cull was asleep. Plant seized Cull, and pulled him out of bed on the floor, and began choking him. Cull demanded who it was, but received no answer. Blanchard and Robilliard had commenced tearing down the boards. Pond went to the door and hallooed, “Who is tearing down my net-house ?” to which there was no answer. The voices of a woman and child were heard crying, and the woman’s voice was heard twice to cry out “ for God’s sake!” Cull’s voice was also heard from the net - house, not speaking, but [181] hallooing as if he was in pain. Pond cried out loudly “ leave or I’ll shoot.” The noise continuing, he gave the same warning again, and in a few seconds shot off one barrel of the gun. Blanchard was found dead the next morning. Pond took immediate steps to surrender himself to justice.
A question was raised whether the net-house was a dwelling or a part of the dwelling of Pond. We think it was. It was near the other building, and was used not only for preserving the nets which were used in the ordinary occupation of Pond, as a fisherman, but also as a permanent dormitory for his servants. It was held in The People v. Taylor, 2 Mich. 250, that a fence was not necessary to include buildings within the curtilage, if within a space no larger than that usually occupied for the purposes of the dwelling and customary out - buildings. It is a very common thing in the newer parts of the country, where, from the nature of the materials used, a large build, ing is not readily made, 'to have two or more small buildings, with one or two rooms in each, instead of a large building divided into apartments.
We can not, upon a consideration of the facts manifest ; from the bill of exceptions, regard the charges asked by/ the defense as abstract or inapplicable to the case. It was for the jury to consider the whole chain of proof; but if they believed the evidence as spread out upon the , case, we feel constrained to say that there are very few \ of the precedents which have shown stronger grounds of ! justification than those which are found here. Instead'1 of reckless ferocity, the facts display a very commendable ; moderation.
Apart from its character as a dwelling, which was denied by the court below, the attack upon the net-house for the_ purpose of destroying it, was a violent and forcible felony. And the fact that it is a statutory and not common law felony, does not, in our view, change its character. Rape and many other of the most atrocious felonious assaults, are statutory felonies only, and yet no [182] one ever doubted the right to resist them, unto death. And a breaking into a house with the design of stealing the most trifling article, being common law burglary, was likewise allowed to be resisted in like manner, if necessary. We think there is no reason for making any distinctions between common law and statute felonies in this respect, if they are forcible and violent. So far as the manifest danger to Pond himself, and to Cull, is concerned, the justification would fall within the common law.
It is claimed by the prisoner’s counsel, that we are authorized to pronounce upon the case the judgment which the facts warrant. Had the facts spread out in the bill of exceptions been found as a special verdict by the jury, this would be true. But as the case stands, we can only consider them as bearing upon the instructions given or refused. The errors being in the rulings, and not in the record outside of the bill of exceptions, we can do nothing more, in reversing the judgment,£than to order a new trial. The District Judge has ruled upon the law questions in such a way as to present them all fairly as questions not before decided in this state. We think there was error in requiring the actual instead of apparent and reasonably _¡ founded causes of apprehension of injury; in holding that the protection of the net-house could not be made by using a dangerous weapon; and that the conduct of the assailing party was not felonious; and also in using language calculated to mislead the jury upon the means and extent of resistance justifiable in resisting a felony.
We do not deem it necessary to pass upon the minor points, as we do not suppose the authorities will deem it important to proceed further, unless the facts are very different from those presented.
The judgment below must be reversed .and a new trial granted.
Manning and Christiancy JJ., concurred.
Martin Cn. J., concurred in the result.