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Attorney(S)

Livingston Smith for appellants. Benjamin H. Reeve for respondent.

Judges

Robert Earl

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Smart Summary

Case Summary: The People of the State of New York v. Henry E. Kane et al.

Factual and Procedural Background

The defendants (one of whom was the son of Edward Kane) were indicted and convicted under section 654 of the Penal Code for the unlawful and willful destruction of a row-boat owned by Lewis S. Davis. The boat had been repeatedly placed by Davis upon the waters of a mill-pond belonging to Edward Kane. Kane repeatedly notified Davis to remove the boat; Davis refused. On multiple occasions Kane removed the boat from the pond and placed it on Davis's adjacent land; Davis returned it to the pond and, on one occasion, chained it to a tree. Edward Kane, having gone to Europe, placed his son (a defendant) in charge of the property and instructed him to prevent Davis's continued use of the pond.

When Davis again placed the boat on the pond, the defendant Kane — testifying that he believed he had the right and had been advised by his lawyer — and the other defendant broke the boat in an open act without conflict or riotous disturbance. The defendants were tried in the Court of Sessions of Suffolk County, found guilty, and fined. At trial the defendants requested a jury instruction that they had a right to destroy the boat, if necessary, in defense of their possession; the trial judge refused and instructed the jury that the destruction was unlawful. The defendants excepted to the refusal. The case was brought to the Court of Appeals (argued Jan. 21, 1892; decided Feb. 9, 1892).

Legal Issues Presented

Whether, under Penal Code section 654, the destruction of property may be justified as an act in defense of the possession of property so that evidence of such justification is admissible and the question is for the jury.
Whether the trial court erred in refusing the defendants’ requested instruction that, if the boat was being placed on Kane’s pond against his wishes, he had a right to destroy the boat in defense of his possession.
Whether the statutory phrasing "unlawfully and willfully" requires proof of a culpable motive (or prevents consideration of a defensive justification) as an element of the crime charged.

Arguments of the Parties

Appellants' Arguments

The defendants asserted they broke the boat in defense of their possession of the pond and property; they asked the court to instruct the jury that such defensive destruction could be justified.
They contended they believed they had the right to act and had been advised by counsel, so their mental state precluded criminal culpability — i.e., the absence of guilty intent should negate criminality.

Respondent's (People's) Position

The proofs established that the defendants willfully and unlawfully destroyed Davis's boat; the trial court therefore charged the jury that the destruction was unlawful and refused the defendants' requested instruction.
(As reflected in the dissent) The People maintained the statutory elements were satisfied by proof of an intentional and unauthorized destruction and that counsel's advice or the defendants' belief in a right did not remove criminality under the statute.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Harrington v. People, 6 Barb. 607, 612	That an owner in possession has a right to defend possession and that such defense may justify an assault and battery.	The majority (Gray, J.) invoked this authority to support the proposition that defense of possession can justify otherwise wrongful acts and to analogize defense-of-property justifications in assault cases to destruction-of-property cases.
Filkins v. People, 69 N.Y. 101, 106	Same general principle: a person in possession may defend that possession; force used in defense may be justified.	The majority cited it alongside Harrington to show established authority that defensive actions protecting possession can be justifying conduct, arguing that a similar analysis should apply where the defensive act results in destruction of the instrument used to trespass.
Anderson v. How, 116 N.Y. 336	Recognized in the dissent for the proposition that the statute's use of "unlawfully and willfully" does not import a requirement of a wicked or guilty intention as an element of the offense.	The dissent (Earl, Ch. J.) relied on this case to argue that the statutory offense is constituted by intentional and unauthorized destruction, and that defendants' belief or advice of counsel does not negate the statutory elements.

Court's Reasoning and Analysis

Majority opinion (Gray, J.):

The majority characterized the single issue on appeal as the trial court's refusal to charge the jury that the defendants could destroy the boat if necessary in defense of their possession.
Interpreting Penal Code section 654, the majority reasoned that the statutory phrase "unlawfully and willfully" contemplates both an element of willfulness and an element of unlawfulness — the latter potentially implicating the actor's motive or excuse. The presence of the word "unlawfully" suggests that motive/justification may affect criminality and therefore that excuse or justification evidence is admissible for the jury to consider.
Although the People need only prove the physical act of destruction to make a prima facie case, the accused is entitled to present evidence of justification (e.g., defense of possession). If the jury believes the act was done in defense of possession, the criminality required by the statute would be absent.
The majority drew an analogy between defense-justifications that excuse an assault and battery and those that might excuse destruction of property used to trespass: there is no principled difference that should render destruction always unlawful while permitting force against a person to be justified. Whether the act was genuinely defensive is a question of fact for the jury.
The trial judge erred by refusing to permit the jury to consider the defendants' justification and by instructing them that the defendants had no right under the circumstances to destroy the boat; accordingly, the majority ordered reversal and a new trial.

Dissenting opinion (Earl, Ch. J.):

The dissent emphasized the statutory definition of the crime and concluded the proofs established both elements — that the boat was destroyed intentionally and without lawful authority.
The dissent rejected the view that the statute required proof of a wicked or guilty intent as an element; citing Anderson v. How, the dissent argued the accused's belief or advice of counsel did not negate the offense.
The dissent further reasoned that the pond owner had adequate legal remedies (actions for trespass or equitable relief) and that the destruction of the boat was an unnecessary and unlawful self-help, so the trial court's refusal to instruct as requested was proper and the conviction should be affirmed.

Holding and Implications

Holding:

Judgment reversed. The majority held that the trial court erred in refusing to allow the jury to consider evidence that the destruction of the boat was done in defense of possession, and directed that a new trial be ordered.

Implications:

The immediate and direct effect of the Court of Appeals' majority decision is reversal of the conviction and an order for a new trial so that the jury may consider whether the defendants' destruction of the boat was excused as a defense of possession. The majority's analysis construes the phrase "unlawfully and willfully" in Penal Code section 654 to permit the accused to offer justification evidence and for the jury to determine whether the act was criminally unlawful. The dissent disagreed and would have affirmed, relying on the position that the statute was satisfied by intentional and unauthorized destruction and that civil remedies were available to the property owner.

Note: The summary above is derived strictly from the text of the provided opinion and does not add information beyond that contained in the opinion.

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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. HENRY E. KANE et al., Appellants.

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 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, 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 destruction 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 be 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 GRAY, J., except EARL, Ch. J., and O'BRIEN, J., dissenting, and MAYNARD, J., taking no part.

Judgment reversed.

PEOPLE v. KANE ET AL