State v. Christener

Hughes, C. J.

(concurring). I concur in the opinion of Justice Pashman for the majority. However, in addition to the points made in the majority’s opinion, I would especially comment upon the fact that the tragic event occurred in the very home of the defendant. The significance of that factor, I feel, should be emphasized by a specific approval by us of the relevant charge of the court, which was as follows :

No duty to retreat is imposed upon a person who, free* from fault in bringing on a difficulty, is attacked at or in his dwelling house.

I charge you that a man is not bound to retreat from his house. He may stand his ground there and kill any person who enters by force for the- purpose of committing great bodily harm upon one inside the home.

*75 In such case, I charge, the owner of the home or any occupant of said home may meet the intruder and prevent him from causing great bodily harm by any means rendered necessary, even to the taking of the life of the intruder.

In this regard I charge you that [the deceased] had no right to be in the premises, and that his presence was in the violation of the criminal laws of this State.

Before applying this principle you will examine all the evidence in the case to determine from the evidence whether the defendant used reasonable force to repel the attack, that is, such force as he believed necessary to protect himself and members of his family or household therein in the circumstances as they reasonably appeared to him. If you so find, the killing is justifiable and the defendant shall be acquitted.

It is a regrettable fact that in modern day America personal security has diminished because of the threat of physical violence. Whether on subway, in bus terminal, on public street or in public park, in sheltered suburb as well as in urban ghetto, one feels the lurking threat of violence. Citizens are being attacked and robbed in broad daylight in the very shadow of State House, court house and other public buildings. There is a constant search for causes of this phenomenon. Some point to drugs and desperate crimes committed to satisfy addiction. Others blame juvenile violence whether from poverty, family breakdown, permissiveness or other factors. Still others stress the violence of the hard core predatory criminal who feasts on pain and hurt to his victims. Some indeed see as a cause the occasional excessive lenience of judges, or the inadequacy of law enforcement.

In the present context the cause is less important than the effect, —• the obvious fact of modern life which is seen in the rise of violence in our society.

But it has generally been supposed that once the sanetuary of home was reached, and the front door locked, and that other satisfying part of human life resumed, — that one could leave behind the travails of daily work or travel and the dangers of the street; — that there would *76 be a respite, — a security, — something of an oasis of shelter from danger.

The sanctity of home is not new. At the common law it was thought impervious even to royal or official intrusion. Mr. William Pitt the Elder in addressing Parliament once said:

The poorest man may in his cottage hid defiance to all the forces of the crown. It may be frail — its roof may shake — the wind may blow through it — the storm may enter — the rain may enter — but the King of England cannot enter! •—■ all his force dares not cross the threshold of the ruined tenement! [1 H. Brougham, Historical Sketches of Statesmen Who Flourished in, the Time of George III, at 39-40 (1854)].

And our ancestors secured this concept of immunity from intrusion in the Fourth Amendment:

The right of the people to be seeure in their * * '* houses * * * against unreasonable searches and seizures, shall not be violated

This protection “did but embody a principle of English liberty, a principle old, yet newly won, that finds another expression m the maxim ‘every man’s home is his castle.’ ” Fraenkel, “Concerning Searches and Seizures,” 34 Harv. L. Rev. 361 , 365 (1921) (footnotes omitted). See also Semayne’s Case, 77 Eng. Rep. 194, 195 (K. B. 1604); 4 W. Blackstone, Commentaries *223.

The situs of the tragedy involved here was a home, albeit a mobile home. And in any fair view of the evidence it was the defendant’s home. The legal, moral or other status of another occupant of the home was totally immaterial to the present issue, — something to be judged in another tribunal perhaps, or under different moral concepts. The fact of the matter was that a brutal, drunken, powerful and obviously dangerous intruder threatened imminent deadly harm to one within the confines and, I think, legally within the protection of that home. The defendant here sought to exercise *77 that protection, — and his right and justification to do so was properly stressed by the trial court.

I think the defendant’s conduct would have been judged by a different standard in the “ordinary” case, — if it had occurred, let us say, in a public street with a policeman on a nearby corner, or in a well-lighted parking lot with possible citizen help nearby. But in an isolated home, with unavailing calls for help to reluctant police, after a forcible and violent entry, the imminence of deadly harm was such that the present ease is most extraordinary.

In these circumstances I would view the quoted charge of the trial court with such approval that if it or something like it had not been included in the general charge, I would have considered such deficiency as ample ground alone for reversal of the conviction.

Justice Mountain joins in this concurring opinion.