Four burglars enter, three burglars leave... Householder arrested for murder...

goodomens wrote: »

This is worrying, there is no chance the house owner had a chance to think about whether his material posessions (which can be replaced) has more value over any human life. Therefore, what was in his heart was that his material posessions have more value over life itself, which shows his view on the worth of others. It shows immaturity, selfishness, and borderline insanity on his part.

Though a dwellinghouse is property and often indeed the most valuable piece of property an individual citizen possesses, it would be quite wrong to equate it with other forms of property such as money or moneys worth or other pieces of personal property. Though these may have a sentimental as well as a cash value, and may in certain circumstances be important or even essential for the individual who owns them, a dwellinghouse is a higher level, legally and constitutionally, than other forms of property. The free and secure occupation of it is a value very deeply embedded in human kind and this free and secure occupation of a dwellinghouse, apart from being a physical necessity, is a necessity for the human dignity and development of the individual and the family. It is in this sense that people who have been the victim of burglaries often speak of feeling personally debased by the experience[...]The considerations set out in the last paragraph equally explain why burglary must always be an act of aggression. In reality, it is amongst the worst acts of aggression the individual citizen is likely to encounter

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The victim of a burglary is not in the position of an ordinary reasonable man or woman contemplating what course of action is best in particular circumstances. He may be (and Mr. Forrestal actually was) aging, alone, confronted with numerous and/or much younger assailants (Barnes was almost exactly fifty years younger than his victim). In almost every case the victim of burglary will be taken by surprise. The victim will, therefore, be in almost every case shocked and surprised and may easily be terrified out of his wits. To hold a person in this situation to an objective standard would be profoundly unjust. [...]He or she has, after all, been deliberately subjected to an experience which will shock even the most robust and might make many irrational with terror.

I'd be interested in hearing any justifications people have for believing theft should carry a death sentence.

Each side of the present litigation has put before the Court many statements of the original Common Law position of burglars and householders. The latter term, of course, embraces the owner or lawful occupier of every sort of premises from a palace to a shack and regardless of whether he is the full owner, a tenant or a licensee or other form of permissive occupant. In a very ancient case the following was said:

“It was presented that a man killed another in his own house se defendendo. It was asked whether the deceased came to have robbed him; for in such a case may kill another though it be not in self defence… and the twelve said not. Wherefore they were charged to tell the way how it happened, whereby he should receive the King’s pardon”.
(1329) F Coron. 305.

In the first edition of Halsburys Laws of England (1909), the following appears at p.587:
“The owner of a dwellinghouse, or any of his servants or lodgers, or any other person within the house, is justified in using force towards a person who is manifestly attempting to… commit a burglary there, or to invade and enter it by violence; if the owner in the use of such force kills such person he does not commit any crime.
A person lawfully defending himself or his habitation is not bound to retreat or to give way to the aggressor before killing him; he is even entitled to follow him and to endeavour to capture him; but if the aggressor is captured or is retreating without offering resistance and is then killed, the person killing him is guilty of murder”.

Statements to similar effect were to be found in various criminal law books of which the 26th edition of Archbold at p.887 may be cited:
“In defence of a man’s house, the owner or his family may kill a trespasser who would forcibly dispossess him of it, in the same manner as he might, by law, kill in self defence a man who attacks him personally; with this distinction, however, that in defending his home he did not retreat, as in other cases of self defence, for that would be giving up his house to his adversary.”

This passage was quoted with approval in R. v. Hussey [1924] 18 Criminal Appeal Reports 160. There, a man was convicted of an assault offence. He was in a room which was the habitation of himself and his family when the landlady, who had served an invalid notice to quit, attempted with two companions forcibly to eject him. They broke the panel of the door whereupon he discharged a firearm through it, injuring two of the persons outside. The conviction was quashed by the English Court of Criminal Appeal on the basis that the trial judge had been wrong simply to regard the defence as one of simply self defence. Hewitt C.J. held that the law relating to the defence of the dwelling was different to that of the ordinary law of self defence and insofar as the judge’s charge to the jury “proceeded on the foundation that the defence was the ordinary of self defence” they had been mischarged and the verdict might have been different had the law been correctly stated.

You originally said that they accept the risks, whether or not they do so knowingly. But now you say that they are aware of the risks when they enter the house. I'm not arguing that burgling is a dangerous crime. I'm asking how you can accept the risks without being aware of them

It seems clear to us that a burglar would prefer, in his own interests, to enter empty premises rather than an occupied house. But that cannot take from the fact that every burglar runs the risk that the householder may be present even though the burglar thinks he is not,