The involuntary assassin: When the law transforms a burglar into a murderer

“ It is one of the most atrocious crimes on the criminal calendar. It is simply terrible to think of people defenseless and helpless in their own homes and beds when masked men, prepared to do murder, steal in to rob them. There is no palliation for this offense, for there is no crime, save that of forgery, that is conducted with so much forethought, decision and calculation—yes, calculation to do murder if it becomes necessary, for they go prepared to kill ”

“ I said, "and you had better go upstairs as soon as you two have seen what sort of people are these cowardly burglars who sneak or break into the houses of respectable people at night, and rob and steal and ruin other people's property with no more conscience or human feeling than is possessed by the rats which steal your corn, or the polecats which kill your chickens."
"I can scarcely believe," said Aunt Martha, "that that young man is a real burglar." ”

“ The legislative history also indicates that Congress singled out burglary (as opposed to other frequently committed property crimes such as larceny and auto theft) for inclusion as a predicate offense, both in 1984 and in 1986, because of its inherent potential for harm to persons. The fact that an offender enters a building to commit a crime often creates the possibility of a violent confrontation between the offender and an occupant, caretaker, or some other person who comes to investigate. ”

“ The most likely explanation, in view of the legislative history, is that Congress thought that certain general categories of property crimes—namely burglary, arson, extortion, and the use of explosives—so often presented a risk of injury to persons, or were so often committed by career criminals, that they should be included in the enhancement statute even though, considered solely in terms of their statutory elements, they do not necessarily involve the use or threat of force against a person. ”

“ But, even assuming that Congress intended to restrict the predicate offense to some especially dangerous subclass of burglaries, restricting it to common-law burglary would not be a rational way of doing so. The common-law definition does not require that the offender be armed or that the dwelling be occupied at the time of the crime. An armed burglary of an occupied commercial building, in the daytime, would seem to pose a far greater risk of harm to persons than an unarmed nocturnal breaking and entering of an unoccupied house. ”

“ Second, if Congress had meant to include only an especially dangerous subclass of burglaries as predicate offenses, it is unlikely that it would have used the unqualified language "is burglary ... or otherwise involves conduct that presents a serious potential risk" in § 924 (e) (2) (B) (ii) (emphasis added) . Congress presumably realized that the word "burglary" is commonly understood to include not only aggravated burglaries, but also run-of-the-mill burglaries involving an unarmed offender, an unoccupied building, and no use or threat of force. ”

“ There can be practically but one motive for theft, burglary, or robbery. It is, of course, conceivable that such crimes might be perpetrated for revenge—to deprive the victim of some highly prized possession. But in the main there is only one object—unlawful gain. So, too, blackmail, extortion, and kidnapping are all the products of the desire for "easy money." But, unquestionably, this is the reason for murder in comparatively few cases. ”

“ Irrespective of its effect on the criminal, what is the effect on the victim of the criminal? A man is held up on a lonely highway; the robber does not intend to kill. His face is exposed. If the penalty for robbery is life imprisonment, he kills to avoid detection. If it is death, he kills even before he robs. The same thing operates in rape, in burglary, and in other crimes. In all property crimes not only is no killing intended or wanted, but precautions are taken to guard against killing. All laws to make drastic penalties should really be entitled: "An Act to Promote Murder." ”

“ To prevent subsequent identification. Many burglars proceed to murder for that reason. I know plenty of old hands who would commit half a dozen murders rather than face the prospect of five years' imprisonment. I do not say that burglary was the motive in this case, but we must not lose sight of the possibility. ”

“ Thus, were a person to kill another in doing a felony, though it be by accident, or where a person fires at one who resists his robbing him and by such firing kills another against whom he had no design, yet from the evil intention of the first act, he becomes liable for all its consequences, and the fact, by an implication of malice, will be adjudged murder. Nay, though there be no design of committing felony, but only of breaking the peace, yet if a man be slain in the tumult they will all be guilty of murder, because their first act was a deliberate breach of the Law. ”

“ Thus the crime of murder, as settled by the existing law, would include offences of such very different moral gravity as killing 457 a man deliberately for the sake of robbing him, and killing a man accidentally in an attempt to rob him. On the other hand, offences which ought to have been criminal were constantly declared by the judges not to fall within the definition of the particular crimes alleged, and the legislature has constantly had to fill up the lacunae in the law as interpreted by the judges. ”

“ As to crimes committed against the habitations of men, there are two kinds, viz., burglary and arson.
Burglary is a felony at Common Law, and consists in breaking and entering the mansion house of another in the night time with an intent of committing a felony therein, whether that intention be executed or not. Here, from the best opinions, is to be understood such a degree of darkness as hinders a man's countenance from being discerned. The breaking and entering are points essential to be proved in order to make any fact burglary ”

“ Without the intent to commit a felony, breaking and entering is a bare trespass, which would not be a crime. The felonious intent must exist at the time of the breaking and entering. Hence, if it can be proved satisfactorily to a jury, that a man broke into a house for a night's lodging only, he would not be guilty of burglary. As in homicide, reference must be made to the local statutes for the actual definition of burglary and its punishment in that jurisdiction. ”

“ Take, for instance, the case of a persistent burglar, the great majority of whose robberies are committed under circumstances calculated to create terror and alarm, and upon whom imprisonment, however long, has no restraining effect after his liberation. Take the confirmed highway robber, who to secure his booty does not scruple to use deadly violence upon his victim. It is rare that one short term of imprisonment, or the fear of another, induces him to abandon his criminal course. ”

“ He might retire to bed to be waked up by loud knocking on his front door. If he did not open quickly a rifle shot would be fired through the lock, and if the door did not open then, it quickly would to the blows of hatchets which would follow. A wild gang of drunken brutes would burst into his nice house, smash desks, sideboards, and cupboards, searching for loot. Lucky man if he escaped with the loss of arms, money, and valuables, and not of home and life as well. ”

“ It was proposed that capital offences should be reduced to—1st, high treason; 2nd, murder; 3rd, attempt to murder; 4th, burnings of buildings or ships; 5th, piracy; 6th, burglary; 7th, robbery; 8th, rape. Arson, piracy, burglary, and robbery were to be capital offences only when committed under circumstances or accompanied by acts directly calculated to endanger life. The setting fire to stacks would be no longer a capital offence: the crime, his lordship said, was no doubt a heinous one; but the severity of the punishment had the effect of deterring prosecutions. ”

“ Almost all States include a breaking and entering of a dwelling at night, with intent to commit a felony, among their definitions of burglary. Whatever else the Members of Congress might have been thinking of, they presumably had in mind at least the "classic" common-law definition when they considered the inclusion of burglary as a predicate offense.
The problem with this view is that the contemporary understanding of "burglary" has diverged a long way from its common-law roots. Only a few States retain the common law definition, or something closely resembling it. ”

“ It is pretty certain, too, that the old gentleman hastily put down the iron candlestick before he grasped the box—on the floor, somewhere near the western angle of the balustrade—and in the end, as the combat in one of its uncertain revolutions sweeps past it, the thief frees himself with a desperate effort, snatches it from the floor, and becomes an assassin in actu.
The dull impact of the blow, as the scene is blinded by sudden darkness; the crash of the body against the railing; the dominant jar when the body strikes upon the landing below—and the dark deed is accomplished. ”

“ It is said, and, we do not doubt, with perfect truth, that the reason why the proportion of murders to minor offences is so small—​why the deed so often stops short of the capital offence, even at the risk of leaving a witness of the scene—​is, that there is among the criminal classes the very strongest fear of actually causing death.
They know that the pursuit will be far more keen if a murder be in question, and that, if caught and convicted, a very different doom awaits them. ”

“ Secondly, the crime of murder is contradistinction to ordinary crimes of larceny, or fraud, and is generally the offspring of that kind of savage disposition, which only the fear of death will effectually control. If the opinions of those conversant with prisoners are to be taken, there does exist a salutary fear of the death penalty among the worst class of the population.
A man will rob a house and waylay a traveller, but in the heat of his act, or in the very height of his fury, he will know how to hold his hand and avoid the actual killing of a human being. ”

“ Does capital punishment deter men from committing murder more effectually than perpetual imprisonment would? I believe that 999 out of every 1000 of our convicts even would not commit deliberate murder, although the penalty was only a few months' imprisonment and detection certain, unless under peculiar temptation or provocation. It is a crime naturally abhorrent even to the thief, and the majority of those men capable of committing wilful murder would on the whole, I believe, prefer to be hanged out of their misery, than remain in prison all their life. ”

“ The most profligate among the lower orders of the English people abhor the crime of murder,—even the daring gangs of thieves by whom the metropolis is infested, though they live by daily robberies, invariably refrain from destroying life. Ours is not a blood-thirsty population; theft is unfortunately of common occurrence, and peculations of almost every description are continually practised amongst us; but happily murder is, comparatively, of very rare occurrence, and we have no doubt that all who witnessed the execution of these human boas rejoiced in their punishment. ”

“ I then had plenty of money, and I so much feared the arm of detection, that I returned to New York, joined a gang of low, dissipated, gambling fellows, joined in companionship and agreed to share equally in whatever we should make. We robbed a man on the Harlæm road of $400—he made a desperate resistance. I drew a large knife, which I generally carried with me, and stabbed him, when he fell, exclaiming, 'I am murdered!' Seeing the murder a few days afterwards in the papers, and the Mayor offering $1000, I feared my companion in the crime might be induced to turn States' evidence. ”

“ Upon these reasons it is, that I think putting thieves to death is not lawful; and it is plain and obvious that it is absurd, and of ill consequence to the commonwealth, that a thief and a murderer should be equally punished; for if a robber sees that his danger is the same, if he is convicted of theft as if he were guilty of murder, this will naturally incite him to kill the person whom otherwise he would only have robbed, since if the punishment is the same, there is more security, and less danger of discovery, when he that can best make it is put out of the way ”

“ Dyson is concerned, does not accord in any way with his former acts.
If, however, capital punishment were altogether abolished the completeness of the chain would be destroyed, and offenders whose crimes had already occasioned them to fear penal servitude for life would be encouraged again to resort to violence in order to escape detection.
It has been shown conclusively, on more than one occasion, that the punishment of death, while best for the protection of society, could not be compared in cruelty with the alternatives suggested by the would-be abolitionists. ”

“ In the same year capital punishment was further restricted, and ceased to be the legal sentence for coining, sheep or horse stealing, and stealing in a dwelling-house. House-breaking, as distinguished from burglary, was similarly exempted in the following year; next, the offences of returning from transportation, stealing post-office letters, and sacrilege were no longer punishable with death. In 1837 Lord John Russell’s acts swept away a number of capital offences, including cutting and maiming, rick-burning, robbery, burglary, and arson. ”

“ If death be the best deterrent, and society has the right to inflict it, “Why not bring the coiner and forger to the gallows as of old?” The answer is that murder is a crime so pre-eminently hurtful to society that it is advisable to distinguish it by a punishment above all others, and by one which may be held up before the eyes even of a man who is undergoing the most extreme sentence for a minor offence. ”

“ What the Court holds today must be related to its impact on crimes more serious than ordinary housebreaking, followed by physical assault on six men and robbery of all of them. To understand its full impact we must view the holding in the context of four men who break and enter, rob, and then kill six victims. The concurrence tells us that unless all the crimes are joined in one trial the alleged killers cannot be tried for more than one of the killings even if the evidence is that they personally killed two, three, or more of the victims. ”

“ In case a burglar should attempt violence which appeared likely to lead to murder of any of the inmates of the house, the law would hold the person attacked justifiable in defending his own life, even though in doing so he were compelled to take the life of the assailant ”

“ This being a mistake of fact, is not a criminal offence. But if another man, mistaking the law, thinks that he has a right to kill a person who is excommunicate or an outlaw, and acts upon that belief, he would be liable to be convicted for wilful murder. It may be observed that the right of a householder to kill a burglar in his dwelling-house is not an unqualified right; for in that case, a private individual would be empowered to inflict a greater punishment than would be awarded by the law after conviction. ”

“ We do not hesitate to declare that an organised system of murder has been and is still carrying on in the metropolis, which makes humanity shudder, which cannot be paralleled in any other civilized country of the globe, and which, unless the legislature will rouse itself, and inflict the same punishment upon the receiver of the stolen property as upon the thief, will, in a short time, go to undermine all the happiness of social life. ”

“ Can it be said that, in order to evade punishment, the murderer has only to hide or destroy the body of the victim, or sink it into the sea? Then, if he is not seen to kill, the law is powerless and the murderer can snap his finger in the face of retributive justice. If this is the law, then the law for the highest crime is a dead letter. The great commonwealth winks at murder and invites every man to kill his enemy, provided he kill him in secret and hide him. ”