526 P.2d 241 (Cal. 1974)
Don Ceballos was found guilty by a jury of assault with a deadly weapon (Pen. Code, § 245). Imposition of sentence was suspended and he was placed on probation. He appeals from the judgment, contending primarily that his conduct was not unlawful because the alleged victim was attempting to commit burglary when hit by a trap gun mounted in the garage of defendant's dwelling and that the court erred in instructing the jury. We have concluded that the former argument lacks merit, that the court did not commit prejudicial error in instructing the jury, and that the judgment should be affirmed.
Defendant lived alone in a home in San Anselmo. The regular living quarters were above the garage, but defendant sometimes slept in the garage and had about $2,000 worth of property there. In March 1970 some tools were stolen from defendant's home. On May 12, 1970, he noticed the lock on his garage doors was bent and pry marks were on one of the doors. The next day he mounted a loaded .22 caliber pistol in the garage. The pistol was aimed at the center of the garage doors and was connected by a wire to one of the doors so that the pistol would discharge if the door was opened several inches.
The damage to defendant's lock had been done by a 16-year-old boy named Stephen and a 15-year-old boy named Robert. On the afternoon of May 15, 1970, the boys returned to defendant's house while he was away. Neither boy was armed with a gun or knife. After looking in the windows and seeing no one, Stephen succeeded in removing the lock on the garage doors with a crowbar, and, as he pulled the door outward, he was hit in the face with a bullet from the pistol.
Stephen testified that he intended to go into the garage “for musical equipment” because he had a debt to pay to a friend. His way of paying that debt would be to take defendant's property and sell it and use the proceeds to pay the debt. He testified he “wasn't going to do it for sure, necessarily,” that he was there “to look around,” and that he did not know if he would have actually stolen.
Defendant, testifying in his own behalf, admitted having set up the trap gun. He stated that after noticing the pry marks on his garage door on May 12, he felt he should “set up some kind of a trap, something to keep the burglar out of my home.” When asked why he was trying to keep the burglar out, he replied, “Because somebody was trying to steal my property and I don't want to come home some night and have the thief in there. Usually a thief is pretty desperate and they just pick up a weapon if they don't have one and do the best they can.” When asked by the police shortly after the shooting why he assembled the trap gun, defendant stated that he did not have much and wanted to protect what he did have.
As heretofore appears, the jury found defendant guilty of assault with a deadly weapon (Pen. Code, § 245). An assault is "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another" (Pen. Code, § 240). Defendant contends that had he been present he would have been justified in shooting Stephen since Stephen was attempting to commit burglary (Pen. Code, § 459), that under cases such as United States v. Gilliam a person had a right to do indirectly what he could have done directly, and that therefore any attempt by him to commit a violent injury upon Stephen was not unlawful and hence not an assault. The People argue that the rule in Gilliam is unsound, that as a matter of law a trap gun constitutes excessive force, and that in any event the circumstances were not such as to warrant the use of deadly force.
The issue of criminal liability where the instrument employed is a trap gun or other deadly mechanical device appears to be one of first impression in this state, but other jurisdictions have considered criminal and civil liability for death or injuries inflicted by such a device.1 At common law in England it was held that a trespasser, having knowledge that there are spring guns in a wood, cannot maintain an action for an injury received by accidentally stepping on the wire of such a gun (Ilott v. Wilkes). That case aroused such protest that it was abrogated seven years later by statute, which made it a misdemeanor to set spring guns with intent to inflict grievous bodily injury but excluded a spring gun set between sunset and sunrise in a dwelling house for its protection.
In the United States, courts have concluded that a person may be held criminally or civilly liable if he sets upon his premises a deadly mechanical device that kills or injures another (see cases such as Katko v. Briney; State v. Plumlee; State v. Beckham; State v. Childers; Marquis v. Benfer; Pierce v. Commonwealth). However, an exception has been recognized where the intrusion is, in fact, such that the person, were he present, would be justified in taking the life or inflicting the bodily harm with his own hands (see United States v. Gilliam and other authorities). The phrase “were he present” does not hypothesize actual presence but is used to express the principle that a person may do indirectly that which he is privileged to do directly.
Allowing persons to employ deadly mechanical devices imperils the lives of children, firemen and policemen acting in the scope of their employment, and others. Where the actor is present there is always the possibility he will realize that deadly force is not necessary, but deadly mechanical devices are without mercy or discretion. Such devices are silent instrumentalities of death; they deal death and destruction to the innocent as well as the criminal intruder without the slightest warning. The taking of human life or the infliction of great bodily injury by such means is brutally savage and inhuman. It seems clear that the use of such devices should not be encouraged. Moreover, whatever may be thought in torts, the exception to liability for death or injuries inflicted by such devices is inappropriate in penal law because it does not prescribe a workable standard of conduct; liability would depend upon fortuitous results. We therefore decline to adopt that rule in criminal cases.
Furthermore, even if that rule were applied here, defendant was not justified in shooting Stephen. Penal Code section 197 provides that homicide is justifiable in certain circumstances, including when resisting an attempt to commit a felony or when committed in defense of habitation, property, or person against one who manifestly intends or endeavors by violence or surprise to commit a felony. Since homicide is justifiable under the circumstances specified in section 197, an attempt to commit a violent injury upon another under those circumstances is likewise justifiable.
By its terms subdivision 1 of Penal Code section 197 appears to permit killing to prevent any “felony,” but in view of the large number of felonies today, many of which do not involve danger of serious bodily harm, a literal reading is undesirable. People v. Jones read section 197 in light of the common law and limited the justification to felonies that are “some atrocious crime attempted to be committed by force.” We adopt that approach. The term of art in common law requires that the felony be of a forcible and atrocious character—examples include murder, mayhem, rape and robbery—crimes from which human life or personal safety from great harm either is or is presumed to be in peril.
Burglary has been included among such crimes in some authorities, but in view of the wide scope of burglary under Penal Code section 459, as compared with the common law definition, it cannot be said that under all circumstances burglary under section 459 constitutes a forcible and atrocious crime.2 Where the character and manner of the burglary do not reasonably create a fear of great bodily harm, there is no cause for exaction of human life or for the use of deadly force. The character and manner of the burglary could not reasonably create such a fear unless the burglary threatened, or was reasonably believed to threaten, death or serious bodily harm.
In the instant case the asserted burglary did not threaten death or serious bodily harm, since no one but Stephen and Robert was then on the premises. A defendant is not protected from liability merely by the fact that the intruder's conduct is such as would justify the defendant, were he present, in believing that the intrusion threatened death or serious bodily injury. There is ordinarily the possibility that the defendant, were he present, would realize the true state of affairs and recognize the intruder as one whom he would not be justified in killing or wounding.3
We thus conclude that defendant was not justified under Penal Code section 197, subdivisions 1 or 2, in shooting Stephen to prevent him from committing burglary. This conclusion accords with dictum indicating there may be no privilege to use a deadly mechanical device to prevent a burglary of a dwelling house in which no one is present.
Defendant cites Nakashima v. Takase, a civil damages case in which a proprietor, secreted inside his premises at night, shot intruders without warning and the court found justifiable homicide under section 197. That case differs on its facts from the present one: among other things, the proprietor was present and secreted inside, whereas here no one but the would-be burglars was on the premises when the gun was fired. People v. Silver likewise does not aid defendant; Silver concerned different facts and issues and does not resolve the present question of the nature of the felony coming within the justification.4
We recognize our position differs from Restatement Second of Torts § 143(2), which permits deadly force to prevent felonies “involving the breaking and entry of a dwelling place,” but in view of the supreme value of human life we do not believe deadly force can be justified to prevent all felonies of that type, including ones in which no person is, or is reasonably believed to be, on the premises except the would-be burglar.5
Defendant also argues justification under subdivision 4 of Penal Code section 197, which applies when homicide is necessarily committed in attempting, by lawful means, to apprehend a person for a felony. That argument fails because the word “attempting” carries the idea of acting for the purpose of apprehending, and an attempt requires the specific intent to accomplish the apprehension. Here no showing was made that defendant's intent in shooting was to apprehend a felon; his testimony and extrajudicial statement indicate his intent was to prevent burglary, protect property, and avoid the possibility of injury upon his return.
Defendant does not and could not properly contend that the intrusion was such that, were he present, he would be justified under Penal Code §§ 692 and 693 in using deadly force. Section 693 authorizes resistance sufficient to prevent an offense only to prevent an offense against the person or to prevent an illegal attempt by force to take or injure property. Subdivision 1 plainly does not apply because there was no attempt against defendant's person; subdivision 2 does not apply because at common law deadly force to prevent a felony was justified only if the offense was forcible and atrocious. The asserted attempted larceny or burglary here was not such a crime because it did not threaten death or serious bodily harm.
Defendant also cannot rely on Civil Code section 50 to use deadly force to protect property. That section must be read in light of common law, and generally deadly force could not be used solely for protection of property. Preservation of human life and limb from grievous harm is of more importance to society than protection of property. Thus defendant was not warranted under Civil Code section 50.
Although older common law recognized an exception allowing extreme force to prevent dispossession of a dwelling or to resist an attempt to burn a dwelling, or to protect a dwelling against a burglar in some circumstances, the asserted burglary in this case was not of such character as to warrant deadly force.
We conclude as a matter of law the exception to liability for injuries inflicted by a deadly mechanical device does not apply under the circumstances here. Defendant also contends the court erred in giving certain instructions regarding his defense of justification and in failing to give an instruction he requested. Since that defense cannot be sustained as a matter of law, defendant was not prejudiced by the alleged instructional errors.
Defendant further argues he was committed without probable cause because no showing was made at the preliminary hearing that he set up the trap gun or was the sole occupant of the house. Because the preliminary hearing transcript was not made part of the record on appeal, this question cannot be decided on the present record. Moreover, defendant did not make a Penal Code section 995 motion based on that ground and is therefore precluded from raising the objection now.6
The judgment is affirmed.
WRIGHT, C.J., and McCOMB, TOBRINER, MOSK, SULLIVAN and CLARK, JJ., concur.