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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(V8) 1 CLR 103
1909 March 5
(ASSIZE COURT OF NICOSIA.)
[TYSER, C.J., BERTRAM, J., HOLMES, P.D.C., IZZET EFFENDI AD MITZIS, JJ.]
REX
v.
DERVISH HAJI OMER.
CRIMINAL LAW-HOMICIDE-HOUSEHOLDER PREVENTING ENTRY OF HIS PREMISES BY NIGHT-HOUSEHOLDER SHOOTING THIEF FOUND ON PREMISES AT NTGHT-OTTOMAN PENAL CODE, ART. 187.
Art. 187 of the Ottoman Penal Code, (which declares that a man is justified in killing another to prevent him from climbing or breaking into his dwelling house by night) does not apply to the case where a man kills a thief whom he finds by night on his premises and who has already effected an entry.
The accused in the middle of the night discovered a man, who had scaled the wall of his courtyard, engaged in stealing the sheep in the courtyard, and thereupon shot and killed him.
HELD: Not justified under Art. 187.
The accused was charged with homicide without premeditation.
It appeared from the evidence that one night he was roused by his wife and through the window of his room descried a man in his yard collecting his sheep apparently with a view to stealing them. He called to the man but receiving no answer fired and killed him. He then ran and reported the matter to the Mukhtar. It was then discovered that the deceased was a notorious thief and bad character; he was barefoot and was carrying a knife; he had effected an entrance into the yard by scaling the wall by means of a plough which he had rested against it.
Bucknill, K. A., for the Crown.
Paschales Constantinides for the Defence. This case is at least within the spirit of Art. 187. The corresponding article of the French Penal Code (Art. 322) is in practice interpreted as including this case.
Judgment. THE CHIEF JUSTICE: Art. 187 of the Ottoman Penal Code, literally translated, is as follows:-
"Acts of wounding, striking and killing during the night are excused, if they take place for the purpose of preventing a person when that person takes and puts up a ladder to a man's house or shop or room, or when he destroys by force places which are under key, or when he breaks the doors or pierces the walls of an inhabited house or places appurtenant to it."
The killing in this case took place not for the purpose of preventing the man from entering, but after he had effected an entry, and is consequently not within the terms of the article.
The question whether a man is justified in killing another under such circumstances as the present must depend upon the principles which we have already explained in the case of R. v. Christodoulo Sava, supra p. 99 and it is plain that the act of the accused in the present case is not capable of justification under those principles.
Under the circumstances though we have every sympathy with the accused, we have no alternative but pass on him the sentence prescribed by Art. 174 of the Penal Code.
Sentence: Fifteen years hard labour.