Kik-mer's Case
Kik-mer's Case of 1836 was an important case in the development of Themiclesian law in self defence and defence of property.
Kik-mer, a proprietor of his own house, observed that a thief entered his house and was carrying off silverware and handed the same off to an accomplice; without contacting the authorities, Kik-mer asked his guard to shoot the thief with his musket, which killed the thief. When Kik-mer and his guard were brought to answer for the homicide, the argument that a nocturnal intruder could be killed without liability was overturned on the grounds that his house was so bright as to allow him to see what the thief was doing. As there was no real darkness that could justify the use of a deadly weapon against an intruder, Kik-mer's guard was executed; Kik-mer was seized as a slave into the Crown's estate and lost his property as an instigator to murder.
Case
Judgement
故歲乙酉在六月 疾海眔戍者勊夕居疾海室 聞盜荷入自室北 疾海其察盜出白金器以授它盜顗 弗告 疾海而命戍者勊荷射 荷以死 眔主者比勊賊殺人也 求鞠事 勊勘盜既夕披入室 為乏法 律曰登時殺而毋論 曰律白弗應論 廷報曰雖夕 既設火 室明 乃盜出白金器以見疾海也 律曰既夕披入室殺毋論 室晦也 勊當賊殺人 應棄市 勊曰不賊 不應論 今雝守當論勊賊殺人或不應勊論 故請
On day Qrut-lu, in the Sixth Month, Kik-mer and his guard Krek were at Kik-mer's house at night, hearing the thief Har entering from the north of the property. Kik-mer observes the thief steals silverware and handed the same to another thief Teq. They did not report thus. Kik-mer then required his guard Krek to shoot Har, and Har thereby died. When the responsible officer prosecuted Krek for murder, Krek asked to try the matter. Krek questions that the thief has entered the property by force at night, and [that is] unlawful. The law says if [the intruder is] killed immediately, and there ought be no prosecution. The judges said, though it was at night, a fire was established, and the property was lit. That is why the carried out silverware could be seen by Kik-mer. The law indeed says a person who breaks into a property at night may be killed and not convicted, but that is to say the property is dark. Krek's guilt is of murder and ought to be strangled. Krek says he has no guilt and should not be convicted. So, now, if [Krek] should be convicted by the Viceroy of Qwang for guilt of murder, or should he be not convicted...
廷㷉 勊當廷論
The Imperial Court of Appeal: Krek shall be judged like the judges judge.
Influence
Ancient Themiclesian law from Antiquity contained a long-standing statute that a person who breaks into a property at night may be killed immediately by the property owner without liability. The primary condition was that the person must have broken into the property, which implies the property must have been fortified in some way though not necessarily an elaborate way; the homicide must also occur "immediately", as soon as the intruder is noticed, which is held to excuse the property owner for acting at a time when the intention of the intruder is difficult to discern. Nevertheless, the act of homicide is considered criminal by nature in Themiclesian law, so the excuse of killing a nocturnal intruder only shields the manslayer from liability and does not define homicide (even under these conditions) as something lawful. In Kik-mer's case, however, the judges were unpersuaded that Krek (the guard) could be satisfied reasonably that there was any danger arising from the intruder, whose only actions (for as long as they could see) were the removal of silvers, so the excuse could not be maintained.
The Drinker's Case of 1828 had already circumscribed the excuse of self-defence to the cases where the measures undertaken in self-defence were necessary. That is, certain measures may be undertaken in self-defence but are not necessary for self-defence; in such cases, the excuse of self-defence cannot be maintained. Drinker's Case involved a person travelling home only to see a burglar entering his house just before he did. Rather than turning away, the proprietor followed the burglar into the house and clubbed the burglar to death. In this case, the act was certainly undertaken in self-defence, as the burglar came armed and thus could be reasonbly presumed to intend violence on the proprietor should he have been found; however, the proprietor there and then had the clear option of simply not entering his property and thus redress this danger, and so his actions later could not be maintained as necessary actions for self-defence. As a result the proprietor was convicted and executed. Tam J said,
The law knows only too well all defend their lives with what means they have, and to the fullest extent thereof they are not faulted by the law. Yet not even the law entirely abandons the guilty to the hands of the innocent, who yea the law prefers but to whom it does not give liberty. It shows preference to the innocent by holding harmless that which is required to defend their lives, and even the wicked shall be protected against anything other than the bare need to stop their wickedness in the moment: the wicked are innocent of everything except their wickedness.