[With apologies -- and thanks -- to my old professor, Lon Fuller, the author of the infinitely more artful and compelling "The Case of the Speluncean Explorers."]
In the Supreme Court of Wicket Gate
Darwin Term, 3018.
People of Wicket Gate v. John Bunyan, Defendant.
Case No. 40324
Appeal from the Court of Despond Slough
The defendant, having been indicted for the crime of felony murder in the course of commission of other felonies, to wit, criminal trespass and grand larceny, was convicted and sentenced to terminal deactivation by the Court of Despond Slough. Defendant appeals. The facts appear sufficiently in the opinion of the Chief Justice.
Vanity, C.J. The defendant Bunyan was formerly an ordained priest in a religious denomination known as The Enlightened Church, or “TEC” for short. In the month of Dawkins, 3017 he served as the head of a TEC parish in Despond Slough, called “the Church of the Good Pilgrim.” Previously, in the year 3016, the churchgoers of that body had voted unanimously to withdraw from TEC, and to realign with a different religious organization. Upon learning of the parish’s decision, the Diocese to which it had formerly belonged brought a lawsuit, in which it claimed that all the real and personal property of the parish reverted to it following the vote to realign.
The Court of Despond Slough resolved the lawsuit by summary judgment entered in winter 3017. It held that a certain provision in the canons of TEC, known as the “Tennis Canon” (after the ancient game in which “love” means nothing), meant that the property of the Church of the Good Pilgrim automatically reverted to the Diocese upon the vote for realignment. It ordered that the defendant and his parish vacate the church property within 24 hours following the entry of judgment.
The defendant and his parishioners engaged in herculean efforts to conform to the court’s decree, which specified that they not remove any personal property belonging to the church from the building. The decree took effect on a Friday at 10:00 a.m., and by the following Saturday morning there was no one left in the church, and the defendant had removed all of his personal belongings from the property, as well. As the last one to leave, he left the keys as he had been instructed, inside the front door.
However, it had been the long-standing practice of the parish to serve soup and supper to homeless persons every Saturday evening in the parish kitchen. When the defendant closed up the building at 9:00 Saturday morning, and left the keys inside, he also put up signs to direct the homeless people, who were accustomed to come there for a hot meal, to a new location which was approximately twelve city blocks away.
Promptly at 10:01 a.m., an officer of the Diocese came to the church to verify that it had been vacated in accordance with the terms of the court’s judgment. Upon seeing the signs left behind to direct the homeless, he tore them down. He then took the keys he found inside the door, locked the church, and departed.
Approximately around 2 p.m. that afternoon, it began to snow heavily in Despond Slough. The snowfall continued to increase, and was accompanied by gusts of wind up to 25 miles per hour. Drifts of four feet and over began to accumulate, and ploughs had difficulty keeping the streets navigable. The defendant Bunyan became concerned that the homeless, who would expect to find a hot meal for them at the church, might not be able to make their way to the new location where they were to be served. Accordingly, just before 5 p.m. that Saturday evening, he borrowed a four-wheel-drive vehicle from another parishioner, and made his way back to the church.
What he found when he arrived made him feel justified in his decision to return. A group of six or so homeless people stood shivering in the meager shelter of the porch of the church. Outside the wind howled, and the snow drifted. The defendant could see a few more people making their way through the drifts to the church, and he went to give them assistance. Soon there were fourteen people, plus the defendant, gathered before the front door of the church.
The wind increased, and the snow blew everywhere, blinding anyone who dared to venture forth. The defendant saw not only that his signs had been torn down, but that it would be impossible for him to lead this motley gang through the blizzard to the substitute location, twelve blocks away. He despaired about what he could do.
Then he remembered that a spare key to the building was kept buried at the foot of a statue of St. Francis, which stood in the garden to the left of the entryway. With the help of one of the more vigorous of the homeless persons, he was able to dig down though the drifts to the base of the statue, and recover the key.
No sooner had he opened the door and led the homeless inside, through the sanctuary and into the parish hall beyond, than he realized that there was still food remaining in the cupboards, because they had obeyed the court’s order to the letter, and had taken nothing of the stores that remained. Soon he had the range going in the parish kitchen, with a big pot of chicken noodle soup bubbling away, which he dished out to the assembled homeless, along with some ravioli which he had heated up. (By this time, another seven homeless persons had managed to make their way through the howling blizzard to the church.)
After seeing to it that everyone was fed, the defendant perceived, on venturing outside, that the blizzard conditions would make it impossible for any of the homeless to leave the church that night. He turned on the heat in the sanctuary, and told them that they should make their bed in the pews that night, and that he would return with more food, and transportation for them, in the morning, after the roads were plowed. After saying prayers with them, he left them in the sanctuary a little before 7:00 p.m., and made his way back to his vehicle. It was only with the greatest difficulty that he was able to return to his own home that night, before the worst of the storm set in.
Unbeknownst to the defendant, some of the homeless began to explore the church as soon as he left, and breaking into a cabinet, they found the supply of communion wine. This was a brand of Port having, as was standard for such a drink, 19% alcohol by volume. According to the forensic evidence, the twenty-one homeless persons in the building that evening managed to go through the church’s entire three-month supply of communion wine in a period of less than two hours.
The remaining facts, desultory to relate, must nevertheless be set forth here for the record. The Diocese, knowing that it would take possession of the property on Saturday morning, and that there were no uses contemplated for the property in the foreseeable future, had given orders to the utility company, a week before, that the power to the premises be turned off later that day. The power company, in accordance with its customary practice, had programmed a crew to make the shutoff at 5:00 p.m. The blizzard conditions prevented that order from being carried out, as the resulting power outages required their crews to attend to more urgent matters elsewhere. However, the agent for the diocese who had locked the church happened to pass by the building, in making his way home (after a concert) slowly through the storm, at what he says was just after nine o’clock. Seeing lights on through the stained glass windows, he stopped his car, made his way to side of the church where the utility connection panel was located, and after taking the cover off with a pocket screwdriver, he threw the master switch, shutting off all power to the building. About three hours later, a tree downed by the weight of the snow fell across some power lines, and the entire neighborhood was rendered dark. Power was restored to the area at around 4 a.m. the next morning, but since the church’s master switch had been turned off, it remained without power.
In the morning at around 8 a.m., the defendant and three others of his parish managed to make their way in four vehicles through the snowdrifts to the church building. Upon letting themselves in with the spare key, they discovered nineteen frozen corpses lying in various positions as they had fallen after being overtaken with the effects of the communion wine. (The bodies of two more were subsequently found in the drifted snow; the medical examiner theorized that they had woken up freezing and tried unsuccessfully to escape.) The temperature inside the sanctuary was later measured at three degrees Fahrenheit, while outside it was well below zero. The pipes in the parish kitchen had burst as well. On slowly thawing the bodies, it was determined in each case that the genetic damage was probably irreparable; in addition, the deactivations happened to fall within the normal stabilization quota for the month of Dawkins, and so were allowed to become terminal.
The Diocese disclaimed all responsibility for the sad end suffered by the homeless men, even though it was unquestionably the owner of the premises when they occurred, and even though it was the act of its agent which directly resulted in the loss of power. (The medical examiner testified that the period the power was out probably would not have caused the men to freeze, but he could not be certain.) Since the power company had been unable to carry out the disconnect order on Saturday, the power would have otherwise remained on until Monday morning, and the decedents would most likely not have frozen. The decedents had no known relatives, and there were no civil proceedings brought against the Diocese on account of their involuntary deactivations. The district attorney of Despond Slough asked the grand jury to indict the defendant, however, with charges of criminal trespass and grand larceny (involving the destruction or taking of more than $250 in church property -- chiefly communion wine). Because the deactivations of the homeless persons occurred in the course of the commission of those crimes, the defendant was also charged with felony murder, which carries a penalty of terminal deactivation. From that conviction the defendant appeals.
During the deliberations of the jury in this case, the foreman (who happened to be an attorney) inquired of the court whether the jury might simply find the facts of the case (as above given) by a special verdict, and leave it to the court to pronounce judgment upon those facts as to whether the defendant was guilty under the law as charged. The trial judge declared the defendant guilty on the facts as so found, and decreed the deactivation penalty as required by the felony murder statute. After the jury was discharged, they joined together in an unusual appeal for clemency to the Chief Executive -- in which the trial judge himself later joined. The Chief Executive is apparently awaiting our disposition of this appeal before acting.
The jury found the facts in accordance with the evidence, which was not disputed. Under those facts, the defendant committed criminal trespass, which is defined as the willful but unlawful entry onto the premises of another without permission. Ordinarily, criminal trespass is a misdemeanor, unless it is accompanied by the willful destruction of property having a value of $250 or greater, in which case it becomes a felony. The prosecutor charged the defendant also with the felony of grand larceny, for taking unlawfully property (food and wine) belonging to the Diocese and having a value of $250 or more. The parties stipulated that the six gallons of communion port wine consumed had a value of $240.00 (the wine was imported), and that the cans of soup and ravioli consumed had a value of $15. Even though the defendant himself dispensed only $15 worth of food, by leaving the homeless men in the church unsupervised, he must be regarded as responsible for the loss of communion wine as well. The trial judge thus found the defendant guilty of the commission of two felonies.
Next, the trial judge applied our felony murder statute, which reads very simply: “An individual who commits a felony is liable as in the case of murder in the first degree for the terminal deactivation of any person which occurs in the course of the felony, whether directly caused by the perpetrator of the felony or not.” There being no question as to the deactivations of the men, or as to the commission of the felonies, the only conclusion is that the conviction for felony murder was warranted on these facts, as well.
This case cries out for the exercise of clemency. The defendant is 29, has a wife and three young children, and was admittedly acting out of only the most Christian of motives. But clemency is a function that can be exercised by the Chief Executive only after the judiciary has done its function, and convicted a defendant under the law. I am confident that the Chief Executive will see fit, in view of the weight of popular opinion expressed in the press, on radio, and on television in the past months since the case came to trial, to grant a pardon that will be sufficient to spare this young man’s life.
But first we must provide the Chief Executive with a convicted defendant for him to pardon. Therefore, for the reasons stated above, I vote to affirm the judgment of conviction below.
* * *
Devine, J. This is a case that cries out for justice -- but not the kind of justice that we, as humans, are wont to dispense. For feeding twenty-one starving, homeless men, and for seeing to it that they had beds and shelter in the midst of a raging blizzard, not only is the defendant convicted of two “felonies”, but he also receives the ultimate sanction of terminal deactivation (“TD”), meaning that unlike normal persons in our society, he is not eligible for genetic modifications to extend his lifespan indefinitely, and instead is programmed to expire painlessly within a time span of 12 hours. This penalty comes into play only because of the unfortunate deactivations -- not by the defendant’s hand, but by a cruel combination of factors over which he had absolutely no control -- of those whose lives he sought to save. Surely TD is too harsh a human remedy to apply to such as case as this!
I cannot vote to convict the defendant of violating human law, because his actions resulted from his harkening to a higher (and dare I say, superior?) law -- the law of nature, and of his God. That law, which he testified eloquently is “written on our hearts”, dictated that he leave no homeless soul to perish in the blizzard that raged outside. At hand -- in his hand, in fact, since he knew where there was a key -- was a means to food, shelter and heat. How could he deny those shivering, homeless men that which he was able, at that very moment, to supply? The scenario is so entirely fortuitous that -- but for its ultimate tragic outcome -- it could almost cause an agnostic to begin believing that there is indeed a “God”, however one might individually define that concept.
Natural law trumps human law, and it has done so from the dawn of civilization. Long ago, in a country far away from ours, there was a declaration that all men were entitled from birth to “life, liberty, and the pursuit of happiness.” And even 2,500 years before that distant time, the Greek playwright Sophocles, in his classic retelling of the legend of Antigone, expressed the notion that a law existed which was higher than man’s, and which must be obeyed even if man’s law forbade it. Such is the law of Nature: by its very essence, it takes precedence over the puny laws of men.
But even were I reluctant to invoke natural law to reverse the conviction of this godly man, there is still an alternative ground upon which I may do so. For if one considers why there is such a law as the felony murder statute, one sees at once that it has no application to the facts of this unusual case. The purpose of the statute is clear -- it is to deter the commission of felonies by force of arms. The odds are overwhelming in such circumstances that an innocent bystander, if not a police officer, will suffer TD. And so it is only fair that the one who begins the fray come under the same punishment.
In this case, however, there was no use of any force whatsoever -- no gun, and no knife (a crowbar was used, but to get at the wine). The priest let himself in with a spare key buried on the church grounds. The food was used for the purpose for which it was stored there in the first place -- to feed the hungry. (The Diocese is hardly in a position to complain that the food was misused, or converted to a purpose different from that for which it was intended.) Never mind the wine, which the homeless men stole on their own -- if you subtract the value of just the food that was properly consumed, then there was no “grand larceny”, and no felonious trespass, either. And without those felonies as a basis, there can be no charge of felony murder.
For all of the above reasons, therefore, I would reverse the convictions below.
* * *
Formalist, J. This is not a difficult case, and should give no one pause. Nor is it an occasion to trot out hoary invocations of “natural law,” as my brother Devine finds. We are a court of men, and therefore constrained to enforce the laws of men. If there even is such a thing as “natural law,” then by definition its enforcement and application are the task of a higher court, and not this one.
Nor can I sanction my brother Devine’s divination of the “purpose” behind the felony murder statute. One could just as well conclude that its purpose was to urge the commission of armed misdemeanors, or to punish the occurrence of random accidents. One must, instead, confine one’s analysis to the laws as written, and as enacted by the legislature.
In this case, the applicable statute is as follows: “An individual who commits a felony is liable as in the case of murder in the first degree for the terminal deactivation of any person which occurs in the course of the felony, whether directly caused by the perpetrator of the felony or not.” Now the charge is that there were two felonies committed: first, a criminal trespass resulting in the destruction of property worth more than $250, and second, grand larceny of property having the same value. We must first determine whether the facts as found by the jury, and by which we are thus bound, will support the charges in each instance.
Begin with the charge of trespass: undoubtedly it began when the priest unlocked the door and let the homeless men in. He had no lawful right to open the door himself or to enter in without permission, as the church had been adjudicated to be the property of the Diocese. Still less did he have the right to let the twenty-one men in -- unless he was engaged in an act of rescuing them from immediate peril. Our cases over many years have developed the concept of “necessity” as a defense to the charge of trespass. (People v. Dyer; People v. Driven; People v. Exigent.) Because the jury was asked to find only the facts, it was never instructed on this defense, and the learned trial judge appears to have overlooked it in his application of the law to the facts.
Could one imagine a greater case of necessity than that which we have here before us? There are twenty-one men, each lured by the offer of warm food to seek shelter in the only church they ever knew that had helped them, week in and week out. Through no fault of theirs, the church has been handed to another owner, who decides on the spur of the moment to discontinue the long-standing practice. Not only that, but the new owner decides to tear down the very signs which would have redirected the men to where they could have gotten the warm meal they sought. The men have no idea of what has happened, and stand around helplessly while the storm increases in intensity all around them. Soon it is impossible for them all to walk the twelve long blocks to shelter without the risk of being terminally deactivated. What is the solution?
The solution is ready at hand, thanks to the concern of the defendant, who was worried about whether the men would be able to make their way through the storm. (My brother Obstinate suggests that the defendant could have begun ferrying the first arrivals as soon as they had gotten there, but that argument mistakes the point in time at which the necessity arose, which was only when there were too many to be transported without grave risk to those who would have to remain.) With the weather well below freezing, the wind howling about their heads, there was no other option available but to enter the church and use it as shelter to ride out the fury of the storm. This is a case of necessity, pure and simple, and on these facts, it is a complete defense to the charge of trespass.
We still must deal with the charge of grand larceny. Apart from the trivial amount of food consumed, there was, indeed, valuable property consumed and taken as well. But who did the consuming and the taking? Not the defendant; he was not on the premises when the men searched for and found the wine. My brother Vanity, in his shameless ploy to appeal to the sympathy of the Chief Executive in order to extract us from the unpleasant consequences of adjudicating this case, would hold the defendant vicariously liable for the homeless men’s crime. Vicarious liability, however, is more often a creature of the civil, than of the criminal, law.
Even if we were to assume that the defendant could be held criminally responsible for the theft of the communion wine by those whom he left in a position to commit it, where does that leave the case? How does the felony murder statute come to apply in these circumstances? For by its very language, it requires that TD occur “in the course of the felony.” Did any of the men suffer TD in the course of the theft of the wine? All the medical evidence was to the contrary; the cause of their TD was uniformly the near-zero temperatures inside the church -- which came to pass only many hours after its power had been shut off, and still more hours after the men had completed their theft of the wine.
The felony murder statute, thus by its own terms, does not apply. And given that fact, the grounds for finding the defendant vicariously guilty of grand larceny fall away, as well. I would vote to reverse the conviction and sentence of TD, as well as the conviction for criminal trespass. I would affirm only the conviction for larceny, but would reduce it to petty larceny, a misdemeanor.
Although I vote to find the defendant guilty in one respect, in my capacity as a private citizen I take this opportunity to address the Chief Executive, and urge that he exercise his power of clemency in this case, and pardon the defendant of whatever offenses of which this Court eventually may convict him. (As I write these words, Justice Pliable has not yet informed us as to how he will vote.) The defendant may have violated one of our laws, but if he did so, it was in a trivial and non-obvious sense. We may be constrained to apply the law as it is written, but if the result is a harsh one, then that is what the power of executive clemency was designed to mitigate.
* * *
Obstinate, J. I cannot agree with any of my brothers’ views on this case. The Chief Justice feels impelled to convict just so that a sentence of TD will impel the Chief Executive to grant a pardon. Can anyone explain to me how a government could command respect that required one branch of it to pronounce a sentence of TD just so that a different branch may set it aside?
My brother Devine seeks recourse in the natural law, but I do not know what that is. In my experience, one man’s “natural law” is another man’s “categorical imperative.” I cannot invoke it here, because even though it may be “written on my heart”, I cannot read it -- at least, read it sufficiently to be able to apply it as a judge. Brother Devine also purports to divine the statute’s “purpose” to arrive at a reversal, but I agree with the criticism of that approach made by my brother Formalist. It is all too easy to subvert the means to the end in such an analysis.
However, I cannot agree with my brother Formalist’s application of the doctrine of “necessity” to these facts. The reason is that when the defendant first arrived on the scene, there were just six men waiting, and the defendant had a four-wheel-drive vehicle with which to carry them to the new soup kitchen. He could have easily done so, and then returned as necessary to find and bring back the others as they arrived. Had he followed that obvious course, there would have been no trespass, no larceny, and no TD’s. The learned trial judge saw no reason for application of the doctrine of necessity here, and I cannot, either.
But where I most strongly must depart from the judgment of my brethren is in upholding the conviction for grand larceny. No matter how one views these facts, the theft of the communion wine was the last thing the defendant could have been expected to foresee. The wine was kept in a locked cupboard in the equally locked sacristy, and the men used a crowbar which they conveniently found in the closet in the kitchen to break into these spaces. The defendant cannot be made criminally liable for these forcible acts, committed independently on their own, and while the men were warm and sober.
And for the reasons similar to those stated by my brother Formalist, I cannot uphold the application of the felony murder statute to these facts, either. The trespass in question was the defendant’s, not the homeless men’s. The latter were invited into the building, albeit without authority. Nevertheless, because the men had no way of knowing this, their act could not fulfill the requirements of a trespass, since the offense requires a knowing invasion of another’s property without permission. (E.g., People v. Stumble.) And since the defendant’s trespass ceased when he left the building, the men’s TD cannot be said to have taken place “in the course of the felony.”
For these reasons, I would vote to reverse the conviction of grand larceny, and the conviction of felony murder. I would affirm only the conviction of trespass, but would reduce it to a misdemeanor.
* * *
Pliable, J. My brothers stalwartly refuse to address the real problem in this case, while hiding behind all manner of legalistic argument. All of us know how unpopular the decision below was; all of us read the newspapers, listen to the talk radio shows, and watch television. During the oral argument, not even the stoutest doors and walls of our courtroom could keep out the distant roars and chants of the protestors outside: “Free the priest! Free the priest!”
My brother Vanity engages in a particularly objectionable flapping of his judicial robes at the Chief Executive, and admits that he votes to convict only so that the Executive will be forced by the weight of popular opinion to grant a pardon. My brother Formalist, while still finding the defendant guilty of petty larceny, addresses the Executive in what he says is his “capacity as a private citizen” to urge him to grant a pardon even as to that minor offense. (I am obliged to point out that my brother Formalist’s “private address” to the Executive will nonetheless be printed in our official reports, at the public’s expense.)
These public appeals for clemency ring hollow, and must be exposed for the blatant pandering to popular sentiment which they represent. What my brothers Vanity and Formalist do not include in their opinions is the information to which I became privy somewhat by accident, and which I shared with my brothers during our deliberations: the Chief Executive will most likely not grant clemency if the defendant is convicted. (My wife is in a bridge club with the Executive’s administrative secretary for pardons, and she had it directly “from the horse’s mouth,” as it were.) The Chief Executive knows that this will be his last term in office. He is, to be frank, getting on in years, and not as susceptible to the political winds as he was at the start of his career. The secretary, in fact, as much as told my wife that the more the crowd protests, the stiffer grows the Executive’s resolve not to intervene. Consequently, there is no rescue to be looked for from that quarter.
I have studied carefully my brothers’ opinions, and considered their arguments. While I find some persuasive in points of detail, there is none with which I can agree wholly. The unfortunate situation in which I find myself at this point, is that I cannot withdraw from making a decision in this case, because were I to do so, the votes for conviction and reversal would be evenly divided. The result in such a case, as we all well know, would be that the judgment below would stand as rendered, and the defendant would go to his TD.
Nor, however, could I vote to reverse just one of the felony charges, for if I did, the other would stand, and would support the conviction of felony murder. The one thing of which my deliberations have convinced me is that any such result would be unjust in the extreme.
After long and careful consideration, therefore, I have decided to vote for reversal of all of the convictions below -- but not on the grounds urged by my brothers. No, I shall vote for reversal on the ground that, in my opinion, the prosecutor indicted the wrong defendant.
Isn’t it obvious who is the real perpetrator of the crimes which resulted in the terminal deactivation of twenty-one impoverished and blighted citizens of our community? Who was it who was penny-wise but pound-foolish, in deciding to shut off the electricity to the church -- and without first investigating the reason for the lights being on in the sanctuary? Nature had already intervened on the Diocese’s behalf to prevent this tragedy, by making it impossible for the utility company to carry out its orders. But the Diocese’s agent nullified that provident intervention by persisting on its course to save a little electricity (while also ensuring it would have to pay for the damage from frozen pipes -- that is why I say it was being penny-wise and pound-foolish).
The Diocese’s supposed concern for its pocketbook is also belied by its subsequent disposition of the property, which made news when it happened, and which we all know occurred for a fraction of the property’s value. The premises where these tragic TD’s occurred are now the scene of nightly disco dancing and clinking cocktail glasses. And because the homeless men were without heirs to sue for wrongful deactivation, the Diocese has escaped scot free. The district attorney should take a closer look at the conduct of the Diocese and its officers, with a view to preferring charges of negligent homicide.
Shall one man serve as the scapegoat for this multitude of others’ sins? Never, while I continue to sit on this Court. Upon my finishing reading these words from the bench, which I have not seen fit to share with my brethren earlier, in order that they have the maximum effect on both them and on the assembled public, the Clerk of the Court will announce that there are at least three votes for reversal of the convictions for individual felonies, and four votes to reverse the conviction for felony murder. The court below will be instructed to enter a judgment of not guilty, and the defendant will be freed to the bosom of his family.
Judgment of conviction reversed. The case is remanded with instructions to enter a judgment of not guilty in favor of the defendant, John Bunyan.