Prine v. State
| Decision Date | 05 February 1940 |
| Docket Number | 34041 |
| Citation | 188 Miss. 147,193 So. 446 |
| Court | Mississippi Supreme Court |
| Parties | PRINE v. STATE |
APPEAL from the circuit court of Jefferson Davis county HON. J. C SHIVERS, Judge.
T. M Prine was convicted of murder, and he appeals. Affirmed.
Affirmed.
T. B Davis, of Columbia, for appellant.
Instructions 3 and 4 are erroneous. Instruction No. 4 required the jury to believe the appellant in actual danger before he had a right to shoot. Also that if neither he nor his son was in immediate danger at the time he shot then he is guilty of either murder or manslaughter. Neither instruction tells the jury that it must have been done without authority of law. No. 3 assumes malice aforethought. No. 4 tells the jury that if he acted without malice he was guilty of manslaughter. One or both of these instructions should have correctly defined murder and manslaughter, which they failed to do.
Rutherford v. State, 100 Miss. 832, 57 So. 224; Ivy v. State, 84 Miss. 264, 36 So. 265; Bang v. State, 60 Miss. 571; Fore v. State, 75 Miss. 727; 30 C. J. 368; Gamblin v. State, 29 So. 267; Brett v. State, 94 Miss. 669, 47 So. 781; Jackson v. State, 79 Miss. 42, 30 So. 39; Motley v. State, 174 Miss. 568, 165 So. 296.
The court below erred in refusing the instruction shown on page 283 of the record, stating the law as to the right to eject a trespasser and in refusing to admit the testimony of Henry Mounger and the testimony of W. G. Watts whereby the court refused to permit the appellant to show that the title of the land on which the trespass was committed and the timber which was being taken by deceased was vested in Sam Prine and Joe Prine, the appellant's sons and one of which was his co-defendant, as well as other evidence offered and rejected which was for the purpose of showing the same thing.
Code of 1930, sec. 995; Bowen v. State, 164 Miss. 225, 144 So. 230; Brown v. State, 98 Miss. 786, 54 So. 305, 34 L. R. A. (N. S.) 811; Williams v. State, 121 Miss. 433, 84 So. 8; Washington v. State, 21 So. 656; Boykin v. State, 86 Miss. 481, 38 So. 725; Ayers v. State, 60 Miss. 709; 30 C. J. 205, 331; State v. Matthews, 148 Mo. 185, 71 A. S. R. 594; 13 R. C. L. 139.
Counsel for the defendant should have been allowed to cross examine the state's character witnesses who had testified that the deceased's reputation for peace or violence was good, by asking them if they had not heard of certain instances when the deceased had committed assaults or assault and battery on different persons at different times.
30 C. J. 175, 234; 13 R. C. L. 920; Newsom v. State, 107 Ala. 133, 18 So. 206; Lewis v. State, 93 Miss. 697, 47 So. 467.
The appellant was refused the instruction which tells the jury that they should consider and take into consideration along with all the other evidence in the case the question as to whether or not the defendant looked upon the deceased as a dangerous and violent man and that if they believe that he did that this alone might raise a reasonable doubt.
Newsom v. State, 107 Ala. 133, 18 So. 206; Lewis v. State, 93 Miss. 697, 47 So. 467.
In the case of Jones v. State, 170 Miss. 581, 155 So. 430, our court quotes from Ayers v. State, 60 Miss. 700 as follows: "It was held that the owner of property, on his own premises, has the right, by force, to evict a trespasser or restrain the trespasser from injuring his person or property and the owner is justified in arming himself with any weapon and using it to the extent of slaying the trespasser, if necessary, in the progress of the difficulty to protect his life or person from a felonious assault."
It was the action of the deceased in going upon this land and taking this timber that brought about the killing, it happened while he was so engaged and while he was showing his purpose to continue to so do. We think that the question as to whether or not these Prine boys owned or claimed this land was of the utmost importance and as to whether or not the trespass was of sufficient gravity to warrant the shooting of the deceased, we think was at least for the jury, and the question as to whether or not such fact would reduce the case to manslaughter was one for the jury, and the jury had a right to know whether or not the deceased or the Prines owned this land and timber.
W. D. Conn, Jr., Assistant Attorney-General, for the State.
As to Instruction No. 3, this instruction is verbatim copy of the instruction which was approved by the court in Eaton v. State, 163 Miss. 130, 140 So. 729. There is this to be observed, however, that there is an extension of the right of T. M. Prine to shoot, not only in defense of himself, but also in the defense of his son. In other words, the instruction in the Eaton case has been enlarged to meet the situation which was present in this case.
As to Instruction No. 4, this instruction is an exact copy of one which was expressly approved by the court in McGehee v. State, 138 Miss. 822, 104 So. 150.
Motley v. State, 174 Miss. 568, 165 So. 296.
Appellant complains of the refusal of an instruction which sought to tell the jury that a man had a right to protect his property and had the right to eject a trespasser therefrom and in doing so might use such force as was reasonable and proper to do so. There is nothing in the record to indicate that this killing occurred as a result of ejecting any trespasser from appellant's property belonging to his son. Since this was not an issue in the case, it was proper to refuse the instruction.
After the defendant had shown evidence of the bad reputation of deceased, the state, in rebuttal, offered witnesses to show that deceased's reputation, instead of being bad, was good. Thereupon, appellant undertook to cross-examine these witnesses with reference to specific instances of supposed violence on the part of deceased. The court sustained objections to this character of cross-examination with the observation that the court was not prepared to enter into a trial of each of these supposed acts of violence to determine whether they were justifiable or not. The court has said that reputation is not provable by specific acts.
McCoy v. State, 91 Miss. 257, 44 So. 814; Barnes v. State, 164 Miss. 126, 143 So. 475; Herring v. State, 122 Miss. 647, 84 So. 699.
As to defendant's instruction, this instruction would have advised the jury if the defendant considered deceased as a violent and dangerous man, then this alone could have been sufficient to raise in the minds of the jury a reasonable doubt as to his guilt. This court has always said that where one acts on appearances and kills another, he is not the final judge. That is a matter for the jury to determine under all the circumstances, whether he acted as a reasonably prudent individual under the circumstances then before him.
Lewis v. State, 93 Miss. 697, 47 So. 467; Calloway v. State, 155 Miss. 706, 125 So. 109; Shelton v. State, 156 Miss. 612, 126 So. 390; Dewberry v. State, 168 Miss. 366, 151 So. 479; Harris v. State (Miss.), 166 So. 392; Williams v. State (Miss.), 188 So. 316.
Argued orally by T. B. Davis, for appellant, and by W. D. Conn, Jr., for appellee.
The appellant, T. M. Prine, jointly indicted with his son, Joe Prine, was tried separately and convicted of the murder of D. S. Evans; whereupon, he was sentenced to serve a life term in the state penitentiary.
The controversy out of which the killing arose involved a dispute between Joe Prine and the deceased, Evans, as to the ownership of certain poles which previously had been cut and peeled at the instance of Joe Prine and his brother, Sam, and left in the woods where they were felled, on land claimed by the said Joe and Sam Prine under an unrecorded deed of conveyance, and which land was also claimed by the deceased under an alleged purchase from a different grantor. It is not clear whether there was an alleged conflict in the descriptions contained in the respective conveyances under which they claimed title, or whether the deceased claimed that the poles in question were, in fact, located on land which he claimed to own, instead of being on the land described in the Prine deed.
The deed of conveyance held by said Joe and Sam Prine was offered in evidence by the appellant, for the purpose of showing that the deceased was committing a trespass under such circumstances as would reduce the alleged crime of murder to manslaughter, as provided by section 995, Code 1930; and also to show that the deceased, being a trespasser, was more likely to have been the aggressor in the difficulty. An objection to the introduction of this deed was sustained by the trial court, and that action is assigned here as error.
There was likewise excluded certain evidence offered by the state to prove that shortly before the killing a Mr. Langston had spoken to Joe Prine about buying some poles on this land, and that the latter referred him to the deceased, Evans; and that thereafter Prine assisted Langston, the purchaser from Evans, to cut the poles. In testifying in the absence of the jury Joe Prine admitted the incident above mentioned, and that he went with Langston when he bought the poles from the deceased; but explained that his vendors had not then succeeded in perfecting the title conveyed by his deed. The court held, however, that a trial of the question as to who had title to the land where the poles were cut was not essential or material to a proper determination of the issue then under consideration.
The testimony for the state did develop the fact, however, that the deceased claimed the land by purchase from one Hemphill and the court likewise...
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