Opinion
No. 33339.
November 7, 1938.
1. TRESPASS.
An instruction, to find defendants guilty of a simple trespass if jury believed beyond a reasonable doubt that the defendants unlawfully and willfully trespassed on certain realty, was equivalent to an instruction to return a verdict of not guilty, even though the state proved its case beyond a reasonable doubt, since there is no such crime as a "simple trespass" in Mississippi (Code 1930, sec. 1163).
2. TRESPASS.
A verdict finding the defendants guilty of "simple trespass" was the equivalent of a verdict of not guilty, and would not support a judgment imposing a fine, since there is no such crime as a "simple trespass" in Mississippi (Code 1930, sec. 1163).
APPEAL from the circuit court of Union county; HON. T.H. McELROY, Judge.
Hugh N. Clayton, of New Albany, for appellants.
The appellants assigned as error the refusal of the trial court to grant their motion, at the close of the proof for the State, to exclude the evidence and direct a verdict for them. The affidavit charges the appellants with a wilful and malicious trespass upon the land of D.C. Gregory. The question of a malicious trespass was not submitted to the jury and is not involved in this appeal, leaving only the question of whether or not the appellants were guilty of wilful trespass.
Page v. State, 160 Miss. 300, 133 So. 216.
It was not incumbent upon the defendants to prove excuse or justification but the state must prove lack of excuse or justification of its case in chief. This the state failed to do.
Barnett v. State, 124 Miss. 884, 87 So. 421; Twitty v. State, 159 Miss. 593, 132 So. 746; Draughn v. State, 178 Miss. 646, 174 So. 564.
The appellants assign, as error, the instruction given for the state wherein the jury was told that they could find the defendant guilty of a "simple trespass." All of the instructions for the appellants were based on the idea of a "wilful trespass" and these instructions use the word "wilful." One instruction for the appellants recites that they "are charged with a wilful trespass upon the land of Den Gregory." On the other hand, the complained of instruction for the state told the jury that they could find the defendant guilty of a simple trespass. It is respectfully insisted that the instruction for the state complained of and the named instructions for the appellants are not in harmony but that they are contradictory, inconsistent and confusing.
The appellants assign as reversible error the refusal of the trial judge to discharge them on the basis of the verdict of the jury. The jury returned the following verdict, "We, the jury find the defendants guilty of simple trespass." The appellants moved the court to discharge them as result of said verdict on the ground that it operated as an acquittal of the charge against them.
Agnew v. Jones, 74 Miss. 347, 23 So. 25.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
In accordance with the ruling of the court on motion to exclude, the state requested and was granted an instruction which told the jury that if the appellants "unlawfully and wilfully trespassed" upon the real property of Gregory, it would be its duty to find them guilty and that the form of the verdict would be "We, the jury, find the defendants guilty of a simple trespass." There appears to be no doubt but that the court spoke of a simple trespass as distinguished from one involving malice. In either event the punishment would be the same upon conviction, whether it was referred to as "trespass" or "simple trespass" or "wilfull trespass." The jury was required to believe that the acts were "wilfully" done and if it believed that they were wilfully done, then it would make no difference whether it were called a simple trespass or something else. All of the elements essential to a wilful trespass are required to be believed by the jury before it could convict. The instruction, as given, could not possibly have misled the jury.
Under the instructions of the court, if the jury brought in a verdict of guilty of "simple trespass," it necessarily had to believe that the trespass was "unlawful and wilful." A wilful trespass upon real property of another is a part of the offense charged in section 1163 of the Code of 1930.
Argued orally by Hugh N. Clayton, for appellant, and by W.D. Conn, Jr., for the State.
Appellants appealed from a judgment of the Circuit Court imposing a fine of $25 on each of them for an alleged unlawful and wilful trespass upon the lands of one Gregory. The prosecution originated before a justice of the peace on affidavit charging the offense. There was a conviction and an appeal to the Circuit Court and a trial there de novo.
A verdict of guilty, of course, was necessary upon which to base the judgment of the Court. We have reached the conclusion that the verdict was not one of guilty, but one of not guilty. We arrive at that conclusion upon the following considerations. The prosecution was under Section 1163 of the Code of 1930, which follows: "Any person who shall be guilty of a wilful or malicious trespass upon the real or personal property of another, for which no other penalty is prescribed, shall, upon conviction, be fined not exceeding five hundred dollars, or imprisoned not longer than six months in the county jail, or both."
There was evidence for the state tending to show that the trespass was wilful and malicious, and there was evidence on behalf of appellants tending to show the contrary. The state asked for an instruction in the following language: "The Court instructs the jury for the State that if you believe from the evidence in this case beyond a reasonable doubt that the defendants at the time and place as alleged in the affidavit, unlawfully and wilfully trespassed upon the real property of D.C. Gregory, then it is your sworn duty to find them guilty as charged, and the form of your verdict should be, `We, the Jury, find the defendants guilty as charged in the affidavit.'"
The Judge ran his pen through the last five words of the instruction: "as charged in the affidavit," and added: "of a simple trespass." The state used the instruction in that form. The Jury accordingly returned the following verdict: "We the Jury find the Defendants guilty of simple trespass." There is no such crime as a "simple trespass" known to the laws of this state. The change, therefore, made in the charge was equivalent to instructing the jury to return a verdict of not guilty, even though the state proved its case beyond a reasonable doubt. In other words, the verdict returned was an impossible one. It could have meant nothing more than that the state had failed to prove its case beyond a reasonable doubt. It had no more validity than a verdict of simple trespass would have in a murder trial. We have here, therefore, a judgment of the Court imposing fines based on the verdict of the jury of not guilty.
Reversed and judgment discharging appellants.