People v. Payne , 8 Cal. 341 ( 1857 )

Burnett, J., after stating the facts, delivered the opinion of the Court—Terry, C. J., concurring.

From all the testimony taken together, it would seem clear that Stone and Vaughn, went with the pre-determination to remove the posts by force, if necessary. It is equally clear, that Payne went upon the ground determined to prevent their removal by force, if required. Whatever may have been the merits of the respective claims of each, party to the land in dispute, the posts were the admitted persbnal property of Payne, and Stone had no right to remove them and appropriate them to his own use. The lawsuit was still pending and undetermined, and the proposition of Payne Jo let the posts remain until the determination of the lawsuit, was the most reasonable, and showed a desire then to avoid a difficulty. Whatever might have been the result of the suit about the land, the property in the posts would have remained in Payne, and he would have had the right to remove them at any time, by making good any damage occasioned by their deposit upon, and removal from the ' premises.

It would seem clear, that the act of Payne could not amount to manslaughter, for the reason, that this offence “ is the unlawful killing of a human being without malice, express or implied, and without any mixture of deliberation.” Com. Laws, 641. There was certainly deliberation on the part of Payne, and the offence, if any, was murder.

Justifiable homicide is defined by our statute to be “the killing of a human being in necessary self-defence, or in defence of habitation, property, or person, against one who manifestly intends, or endeavors, by violence or surprise, to commit a felony,” &c. ,,

Under the circumstances of this case, the jury had to inquire whether Stone and Vaughn manifestly intended, or endeavored by violence, to commit a felony—and if so, whether the act of Payne was in necessary defence of himself or property. Stone Á and Vaughn knew that the property belonged to Payne, and the evidence goes clearly to show that they went with the determination to remove it to the premises of Stone, peaceably if they could, and forcibly if they must. The removal was determined upon, and their subsequent conduct depended upon contingencies. If the owner of the property resisted, they were prepared to use force to accomplish the trespass. It was not the intention or endeavor of Stone arid Vaughn to commit a felony, in respect of the property, for they did not intend to steal it. Mor was it their intention to commit robbery, for the felonious intent as to the property, was wanting. But the felony they intended to'J commit, was the killing of Payne, if necessary to accomplish the removal of the posts. Payne being the owner of the property, and in possession of the same, had a right to use such force as was necessary to prevent a forcible trespass; and if in doing so, he was compelled to kill Vaughn, he was justifiable. If Vaughn had not been armed, and had simply attempted the trespass without force of arms, and neither intended nor endeavored to commit a felony himself, then Payne would not have been justified in killing him. But when the trespasser goes with the intent, ; and with the mean < :oi;'?At a felony, if necessary, to aecomj plish the end inter' , ü.e owner of the property may repel ) Lforce hy force.

The instructions | ■ ¡> AA not place the real points arising under the testimony, ¡A. ■ lore the jury.

The verbal modified - » erroneous. It constituted a part of the instruction as if the instruction itself must be in writing, each par c- - " >g it must also be in writing.

The act of May 7, "A \ A positive, and the decision of this Court, in the case of Tt ¡ pie v. Buler, July, 1856, is directly in point. ,

Judgment reversed, .-oid ¡ause remanded for further proceedings.