Opinion
February 14, 1949.
1. Criminal procedure — request for directed verdict, when must be renewed.
Although a directed verdict should have been ordered by the court on the defendant's request at the conclusion of the State's evidence, yet if the request is denied and the defendant introduces evidence in his own behalf, he must renew his request at the conclusion of all the evidence else the court cannot be put in error in the failure to direct a verdict of acquittal.
2. New trial — verdict against evidence — motion assigning that ground will be entertained so as to include case where no evidence supports verdict.
A motion for a new trial assigning as a ground that the verdict is against the great weight of the evidence is available to include a case where there is no evidence in support of the verdict and will in such case form the basis for a reversal and remand, but not for a reversal and discharge, when there has been no request for a peremptory charge at the close of all the evidence.
3. Criminal law — trespass — doctrine of respondeat superior not available.
Although under the doctrine of respondeat superior an employer may be civilly liable for the cutting of trees by his employees on the lands of another, a criminal conviction of the employer cannot be sustained when there is no proof that the employer himself had wilfully and knowingly cut the trees and none that he had authorized his employees to do so.
Headnotes as approved by McGehee, C.J.
APPEAL from the circuit court of Green County; JESSE H. GRAHAM, J.
Ben H. Walley, for appellant.
The defendant established by evidence, which was never contradicted, that all timber cut, was cut by employees of defendant. There was no testimony to show that defendant instructed or directed this timber to be cut. On the contrary, these employees-witnesses testified that they had been instructed not to cut any timber belonging to Mrs. McLain or any one else.
All witnesses testified that when it was discovered that some timber had been cut, appellant offered to pay for what damage had been done. The amount offered was never brought out in examination of witnesses but an offer was made to pay what was fair and reasonable.
The charges were that appellant did wilfully and unlawfully enter upon the land of Mrs. Thelma McLain and cut fifty pine trees without the permission or consent of Mrs. Thelma McLain or her agent.
There was not a single witness for the State who testified to the effect that this defendant actually cut any timber on lands belonging to Mrs. McLain. Not one witness testified that this defendant directed the men who were actually cutting this timber to cross the line and cut any timber belonging to Mrs. McLain. Not one witness testified that appellant had ever directed his crews to go upon the land of another and cut timber. The Negroes who were actually cutting the timber specifically denied that appellant told them to cut timber belonging to Mrs. McLain. There crews admit cutting the timber in question and testify that one of the prosecuting witnesses showed them where the land lines were and told them where to cut the timber.
The testimony, construed most strongly against the appellant, is that there were some trees cut; that where the timber was cut the boundary lines were not clearly marked; that the timber that was cut was cut by men employed by this appellant; and that appellant did not, at any time, tell these men to go upon the lands of Mrs. McLain and cut timber belonging to her. This testimony is insufficient to support a verdict of guilty under a charge of wilful trespass.
In order for a crime to be committed under this section (Section 1149, Code of 1930, which is Section 2386, Code of 1942, the Section under which this action is brought,) the trees must be knowingly and wilfully cut. That was the language used by this court in the case of Twitty v. State, 159 Miss. 593, 132 So. 746. In another case, Draughn v. State, 178 Miss. 646, 174 So. 564, the appellant was indicted under this same section of the Code for wilful trespass. It appears that appellant had the right to cut timber from a tract of land. In cutting his timber he went onto the lands adjoining and cut fifty trees. The evidence established that the lines between these two tracts were not clearly marked and this court said that the trees must be wilfully and knowingly cut and that the evidence was barren of indications that the trees were not cut by appellant in good faith. As a result, the cause was reversed and appellant was dismissed.
There was no evidence to establish the fact that defendant cut any trees or that he directed his crews to go on this land and cut any trees. The testimony with regard to the cutting, construed most strongly against defendant, proves that these men were employees of defendant and they had been instructed that they should not go upon this land and cut any timber.
There is no agency, properly so called, in crime. Aside from those cases where there is actual connivance, conspiring or abetting, or where the business conducted by the principal through the agent is unlawful within itself, there is no principle by which criminal responsibility may be imputed to a master for the acts of the servant. The civil doctrine of respondeat superior was not conceived, nor is it to be applied, to include responsibility of the master to the state for the independent acts of the servant. This language was used with approval by this court in the case of Lovelace v. State, 191 Miss. 62, 2 So.2d 796. In the instant case we have no evidence of a conspiracy to commit a trespass. There are no indications that there was any connivance with the employees to commit a trespass. Appellant has not been charged with abetting a crime. He has been charged with a wilful trespass.
In the instant case, the record is barren of any evidence to indicate that appellant committed a trespass "knowingly and wilfully" as required under Section 2386, Code of 1942. There is no evidence to indicate that a trespass was committed "wilfully and maliciously" as required under Section 2406, Code of 1942. There is no evidence to indicate that any damage was done or that the trespass was committed after appellant had been notified "to depart" as required under Section 2411, Code of 1942. Therefore, this appellant has not committed a crime under either of these statutes.
George H. Ethridge, Assistant Attorney General, for appellee.
I submit to the court for its consideration and determination whether the case is brought under Section 2406, Code of 1942, and if so, whether the proof is sufficient to establish a malicious trespass upon the lands of the McLains. This section seems to be the only criminal section prohibiting a wilful or malicious trespass upon the real or personal property of another. This section implies and the language negatives apparently the words "without their consent." I frankly doubt whether the evidence in the case is sufficient to come under this section of the statute. There are statutes for civil trespass which seem to conform to the idea of the consent being proven to constitute an action under civil trespass. It is true the civil statutes provide that the action for civil trespass and for statutory penalties do not preclude a criminal prosecution. However, I am not sure in this regard and I ask the court to give full consideration to the proof and the statute, (Section 2406).
I invite the court's attention again to Section 2406 and would like for it to determine in its opinion whether the words "shall be guilty of wilful or malicious trespass upon real or personal property of another" are separate offenses; that is to say, if the word "wilful" constitutes one offense and the word "malicious" constitutes a separate offense and to define the word "wilful" if they constitute two offenses as to its precise meaning. It is probable that the grand jury and the district attorney in returning the indictment treated it as if each constituted a separate offense and if this interpretation is correct then the proof would probably be sufficient to sustain a conviction thereto. In a case of wilful trespass is it sufficient to impose upon the trespasser a knowledge of where the line is before putting his crew to cutting timber? It seems to me that the word "wilful" would imply actual knowledge of where the line actually was and it would not be sufficient to constitute a wilful trespass if the trespasser did not know where the line was and there were not sufficient marks to show beyond a reasonable doubt that he did know. In other words, wilful trespass, it seems to me, embraces the knowledge that the land on which the trespass was committed was not the land embraced in the sixteenth section.
I also call the court's attention to the fact that the instructions for the state, especially the one on page 119, do not embrace the word malice. The proof is scarcely sufficient to imply a malicious cutting if malice is involved in this case on the testimony. This instruction used the words "wilfully and unlawfully" as the gist of the offense denounced by statute.
It seems to me that the present record presents a case where it is proper for clarity and certainty to have the court declare the meaning of the words "unlawfully and wilfully" and "wilfully and knowingly" more precisely. The court should interpret Section 2406 as to just what it does prohibit and what proof is required to make out a case thereunder.
This appeal involves the question of whether or not there is sufficient evidence to sustain a verdict of conviction of the appellant for an alleged criminal offense in connection with the cutting by his employees of approximately fifty young pine trees for pulp wood without the consent of the owners of the land from which they were cut and removed.
We are of the opinion that there was no evidence introducted on the trial that warranted the submission of the case to the jury against the defendant under either Section 2386 or 2406, Code of 1942, on criminal liability; and we think that the motion of the defendant to exclude the evidence offered by the state and to direct a verdict in his favor at the close of the evidence offered by the state should have been sustained.
(Hn 1) However, the defendant did not elect to stand on the record as made when the prosecution rested its case, but proceeded with the introduction of proof in his own behalf, and then failed at the conclusion of all the evidence to renew his motion for a directed verdict; that is to say, he failed to request a peremptory instruction at the conclusion of the taking of all the testimony. The trial court cannot therefore be put in error for its failure to direct the jury to acquit the defendant at the conclusion of all the evidence.
(Hn 2) However, the defendant did make a motion for a new trial and assigned that the verdict of the jury is not supported by the evidence, but was contrary to both the law and the evidence, and hence we are asked to either reverse the case and render a judgment here in favor of the appellant or reverse and remand it for a new trial on the ground that the verdict is against the great weight of the evidence. We must adopt the latter course because of the failure of the defendant to request a directed verdict at the close of all the evidence, and for the further reason that the proof now before us fails to disclose that the defendant either authorized his employees to cut the trees in question or that they did so with his knowledge or approval. On the contrary, the undisputed evidence clearly shows that the defendant's employees cut the trees in question without authority or direction from him to do so, and that according to the testimony of one of the co-owners of the land, the defendant offered to pay whatever they were reasonably worth, the witness saying, "he wanted to pay me for the timber cut off the land", and it was admitted by him that this offer was made within one or two days after it became known that any trees had been cut on the land owned by the witness and others as tenants in common. Also, that the defendant made a similar offer to one of the other co-owners shortly thereafter.
(Hn 3) In other words, there is no proof that defendant himself had willfully and knowingly cut and removed the timber of another, or that he had authorized his employees to do so. The civil doctrine of respondeat superior cannot render the defendant criminally liable for a fine and a jail sentence under the facts and circumstances disclosed by this record. The fact that the defendant may be civilly liable for the value of the trees does not afford a basis for the conviction of the crime charged.
But for the reasons hereinbefore stated, the cause must be reversed and remanded.
Reversed and remanded.