I do not think that the law which defines the right of the occupant of premises, whether his domicile, the curtilage, or his place of business, to eject a trespasser therefrom, has any application to the facts of this case, for the reason that there is no evidence, even from the defendant, that he was attempting to exercise that right.
In the printed brief of counsel for the appellant it is said:
"* * * The defense was solely self-defense and the right to protect property being taken under claim of right, or to eject a trespasser from a place of business, while of primary importance to the appellant in sustaining the first element of self-defense, i.e., without fault in bringing on the difficulty, was not offered as justification for the tragedy."
As there was no evidence of any effort on the part of the defendant to eject the deceased from the premises, this feature of the statement made by counsel may be eliminated; what remains may be accepted as a correct statement of the defendant's position, in substance, that the sole defense of the defendant was self-defense, and his right to protect property in his possession and his conduct in the alleged enforcement of that right bear only upon the single element of his plea of self-defense, that he was without fault in bringing on the difficulty.
The defendant assumed the burden of establishing the four well-known elements of self-defense; one of which is that he was without fault in bringing on the difficulty. He sought to bear this burden by showing that his possession of the personal property was being invaded by the deceased unlawfully, and that, acting in the exercise of his right to employ reasonable means to prevent such unlawful invasion, he necessarily was not at fault in bringing on the difficulty; hence he had established that essential element in his plea. *Page 492
I think that his Honor the Circuit Judge, most careful as he is in all instances to guard the rights of the defendant, gave him the full benefit of this right in the following language:
"If you make reasonable protest against the trespass and he commits an assault upon you, you have the right to defend yourself; if you are making a reasonable defense ofyour property and you are assaulted, you have a right to defendyourself. The only right of defense of property of (in?) taking human life is where a felony is committed. You have no right to take human life in order to prevent a mere trespass, but if in trying to make reasonable efforts to prevent the trespass an attack is made on you, you have the right to defend yourself."
The defendant in establishing this element of his plea must not only have shown that his possession was being unlawfully invaded, but that he was using reasonable means to prevent it. Under the evidence in the case, the jury may rightfully have concluded that the defendant did not comply with this obligation. It tended to show that he was angrily determined that the deceased should not remove the boiler and to prevent it at any cost. A witness testified that, after the dispute arose, the deceased expressing his determination to move the boiler and the defendant vigorously opposed thereto, the defendant moved off toward his home saying,"I will show you, you can't get it." Another, that he said "You will not move it; you just stay here until I get back." The defendant admitted saying, "There ain't nobody going to move that mill until I get my money." By his own testimony it appears that he walked over the fields toward his home; secured his shotgun, stopped at a store, and bought shells loaded with No. 4 shot, "that was the largest they had." (He doubtless would have bought buckshot shell if they had been available.) The evidence tends to show that he returned to the mill, stood some 10 or 15 feet from the deceased, announced, "You can do your dirt, but you can't *Page 493 get away with it," and shot him to death while he was kneeling on one knee near the boiler.
Even if there was an omission on the part of the presiding Judge to charge more fully (which I do not think existed), the evidence fails to show that the defendant was using reasonable meants to protect his property; and that therefore he utterly failed to establish the essential element that he was free from fault in bringing on the difficulty.
It is true that the defendant claimed that, as he stood before the deceased, shotgun in hand, the deceased made a movement for his pistol, and then shot in self-defense. This, if true, would not avail him, if he himself was at fault in bringing on the difficulty.
His Honor most forcibly and justly charged the jury:
"A person has no right to assault another merely to protect property, unless he is in possession, and the killing is necessary in order to prevent the commission of a felony. The reason is that the preservation of human life is of more importance than the protection of property. The law may afford ample indemnity for the loss of property, while it has utterly failed to do so as to the other."
It must be remembered, as counsel for the defendant concedes, that the defendant does not attempt to justify the killing as having been done in defense of his possession of the personal property; he relies solely upon his plea of self-defense; the other being incidental as shown.
In this case it appears to me that the presiding Judge fully charged the jury upon the defendant's plea of self-defense and upon his right to use reasonable means to protect his property. I think that he has nothing to complain of, and that the judgment should be affirmed.
MR. JUSTICE BLEASE concurs. *Page 494