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(- Wyo. 224 Pac. 420.) Homicide, 42 - right to kill in defense of habitation.

1. The doctrine of the right to protect one's habitation gives no moral right to kill another, unless necessity, or apparent necessity, for purposes countenanced by law, exists.

[See note on this question beginning on page 1488.] Homicide, $ 47 duty to retreat from Trial, $ 206 question for jury bedroom.

act of prudent man. 2. One occupying as a bedroom a 7. The jury must determine whethroom in a house in which intoxicating er or not a cautious and prudent man liquors are illegally manufactured is would kill in self-defense one who not compelled to retreat therefrom if opened the door of his bedroom at attacked by trespassers.

night and threw a flash light upon [See 13 R. C. L. 828; 3 R. C. L. Supp. him. 90.]

Homicide, $ 8 - definition of "malHomicide, § 43 right to kill to pre

ice.” vent felony.

8. The term “malice,” in the law of 3. A man has a right to prevent in homicide, implies a mind committing his home the commission of a felony the very act wilfully. or the infliction on any of its immates

[See 13 R. C. L. 764.] of an injury which may result in loss

Homicide, $ 8 – duty to give alarm of life, or great bodily harm; but can- on hearing attempted entry of not inflict punishment for acts al- house. ready done.

9. One hearing another attempting [See 13 R. C. L. 841; 4 R. C. L. Supp. to force his way into his habitation in 836.]

the night is not bound to call out or Homicide, § 42 - killing for act of en- give an alarm to escape the imputatry.

tion of malice if he kills the intruder 4. One cannot kill a burglar in his in a subsequent encounter between house merely for the act of entry al

them. ready committed.

Homicide, & 8 - degree of homicide Homicide, 48 — right to shoot in

absence of malice. self-defense.

10. One cannot be found guilty of 5. One is not justified in shooting a degree of homicide involving malice in self-defense a person who is at

where, after hearing someone enter tempting to enter his bedroom at his dwelling in the night, he fails to night, unless there is actual or appar

call out or give an alarm, and when ent danger of loss of life, or of his

the door of his bedroom is opened sustaining great bodily injury.

and a light flashed upon him he shoots [See 13 R. C. L. 840; 3 R. C. L.

and kills the intruder. Supp. 92.]

Appeal, 642 error in instruction Homicide, § 48 standard of cau

absence of prejudice. tious and prudent man.

11. Omission from an instruction 6. One is not justified in shooting in

in a homicide case of the doctrine of self-defense a person who opens the

apparent danger as a justification for door of his bedroom at night and

the killing is not prejudicial error, throws a flash light upon him, if a

where the doctrine is fully and clearly cautious and prudent man under the

stated in other instructions. same circumstances would not have Evide ce, § 1346 - of condition of believed the danger to have been real. premises at time of homicide.

[See 13 R. C. L. 818; 3 R. C. L. 12. In a prosecution for homicide Supp. 88; 4 R. C. L Supp. 835.7

defendant has committed in defense

of his habitation, evidence is admissi- Appeal, $ 960

Appeal, $ 960 — right to modify conble that at the time of the killing viction. there was a smell of illicitly distilled 15. A statutory provision that the whisky on the premises, and that sev- appellate court in a criminal case shall eral days prior thereto a keg of whisky order the prisoner to be discharged, and several empty kegs were found on a new trial to be had, or the original the premises.

judgment to be enforced, as the naWitnesses, § 62

ture of the case may require, does not error of counsel in asking questions.

prevent modification of the judgment 13. It is error in a prosecution for

where another section provides that, homicide to ask accused when he paid modify, or annul the judgment may be

after judgment, proceedings to vacate, a fine for moonshining.

begun. [See 28 R. C. L. 621; 3 R. C. L. Supp.

[See note in 29 A.L.R. 313.] 1586; 4 R. C. L. Supp. 1833. See also

Appeal, 971 — reduction of murder notes in 6 A.L.R. 1608; 25 A.L.R. 339.]

to manslaughter. Appeal, 8 767 - nonprejudicial error. 16. Where errors of the trial require

14. Merely asking one on trial for reversal of a conviction for murder, homicide when he paid a fine for the appellate court may affirm the moonshining cannot have had suffi- judgment for manslaughter, giving cient influence upon the verdict to re- the state a right to new trial if the eviquire reversal, if there was other evi- dence warrants it, and the errors do dence in the case connecting the de- not affect a conviction for such an offendant with the illicit manufacture fense. of whisky.

[See note in 29 A.L.R. 328.]

APPEAL by defendant from a judgment of the District Court for Laramie County (Riner, J.) convicting him of murder in the second degree. Reversed with directions.

The facts are stated in the opinion of the court.

Mr. William C. Mentzer for appel- corner of the house, and a bedroom, lant.

on the southwest corner of the Mr. David J. Howell, Attorney Gen- house. The door leading from the eral, for the State.

south porch into the kitchen is close Blume, J., delivered the opinion of to the west end of the latter, and the court:

swings inward from east to west; The defendant, Mike Sorrentino, the door—and the only door-leadwas convicted of murder in the sec- ing into the bedroom is close to the ond degree and sentenced to the pen- south side of the house, swinging initentiary for a period of from thirty- ward from north to south. In other five to forty years, and he appeals. words, the two doors mentioned are

The homicide in question occurred close to each other and in the same about 10 o'clock on the night of De- corner. cember 21, 1922, in a cement block The decedent, one George Mchouse on the corner of Eleventh Gough, was about twenty-four years street and Capitol avenue, in the city of age. He and Vance Homan, a of Cheyenne. The house faces north boy of about seventeen years of age, on Eleventh street and has a front met about ? o'clock of the evening and a rear entrance, and a front and of the homicide, with the intention a rear porch. It is a one-story to go into the house in question for house, which has a basement to the purpose of stealing some sowhich access may be had by a stair- called "moonshine whisky.” They way leading from the kitchen. Only had been in the house on the previfour rooms are in the house, of als ous Sunday, and had found the door most equal dimensions. The south unlocked, though closed, had gone two rooms are the two rooms main- in, and found nothing. It is not ly concerned in this case, and con- clear just what they did at 7 o'clock sist of a kitchen, on the southeast on the night in question, but they

(Wyo. 224 Pac. 420.) did not go in. They returned at 8 himself shouted, "Hands up, come o'clock, tried to enter by the rear from me!" That he saw the dedoor, but, finding it locked, went ceased with his hands back and pullaway, the deceased intending to get ing a revolver, whereupon he shot. some keys which would open the After the shooting, defendant fled

. These keys were procured precipitately to Colorado. by said deceased, and about 9 o'clock mony of reputable witnesses shows he, in company with said Vance Ho- him to have had a reputation as a man and two other boys, returned peaceable and law-abiding citizen. to the house. The two latter were The north two rooms in the house stationed round the house as guards. and the basement were, upon exThe deceased and Vance Homan amination immediately after the went onto the back porch, unlocked shooting, found to be empty. In the the door with a key, and entered the kitchen were only some empty glass kitchen. The night was dark, no bottles, a bushel basket, a strainer light was in the house, and its win- used in straining liquids, with a dows were covered. The deceased cloth over it that was wet. A strong was equipped with a flash light, and odor of "moonshine whisky" was in used it to some extent in the kitch- the room. In the bedroom was a en, no doubt for the purpose of find- mattress pad, which had on it one ing some whisky. Vance Homan comfort, two army blankets, and a testified that they were in that room pillow, and had the appearance of for perhaps two minutes. They having been occupied by someone a were there, no doubt, just long short time before, there was also an enough to discover that no whisky oil stove, then burning. The dewas to be found, and they then pro- fendant claimed the house to be his ceeded toward the bedroom already home. The state, however, intromentioned. It was open to the ex- duced evidence tending to show the tent of 5 inches. Homan pushed the contrary, and that it was used for door open, and the deceased used his the unlawful purpose of the manuflash light, throwing it upon the face facture of moonshine whisky. and upper part of defendant, who Among other things, it was shown was standing on or by a bed in the that a keg of 5 gallons of that liquid middle of the room, and who there- was found in the house some three upon, so Homan testified, shouted, or four days prior to the date of the "Hands up!" and almost immediate- homicide. Some of the witnesses ly thereafter began to shoot. Two testified that the defendant had or three shots were fired from a been frequently seen going to and shotgun, one of which struck the de- from the house, with baskets, gunny ceased, inflicting a wound from sacks, grips, and bags, which, whatwhich death resulted soon after. It ever its object, tended to show, if does not appear whether Homan or nothing more, that the defendant deceased threw up their hands as had a right in and to the house. It commanded.

may be mentioned that it seems The defendant's testimony varied clear that at the time of the shootto some extent from that of the wit- ing a Smith & Wesson revolver was ness Homan. According to him he also used in the kitchen, and a shot heard four men come onto the porch, or shots fired therewith, one shot trying two or three keys before the lodging behind the lock in the kitchkitchen door opened; that he was en door. The circumstances appear awakened from sleep; that he to negative the assumption that it dressed as soon as he heard the noise might have been used by the defendon the porch; that he was fright- ant. The witness Homan testified ened; that when the bedroom door that neither he nor the deceased had was pushed open and the flashlight the revolver, and none was found on thrown on him, he heard someone the latter when seen after he was say, "Hands up, I shoot!” That he wounded. The incident is shrouded in mystery, and we must, perforce, Fla. 50, 54 So. 360, and State v. ignore it altogether in the considera- Kennade, 121 Mo. 405, 26 S., W. tion of the case.

347, a house of prostitution was held 1. Counsel for defendant insists to come within the meaning of a that the evidence is not sufficient to home or castle. A box stall at a sustain the verdict; that it is undis- fairground (Young v. State, 74 Neb. puted that deceased entered the 346, 2 L.R.A.(N.S.) 66, 104 N. W. house burglariously, for the purpose 867), a tent (State v. Holbrook, 98 of committing a felony therein; Or. 43, 188 Pac. 947, 192 Pac. 640, that defendant had a right to pro- 193 Pac. 434), a root house (People tect the house as his home, and had v. Coughlin, 67 Mich. 466, 473, 35 a right to prevent the commission N. W. 72), an office (Morgan v. of such felony therein. The state Durfee, 69 Mo. 469, 33 Am. Rep. claims that the house in question 508), a room rented and occupied was not defendant's home, and we as a bedroom (Harris v. State, 96 are cited to Hill v. State, 194 Ala. Ala. 24, 11 So. 255), and other like 11, 2 A.L.R. 509, 69 So. 941. In places, have been held pro hac vice that case, it seems, defendant killed to be a man's home, which the occudeceased in an illicit distillery, used pant has a right to defend, and from for nothing but the unlawful pur- which, in case of attack, he need not pose, and it was held that defendant retreat. 30 C. J. 83. It is not nechad no right to be there, and that essary, as will appear more clearly hence it was his duty to retreat hereafter, to determine the rights when attacked. We do not think of defendant in the house in ques. that we can apply the doctrine of tion as a whole; but he used one of that case to this. The testimony in the rooms as a bedroom on the night the case all tends to show that the of the homicide, he occupied it law. defendant, even though he had not fully as against trespassers, and we leased the home himself, had the can see no good rea

Homicide-duty right to be there—at least, as son to hold why, as to retreat from against trespassers. The house had to such trespassers,

bedroom. four rooms. Even though part of it he should be compelled to retreat if was used for the purpose of manu- attacked. We think that this room, facturing illicit liquor, it would at least, was, for the time being, his seem to be a dangerous doctrine to home and his castle, which—at go to the extent of holding that, by least, as against trespassers-he reason of that fact alone, the house had a right to defend, and from became an unlawful resort for all which, if attacked, it was not his purposes, depriving a man of the duty to retreat. right to sleep or dwell therein, or But the right to kill is based upon stand his ground in case of attack; the law of necessity or apparent for, carried to its logical conclusion, necessity. Life may be snuffed out such doctrine would compel the own- in the fraction of a second, but can er of the most sumptuous home, who never be restored. The doctrine of permits nature to do therein its per the right to protect one's habitation ilous work in producing an unlaw- gives no moral right right to kill in ful, alcoholic content in beverages, to kill another, un- defense of to flee therefrom if attacked. Even less necessity or ap

habitation. in the case relied on by the state, parent necessity, for purposes the court stated that while one's countenanced by law, exists. So house formerly meant his home, his much has been written upon the dwelling, the rule has also been ex- subject under consideration that we tended to one's place of business, or need but refer to Palmer v. State, his place of refuge; that, conse- 9 Wyo. 40, 45, 87 Am. St. Rep. 910, quently, a man's place of business 59 Pac. 793, and cases collected in must be regarded pro hac vice his the notes in 67 L.R.A. 529, 2 L.R.A. dwelling. In Russell v. State, 61 (N.S.) 66, and 25 A.L.R. 508. A ( Wyo. , 224 Pac. 420.) man has a right to prevent, in his ant, was an attack upon the latter,

home, the commis- which, under the circumstances of -right to kill to sion of a felony or the case, was of itself sufficient to prevent felony.

the infliction on any create in the mind of defendant, as of its inmates of a personal injury a reasonable man, an honest belief which may result in the loss of life that the danger to him was immior in great bodily harm. The right nent, and that the action which he is limited to prevention; it does not took was necessary for the purpose extend to punishment for an act of protecting himself from loss of already committed. Note in 67 life or infliction of great bodily inL.R.A 547, 550. After the deceased jury. If a cautious and prudent had entered, though burglariously, man, under the same circumstances, and after he was in would not would not believe

-standard of -killing for act the house, the de- the danger to have cautious and .

fendant had no been real, then the prudent man. right to kill him for the act of entry defendant cannot be said to have already committed. Horton V. been justified in his action. We State, 110 Ga. 739, 747, 35 S. E. 659. think that the determination of that The evidence shows that there was question in the case at bar was preno property in the kitchen worthy eminently for the jury, under propof stealing, and the defendant may er instructions of

Trial-question well be held to have known the fact. the court. Ward v. for jury-act of He could, therefore, have no right State, 75 Fla. 756,

prudent man. to kill deceased on the pretense of 79 So. 699; Salisbury v. Com. 146 preventing a felony in that room. Ky. 730, 143 S. W. 371; 30 C. J. 330. The right of defendant, in other 2. The court instructed the jury words, was limited (1) to the protec- that they might find the defendant tion of himself, (2) to prevent a fel- guilty of murder in the first degree, ony in the bedroom, and, probably, murder in the second degree, and (3) to prevent the deceased from manslaughter. An exception was entering that room at all. The two

The two taken to the instruction by the depurposes last mentioned are, how- fendant, and the question arises ever, virtually eliminated from the whether or not the jury were warcase, since the defendant testified ranted in finding the defendant that he shot because of his fear of guilty of murder in the second dean attack on himself. In any event, gree; whether, in other words, it he does not claim that he feared was warranted in finding that the anything else or shot for any other homicide was committed with malreason. He was not justified in ice. The evidence on that point is shooting unless there was actual or substantially undisputed. As to apparent danger of loss of life or of what constitutes malice is not easily sustaining great bodily injury. defined. The term was, to some ex

Leach v. Com. 129 tent, considered in Meldrum v. -right to shoot Ky. 497, 112 S. W. State, 23 Wyo. 12, 44, 146 Pac. 603.

595. • The witness An instruction had there been given Homan testified that the deceased in the following words: "Malice had no gun, and this is corroborated means ill will, hatred, ill-natured by the fact that none was found up- wilfulness, a wilful intention to do on the latter after he was shot, and an unlawful act; a wilful act done the jury were, we think, justified in intentionally without just cause or disbelieving the testimony of the excuse. It also denotes a state of defendant that he saw deceased mind from which acts are done rereach for a revolver. The question, gardless of others.” The instructherefore, is narrowed down to the tion was said to be inelegant, but proposition as to whether or not the not prejudicial. In its popular opening of a door, and the throwing sense, the term “malice” conveys of the flash light upon the defend the meaning of hatred, ill will, or

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