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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.]

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Homicide, § 47 bedroom. 2. One occupying as a bedroom a room in a house in which intoxicating liquors are illegally manufactured is not compelled to retreat therefrom if attacked by trespassers.

duty to retreat from

[See 13 R. C. L. 828; 3 R. C. L. Supp. 90.]

Homicide, § 43 - right to kill to prevent felony.

3. A man has a right to prevent in his home the commission of a felony or the infliction on any of its immates of an injury which may result in loss of life, or great bodily harm; but cannot inflict punishment for acts already done.

[See 13 R. C. L. 841; 4 R. C. L. Supp. 836.] Homicide, § 42 killing for act of entry.

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in asking questions.

13. It is error in a prosecution for homicide to ask accused when he paid a fine for moonshining.

[See 28 R. C. L. 621; 3 R. C. L. Supp. 1586; 4 R. C. L. Supp. 1833. See also notes in 6 A.L.R. 1608; 25 A.L.R. 339.] Appeal, § 767-nonprejudicial error.

14. Merely asking one on trial for homicide when he paid a fine for moonshining cannot have had sufficient influence upon the verdict to require reversal, if there was other evidence in the case connecting the defendant with the illicit manufacture of whisky.

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16. Where errors of the trial require reversal of a conviction for murder, the appellate court may affirm the judgment for manslaughter, giving the state a right to new trial if the evidence warrants it, and the errors do not affect a conviction for such an offense.

[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 appellant.

Mr. David J. Howell, Attorney General, for the State.

Blume, J., delivered the opinion of the court:

The defendant, Mike Sorrentino, was convicted of murder in the second degree and sentenced to the penitentiary for a period of from thirtyfive to forty years, and he appeals.

The homicide in question occurred about 10 o'clock on the night of December 21, 1922, in a cement block house on the corner of Eleventh street and Capitol avenue, in the city of Cheyenne. The house faces north on Eleventh street and has a front and a rear entrance, and a front and a rear porch. It is a one-story house, which has a basement to which access may be had by a stairway leading from the kitchen. Only four rooms are in the house, of almost equal dimensions. The south two rooms are the two rooms mainly concerned in this case, and consist of a kitchen, on the southeast

corner of the house, and a bedroom, on the southwest corner of the house. The door leading from the south porch into the kitchen is close to the west end of the latter, and swings inward from east to west; the door-and the only door-leading into the bedroom is close to the south side of the house, swinging inward from north to south. In other words, the two doors mentioned are close to each other and in the same corner.

The decedent, one George McGough, was about twenty-four years of age. He and Vance Homan, a boy of about seventeen years of age, met about 7 o'clock of the evening of the homicide, with the intention to go into the house in question for the purpose of stealing some socalled "moonshine whisky." They had been in the house on the previous Sunday, and had found the door unlocked, though closed, had gone in, and found nothing. It is not clear just what they did at 7 o'clock on the night in question, but they

(— Wyo. —, 224 Pac. 420.)

did not go in. They returned at 8 o'clock, tried to enter by the rear door, but, finding it locked, went away, the deceased intending to get some keys which would open the house. These keys were procured by said deceased, and about 9 o'clock he, in company with said Vance Homan and two other boys, returned to the house. The two latter were stationed round the house as guards. The deceased and Vance Homan went onto the back porch, unlocked the door with a key, and entered the kitchen. The night was dark, no light was in the house, and its windows were covered. The deceased was equipped with a flash light, and used it to some extent in the kitchen, no doubt for the purpose of finding some whisky. Vance Homan testified that they were in that room for perhaps two minutes. They were there, no doubt, just long enough to discover that no whisky was to be found, and they then proceeded toward the bedroom already mentioned. It was open to the extent of 5 inches. Homan pushed the door open, and the deceased used his flash light, throwing it upon the face and upper part of defendant, who was standing on or by a bed in the middle of the room, and who thereupon, so Homan testified, shouted, "Hands up!" and almost immediately thereafter began to shoot. Two or three shots were fired from a shotgun, one of which struck the deceased, inflicting a wound from which death resulted soon after. does not appear whether Homan or deceased threw up their hands as commanded.

It

The defendant's testimony varied to some extent from that of the witness Homan. According to him he heard four men come onto the porch, trying two or three keys before the kitchen door opened; that he was awakened from sleep; that he dressed as soon as he heard the noise on the porch; that he was frightened; that when the bedroom door was pushed open and the flashlight thrown on him, he heard someone say, "Hands up, I shoot!" That he

himself shouted, "Hands up, come from me!" That he saw the deceased with his hands back and pulling a revolver, whereupon he shot. After the shooting, defendant fled precipitately to Colorado. Testimony of reputable witnesses shows him to have had a reputation as a peaceable and law-abiding citizen.

The north two rooms in the house and the basement were, upon examination immediately after the shooting, found to be empty. In the kitchen were only some empty glass bottles, a bushel basket, a strainer used in straining liquids, with a cloth over it that was wet. A strong odor of "moonshine whisky" was in the room. In the bedroom was a mattress pad, which had on it one comfort, two army blankets, and a pillow, and had the appearance of having been occupied by someone a short time before; there was also an oil stove, then burning. The defendant claimed the house to be his home. The state, however, introduced evidence tending to show the contrary, and that it was used for the unlawful purpose of the manufacture of moonshine whisky. Among other things, it was shown that a keg of 5 gallons of that liquid was found in the house some three or four days prior to the date of the homicide. Some of the witnesses testified that the defendant had been frequently seen going to and from the house, with baskets, gunny sacks, grips, and bags, which, whatever its object, tended to show, if nothing more, that the defendant had a right in and to the house. It may be mentioned that it seems clear that at the time of the shooting a Smith & Wesson revolver was also used in the kitchen, and a shot or shots fired therewith, one shot lodging behind the lock in the kitchen door. The circumstances appear to negative the assumption that it might have been used by the defendant. The witness Homan testified that neither he nor the deceased had the revolver, and none was found on the latter when seen after he was wounded. The incident is shrouded

in mystery, and we must, perforce, ignore it altogether in the consideration of the case.

1. Counsel for defendant insists that the evidence is not sufficient to sustain the verdict; that it is undisputed that deceased entered the house burglariously, for the purpose of committing a felony therein; that defendant had a right to protect the house as his home, and had a right to prevent the commission of such felony therein. The state claims that the house in question was not defendant's home, and we are cited to Hill v. State, 194 Ala. 11, 2 A.L.R. 509, 69 So. 941. In that case, it seems, defendant killed deceased in an illicit distillery, used for nothing but the unlawful purpose, and it was held that defendant had no right to be there, and that hence it was his duty to retreat when attacked. We do not think that we can apply the doctrine of that case to this. The testimony in the case all tends to show that the defendant, even though he had not leased the home himself, had the right to be there-at least, as against trespassers. The house had four rooms. Even though part of it was used for the purpose of manufacturing illicit liquor, it would seem to be a dangerous doctrine to go to the extent of holding that, by reason of that fact alone, the house became an unlawful resort for all purposes, depriving a man of the right to sleep or dwell therein, or stand his ground in case of attack; for, carried to its logical conclusion, such doctrine would compel the owner of the most sumptuous home, who permits nature to do therein its perilous work in producing an unlawful, alcoholic content in beverages, to flee therefrom if attacked. Even in the case relied on by the state, the court stated that while one's house formerly meant his home, his dwelling, the rule has also been extended to one's place of business, or his place of refuge; that, consequently, a man's place of business must be regarded pro hac vice his dwelling. In Russell v. State, 61

Fla. 50, 54 So. 360, and State v. Kennade, 121 Mo. 405, 26 S., W. 347, a house of prostitution was held to come within the meaning of a home or castle. A box stall at a fairground (Young v. State, 74 Neb. 346, 2 L.R.A.(N.S.) 66, 104 N. W. 867), a tent (State v. Holbrook, 98 Or. 43, 188 Pac. 947, 192 Pac. 640, 193 Pac. 434), a root house (People v. Coughlin, 67 Mich. 466, 473, 35 N. W. 72), an office (Morgan v. Durfee, 69 Mo. 469, 33 Am. Rep. 508), a room rented and occupied as a bedroom (Harris v. State, 96 Ala. 24, 11 So. 255), and other like places, have been held pro hac vice to be a man's home, which the occupant has a right to defend, and from which, in case of attack, he need not retreat. 30 C. J. 83. It is not necessary, as will appear more clearly hereafter, to determine the rights of defendant in the house in question as a whole; but he used one of the rooms as a bedroom on the night of the homicide, he occupied it lawfully as against trespassers, and we can see no good rea- Homicide-duty son to hold why, as to retreat from to such trespassers, he should be compelled to retreat if attacked. We think that this room, at least, was, for the time being, his home and his castle, which-at least, as against trespassers-he had a right to defend, and from which, if attacked, it was not his duty to retreat.

bedroom.

habitation.

But the right to kill is based upon the law of necessity or apparent necessity. Life may be snuffed out in the fraction of a second, but can never be restored. The doctrine of the right to protect one's habitation gives no moral right right to kill in to kill another, un- defense of less necessity or apparent necessity, for purposes countenanced by law, exists. So much has been written upon the subject under consideration that we need but refer to Palmer v. State, 9 Wyo. 40, 45, 87 Am. St. Rep. 910, 59 Pac. 793, and cases collected in the notes in 67 L.R.A. 529, 2 L.R.A. (N.S.) 66, and 25 A.L.R. 508. A

(- Wyo. -, 224 Pac. 420.)

man has a right to prevent, in his home, the commis

-right to kill to sion of a felony or prevent felony. the infliction on any of its inmates of a personal injury which may result in the loss of life or in great bodily harm. The right is limited to prevention; it does not extend to punishment for an act already committed. Note in 67 L.R.A. 547, 550. After the deceased had entered, though burglariously, and after he was in -killing for act the house, the defendant had

of entry.

no

V.

right to kill him for the act of entry already committed. Horton State, 110 Ga. 739, 747, 35 S. E. 659. The evidence shows that there was no property in the kitchen worthy of stealing, and the defendant may well be held to have known the fact. He could, therefore, have no right to kill deceased on the pretense of preventing a felony in that room. The right of defendant, in other words, was limited (1) to the protection of himself, (2) to prevent a felony in the bedroom, and, probably, (3) to prevent the deceased from entering that room at all. The two purposes last mentioned are, however, virtually eliminated from the case, since the defendant testified that he shot because of his fear of an attack on himself. In any event, he does not claim that he feared anything else or shot for any other reason. He was not justified in shooting unless there was actual or apparent danger of loss of life or of sustaining great bodily injury. Leach v. Com. 129 -right to shoot Ky. 497, 112 S. W. 595. The witness Homan testified that the deceased had no gun, and this is corroborated by the fact that none was found upon the latter after he was shot, and the jury were, we think, justified in disbelieving the testimony of the defendant that he saw deceased reach for a revolver. The question, therefore, is narrowed down to the proposition as to whether or not the opening of a door, and the throwing of the flash light upon the defend

in self-defense.

ant, was an attack upon the latter, which, under the circumstances of the case, was of itself sufficient to create in the mind of defendant, as a reasonable man, an honest belief that the danger to him was imminent, and that the action which he took was necessary for the purpose of protecting himself from loss of life or infliction of great bodily injury. If a cautious and prudent man, under the same circumstances, would would not believe -standard of the danger to have cautions and been real, then the prudent man. defendant cannot be said to have been justified in his action. We think that the determination of that question in the case at bar was preeminently for the jury, under proper instructions of Trial-question the court. Ward v. for jury-act of State, 75 Fla. 756, prudent man. 79 So. 699; Salisbury v. Com. 146 Ky. 730, 143 S. W. 371; 30 C. J. 330.

2. The court instructed the jury that they might find the defendant guilty of murder in the first degree, murder in the second degree, and manslaughter. An exception was taken to the instruction by the defendant, and the question arises whether or not the jury were warranted in finding the defendant guilty of murder in the second degree; whether, in other words, it was warranted in finding that the homicide was committed with malice. ice. The evidence on that point is substantially undisputed. As to what constitutes malice is not easily defined. The term was, to some extent, considered in Meldrum V. State, 23 Wyo. 12, 44, 146 Pac. 603. An instruction had there been given in the following words: "Malice means ill will, hatred, ill-natured wilfulness, a wilful intention to do an unlawful act; a wilful act done intentionally without just cause or excuse. It also denotes a state of mind from which acts are done regardless of others." The instruction was said to be inelegant, but not prejudicial. In its popular sense, the term "malice" conveys the meaning of hatred, ill will, or

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