Hairston v. State

Chalmers, J.,

delivered the opinion of the court.

Wilson Hairston, in company with others, attempted to remove the personal effects of a laborer from the plantation of his employer, Richards, in defiance of the latter’s orders. Richards, having made advances of money or provisions to the laborer, forbade the removal of his household furniture until he was repaid. In disregard of these orders, Wilson Hairston was driving the wagon containing the furniture *692 from Richards’s plantation, when the latter attempted to stop tire wagon, saying to Hairston that the laborer, Charles Johnston, must not move until he had settled the debt, at the same time reaching out his hand, as if to take hold of the mules. Hairston drew a pistol, and pointing it at Richards, said: “ I came here to move Charles Johnston, and by G — d I am going to do it, and I will shoot any G — d-d—d man who attempts to stop my mules; ” urging his mules forward as he spoke. His manner was threatening and angry, and his voice loud and boisterous. The persons accompanying him, some of whom were armed with guns, pressed towards and around Richards, as if to aid Hairston. Deterred by the apparent danger, Richards forbore to stop the mules, and the wagon moved on.

Upon proof of these facts, Wilson Hairston and two of the men accompanying him, James Hairston and Edward Prowell, were convicted of an assault with intent to commit murder, and sentenced to two years’ imprisonment in the penitentiary. Is this conviction sustained by the proof ? It is insisted by counsel for the plaintiffs in error that there was no assault, because the threats were conditional; and reliance is had upon the old familiar cases, in one of which the assailant, laying his hand upon his sword, said, “ If it were not assize time, I would not take such language from you; ” and in another the defendant raised his whip, and said, “ Were you not an old man, I would knock you down; ” and other like cases, in all of which it was held that there was no assault. These were not conditional threats, properly so called, but rather declarations that the speaker did not intend to strike, because of an existing fact over which neither party had any control. They were expressions of a wish to strike, but a statement that he would not do so, by reason of existing facts. The case at bar is an offer to shoot, with something done towards accomplishing it, accompanied by a threat to shoot unless the opposite party complies with a certain demand, or forbears to do a certain thing. It therefore presents a case of an intentional offer to commit violence, with an overt act towards its accomplishment, based upon a conditional threat. Does this constitute an assault ? Hairston had a right to forbid Richards touching *693 bis mules. Richards had no right to retain the furniture of his laborer in order to compel payment of the debt due. The laborei- had the right to remove, and Hairston had the right to assist him. When the latter forbade Richards touching his mules, he simply forbade the commission of a trespass upon his property. A man has the legal right to protect his property against trespass, opposing force to force. If, therefore, the offer had simply been to commit a common assault, as by declaring that he would strike with his hand, or with some implement or weapon not dangerous, Hairston would have been guilty of no offence. If a man takes.my hat, or offers to do so against my will, and I, drawing back my hand, declare that I will strike if he does not forbear, I only meet the trespass by an offer to use such force as may be appropriate and necessary. But I cannot at once leap to an assault with deadly weapons, and a threat to kill. If I were to kill under such circumstances, the killing would be murder ; and hence I have made an assault which, if carried into a battery with fatal results, would constitute the gravest crime. As no trespass upon property will primarily justify the taking of life, so an offer to commit a trespass cannot justify an assault with a deadly weapon, accompanied by a threat to kill unless the party desists. The means adopted are disproportioned to' and not sanctioned by the end sought. We think, therefore, that Hairston might well have been convicted of an assault. Morgan’s Qase, 8 Ired. 186 ; Myerfield’s Case, Phillips (N. C.), 108; Smith’s Qase, 39 Miss. 521 .

But he was indicted for and convicted of an assault with intent to commit murder. Does the evidence warrant such conviction ? The intent in this class of cases is the gist of the offence. It is the intent rather than the act which raises it from a misdemeanor to a felony. It was held in Jeff’s Qase, 39 Miss. 321 , that the intent might be inferred from the act; but there the facts were wholly different from those presented by this case. In Jeff’s Qase there was an actual and well-nigh fatal stabbing with a weapon proved to be dangerous. Here there was only a conditional offer to shoot, based upon a demand which the party had a right to make. While the law will not excuse the assault actually committed in levelling the pistol *694 within shooting distance, it cannot from this fact alone infer an intent to murder. The intent must be actual, not conditional, and esj)ecially not conditioned upon non-compliance with a proper demand. The law punishes the assault because it was committed. It cannot punish the intent, because that did not exist; and, as shown by the declaration of the party, would not arise except upon the happening of a certain event, to wit, the commission of a trespass by the other party. So far from the jury being allowed to infer an intent to murder, we think that the existence of such intent was, by the evidence, clearly úegatived. In a somewhat extensive examination of the boobs, we have found no case of a conviction of assault with intent to kill or murder, upon proof only of the levelling of a gun or pistol. It follows, from these views, that while Wilson Hairston might properly have been convicted of an assault, the higher grade of crime was not made out against him.

Whether James Hairston and Prowell were guilty participants in Wilson Hairston’s unlawful act, we think doubtful under the testimony; especially so as to Prowell. If present only for the purpose of assisting in the removal of Johnston, they were guilty of no offence. If in doing this they were riotous, disorderly and threatening violence, they were guilty of a riot; but they can be held guilty of the assault committed by Wilson Hairston only upon testimony tending to show previous conspiracy or present participation in that act, or upon testimony from which the jury could rightly infer that they were present to aid and assist him in any unlawful act he might do.

Judgment reversed and new trial awarded.