Smith v. State, 38 So. 2d 698 (1949).
Search
Smith v. State, 38 So. 2d 698 (1949). Book View Copy Cite
Smith
v.
State.
Feb 14, 1949.
38 So. 2d 698
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
McGehee.
Code of 1942. There is no evidence to indicate that a trespass was committed \"wilfully and maliciously\" as required under Section 2406
[*175] McG-ehee, C. J.

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.

[*176] 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.

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.

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 [*177] timber cut off tbe land”, and it was admitted by bim tbat tbis offer was made witbin one or two days after it became known tbat any trees bad been cut on tbe land owned by tbe witness and others as tenants in common. Also, tbat tbe defendant made a similar offer to one of tbe other co-owners shortly thereafter.

In other words, there is no proof tbat defendant himself bad willfully and knowingly cut and removed tbe timber of another, or tbat be bad authorized bis employees to do so. Tbe civil doctrine of respondeat superior cannot render tbe defendant criminally liable for a fine and a jail sentence under tbe facts and circumstances disclosed by tbis record. Tbe fact tbat tbe defendant may be civilly liable for tbe value of tbe trees does not afford a basis for tbe conviction of tbe crime charged.

But for tbe reasons hereinbefore stated, tbe cause must be reversed and remanded.

Reversed and remanded.