DOYLE, Judge,
(after stating the facts as above.) The statute upon -which the information in this case is based (Wilson’s Rev. & Ann. St. 1903, § 2510) reads as follows:
“It
shall be unlawful for any person
to
point any pistol or any other deadly weapon whether loaded or not, at any other person or persons either in anger or otherwise.”
The first question presented arises upon the following assignments, which will be considered together:
“(1) That the court erred in failing to instruct the jury upon all the law applicable to the evidence adduced in the trial of the said action. (2) That the said court erred in giving the following instruction to the jury, to wit: ‘You are further instructed that, if you find from the evidence that the prosecuting witness, Abe Wiebe, together with his assistants, were in the act of working upon the public highway, and in the prosecution of the work got beyond the line of the road onto the defendant’s property, and were then plowing and scraping on his property, such being the fact, it would not excuse or authorize the defendant in assaulting the prosecuting witness, Abe Wiebe, by pointing a gun at him in order to require him to desist from such work. No individual has any right to assault another with a deadly weapon by pointing a gun at him because of the fact that such person is trespassing upon the land of another.’ ”
No error is manifest in the instruction quoted. It is a correct exposition of the law. A mere trespass upon the land of another, even after the trespasser has been warned to depart and has refused, does not justify the landowner to use a dangerous or deadly weapon to resist the trespass, so if one offers to strike with a deadly weapon, although he announces his purpose not to finish the act and commit the homicide if his terms are instantly complied with (although the terms be such as he has a right to exact and enforce by the rule
moliter manus imposuit),
he is guilty of an assault. The putting in use of a deadly weapon shows a wanton disregard of human life. Clark in his work on Criminal
Law, at page .145. lays down the proposition in this terse and explicit language:
“A person may resist a trespass on his property, real or personal, not amounting to a felony, or removal oi destruction of property not feloniously atttempted, by the use of any reasonable force, short of taking or endangering life; but, if he is unable to prevent it, and there is no felony attempted, he must suffer the trespass and the loss of property, and seek redress at the hands of the law, rather than commit homicide.”
See, also,
State v.
Smith, 12 Mont. 378, 30 Pac. 679.
The defendant further contends that the court erred in failing to instruct the jury upon all the law applicable to the evidence adduced upon the trial. Section 5518, Wilson’s Rev. & Ann. St. 1903, provides:
“In charging thei jury, the court must state to them all matters of law which it thinks necessary for their information in giving their verdict,” etc.
We believe, under the evidence as shown by the transcript, the court should have further instructed the jury in. regard to defendant’s right to defend against an unlawful trespass or intrusion upon the premises of the defendant, otherwise the jury might be disposed to regard his act of going to the place armed, and requesting the prosecutor to leave the premises, as placing him in the attitude of a wrongdoer; and, if his testimony is to be believed in this respect, he acted within his rights in- the protection of his premises and his person.
Section 2233, Wilson’s Rev. & Ann. St. 1903, provides:
“To use or to attempt to offer to use force or violence upon or toward the person of another is not unlawful in the following cases: * * * Third. When committed either by the party about to be injured, or by any other person in his aid or defense, in preventing or attempting to prevent an offense against his person, or any trespass or other unlawful interference with real or personal property in his lawful possession; provided the force or violence used is not more than sufficient to prevent such offense.”
As we view it, the evidence raises two issues on self-defense: First, defense of property; and, second, defense of person. The defendant had a right to go where the parties were intruding upon
bis premises and ask them to leave; and, if they did not accede to his request, he had a legal right to expel them as trespassers therefrom, provided that in so doing he did not nse more force or violence than ivas reasonably necessary- to effect that purpose. The defendant testified that he carried the shotgun for his own protection, and not for the purpose of expelling the trespassers. He says he did this because the prosecuting witness, Wiebe, had the reputation of being a quarrelsome and dangerous man. Wiebe admits that he made a threatening demonstration, and that Mr. Pulían stopped him, and that defendant, then .holding the gun by the barrel, drew it back as if to strike him as he was advancing upon him. Against this attempted assault the defendant had the right to defend his person, independent of the right of defense of his property. We are of the opinion that under all the circumstances of the case an instruction embodying the views herein-before expressed should have been given to the jury.
3. The next question to be considered is:
^‘That said court erred in refusing and ruling oxit evidence offered by the plaintiff in error of his good character, and 'of the trait of
being
a peaceable and law-abiding citizen.”
Under this assignmeent the record shows that, prior to the adjournment for the day, the defendant rested his case, and court adjourned for the day. Counsel for defendant, uxpon the convening of the court, asked leave of the court to reopen the case for the purpose of offering evidence of good character of tlie defendant as to being a peaceable and law-abiding citizen. Counsel for the territory Objected. The court sustained the objection and refused to reopen the ease. It is contended that in this the court erred, and “that the ruling of the court was such an abuse of discretion as amounted to prejudicial error and denial of a substantial right of the defendant to place his previous good character in the scales of justice to be weighed by the jury with the other facts adduced in the course of the trial.” We are constrained to sustain the contention that the refusal of the court to reopen the case and admit evidence of the good character of the defendant was such an abuse of judicial discretion as, under the
circumstances, materially affected the substantial rights of the defendant. It is not necessary to cite authorities to show that in a criminal prosecution the accused will be allowed to call witnesses to show that his character was such that would make it unlikely that he would be guilty of the particular crime of which he is charged. When a person is charged with crime, the courts of out-country permit the question of good character of the accused to be put in issue by the accused before the jury.
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DOYLE, Judge,
(after stating the facts as above.) The statute upon -which the information in this case is based (Wilson’s Rev. & Ann. St. 1903, § 2510) reads as follows:
“It
shall be unlawful for any person
to
point any pistol or any other deadly weapon whether loaded or not, at any other person or persons either in anger or otherwise.”
The first question presented arises upon the following assignments, which will be considered together:
“(1) That the court erred in failing to instruct the jury upon all the law applicable to the evidence adduced in the trial of the said action. (2) That the said court erred in giving the following instruction to the jury, to wit: ‘You are further instructed that, if you find from the evidence that the prosecuting witness, Abe Wiebe, together with his assistants, were in the act of working upon the public highway, and in the prosecution of the work got beyond the line of the road onto the defendant’s property, and were then plowing and scraping on his property, such being the fact, it would not excuse or authorize the defendant in assaulting the prosecuting witness, Abe Wiebe, by pointing a gun at him in order to require him to desist from such work. No individual has any right to assault another with a deadly weapon by pointing a gun at him because of the fact that such person is trespassing upon the land of another.’ ”
No error is manifest in the instruction quoted. It is a correct exposition of the law. A mere trespass upon the land of another, even after the trespasser has been warned to depart and has refused, does not justify the landowner to use a dangerous or deadly weapon to resist the trespass, so if one offers to strike with a deadly weapon, although he announces his purpose not to finish the act and commit the homicide if his terms are instantly complied with (although the terms be such as he has a right to exact and enforce by the rule
moliter manus imposuit),
he is guilty of an assault. The putting in use of a deadly weapon shows a wanton disregard of human life. Clark in his work on Criminal
Law, at page .145. lays down the proposition in this terse and explicit language:
“A person may resist a trespass on his property, real or personal, not amounting to a felony, or removal oi destruction of property not feloniously atttempted, by the use of any reasonable force, short of taking or endangering life; but, if he is unable to prevent it, and there is no felony attempted, he must suffer the trespass and the loss of property, and seek redress at the hands of the law, rather than commit homicide.”
See, also,
State v.
Smith, 12 Mont. 378, 30 Pac. 679.
The defendant further contends that the court erred in failing to instruct the jury upon all the law applicable to the evidence adduced upon the trial. Section 5518, Wilson’s Rev. & Ann. St. 1903, provides:
“In charging thei jury, the court must state to them all matters of law which it thinks necessary for their information in giving their verdict,” etc.
We believe, under the evidence as shown by the transcript, the court should have further instructed the jury in. regard to defendant’s right to defend against an unlawful trespass or intrusion upon the premises of the defendant, otherwise the jury might be disposed to regard his act of going to the place armed, and requesting the prosecutor to leave the premises, as placing him in the attitude of a wrongdoer; and, if his testimony is to be believed in this respect, he acted within his rights in- the protection of his premises and his person.
Section 2233, Wilson’s Rev. & Ann. St. 1903, provides:
“To use or to attempt to offer to use force or violence upon or toward the person of another is not unlawful in the following cases: * * * Third. When committed either by the party about to be injured, or by any other person in his aid or defense, in preventing or attempting to prevent an offense against his person, or any trespass or other unlawful interference with real or personal property in his lawful possession; provided the force or violence used is not more than sufficient to prevent such offense.”
As we view it, the evidence raises two issues on self-defense: First, defense of property; and, second, defense of person. The defendant had a right to go where the parties were intruding upon
bis premises and ask them to leave; and, if they did not accede to his request, he had a legal right to expel them as trespassers therefrom, provided that in so doing he did not nse more force or violence than ivas reasonably necessary- to effect that purpose. The defendant testified that he carried the shotgun for his own protection, and not for the purpose of expelling the trespassers. He says he did this because the prosecuting witness, Wiebe, had the reputation of being a quarrelsome and dangerous man. Wiebe admits that he made a threatening demonstration, and that Mr. Pulían stopped him, and that defendant, then .holding the gun by the barrel, drew it back as if to strike him as he was advancing upon him. Against this attempted assault the defendant had the right to defend his person, independent of the right of defense of his property. We are of the opinion that under all the circumstances of the case an instruction embodying the views herein-before expressed should have been given to the jury.
3. The next question to be considered is:
^‘That said court erred in refusing and ruling oxit evidence offered by the plaintiff in error of his good character, and 'of the trait of
being
a peaceable and law-abiding citizen.”
Under this assignmeent the record shows that, prior to the adjournment for the day, the defendant rested his case, and court adjourned for the day. Counsel for defendant, uxpon the convening of the court, asked leave of the court to reopen the case for the purpose of offering evidence of good character of tlie defendant as to being a peaceable and law-abiding citizen. Counsel for the territory Objected. The court sustained the objection and refused to reopen the ease. It is contended that in this the court erred, and “that the ruling of the court was such an abuse of discretion as amounted to prejudicial error and denial of a substantial right of the defendant to place his previous good character in the scales of justice to be weighed by the jury with the other facts adduced in the course of the trial.” We are constrained to sustain the contention that the refusal of the court to reopen the case and admit evidence of the good character of the defendant was such an abuse of judicial discretion as, under the
circumstances, materially affected the substantial rights of the defendant. It is not necessary to cite authorities to show that in a criminal prosecution the accused will be allowed to call witnesses to show that his character was such that would make it unlikely that he would be guilty of the particular crime of which he is charged. When a person is charged with crime, the courts of out-country permit the question of good character of the accused to be put in issue by the accused before the jury. The theory, as we view it, is a wise one. If a man in a community where he lives, by his association among his neighbors, has built up in the years of his life, be they few or many, a character among them for good morals, and of being a peaceable and law-abiding citizen, it is only right that the jury should know that fact.
As was said by Willes, J.,
In R. v. Rowton, Leigh
&
C.,
520, 540:
“It is a mistake to suppose that, because the prisoner only can raise the question of character, it is therefor a collateral issue. It is not. Such evidence is admissible because it renders it less probable that what the prosecution has averred is true; it is strictly relevant to the issue.”
In
Cancemi v. People,
16 N. Y. 506, Strong, J., said:
“The principle upon which good character may be proved is that it affords a presumption against the commission of crime. This presumption arises from the improbability, as a general rule, as proved by common observation and experience, that a person who has uniformly pursued an honest and upright course of conduct will depart from it and do an act so inconsistent with it. Such a person may- be overcome by temptation and fall into crime, and cases of that kind often occur, but they are exceptions: the general rule is otherwise: The influence of this presumption from character wall necessarily vary according to the varying circumstances of different cases. It must be slight when the accusation of crime is supported by the direct and positive testimony of credible witnesses; and it will seldom avail to control the mind in cases where the testimony, though circumstantial, is reliable, strong, and clear. But in cases where the other evidence is nearly balanced, but slightly preponderating against the defendant, the presumption from proof of good character is entitled to great weight,
and will often be sufficient to turn the scale and produce an acquittal.”
Prof. Greenleaf in language used by Mr. Justice Patterson in
Rex v. Stannard,
7 C. & P. 673, says:
“I cannot in principle make any distinction between evidence of facts and evidence of character. The latter is equally laid before the jury as the former, as being relevant to the issue of guilty or not guilty. The object of laying it before the jury is to induce them to believe, from the improbability that a person of good character should have conducted himself as alleged, that there is some mistake or misrepresentation in the evidence on the part of the prosecution, and it is strictly evidence in the case.” (3 Greenl. on Ev. § 25.)
See, also,
Wells v. Territory,
14 Okla. 436, 78 Pac. 124.
Defendant’s good character, as indicating the improbability of his doing the act charged, being essentially relevant, this evidence would have gone to the jury with special force, as under the evidence the commission of the offense charged seems doubtful.
For the reasons stated, the judgment of the lower court is reversed, and the cause remanded.
FUBMAN, PRESIDING Judge, and OWEN, Judge, concur.