154 F. 445 | 9th Cir. | 1907
after stating the case as above, delivered the opinion of the court.
It is contended on behalf of the plaintiff in error that if the defense had been allowed to prove that Waskey, the prosecuting witness, admitted Gray’s ownership of a one-half interest in the mining claim, and conceded the right
It is contended that the court gave contradictory and inconsistent instructions, which were calculated to mislead the jury, to the prejudice of the plaintiff in error. The court instructed the jury as follows: “A trespass merely against the property of another, not his dwelling house, is not a sufficient provocation to warrant the owner in using a dangerous weapon; therefore, if you find that defendant Johnston was representing any one having an interest in the lands mentioned, and that Johnston armed himself for the purpose of making an entrance on said lands, he would have no right to do so.”
Again, the court instructed the jury as follows: “You have nothing to do with the question of title, gentlemen, in your consideration of this case. If the ground were the defendant’s and Waskey were in fact a trespasser, the law of Alaska provides a lawful way of obtaining possession of the property wrongfully withheld by another, and therefore, if you find that the assault, if there was an assault within the definition I have given you, was committed as charged, you will give no heed whatever to the question of who owned the ground.”
And again: “The person or persons in actual foot possession of the ground mentioned in the testimony had a right to command any intruder to depart, and, if he refused, to eject him from the premises by the use of sufficient physical force,” etc.
It is said that in these charges the court in one breath instructed the jury that they had nothing to do with the question of title, and in the next said that if they found that the plaintiff in error was representing any one having an interest in the lands mentioned, and that he armed himself for the purpose of making an entry on said lands, he
It is contended further that the court erred in giving the instructions above referred to, in that he assumed therein as a fact that the revolver referred to as being in the possession of the plaintiff in error was a dangerous weapon within the contemplation of the statute. This particular feature of the instruction was not brought to the attention of the trial court, was not made the subject of an exception, and is not specified in the assignments of error. But aside from this, we do not find that the instructions were, on the ground suggested, justly subject to criticism. It was the contention of the prosecution that the revolver used by the plaintiff in error was a dangerous weapon. The court instructed the jury as to the right of the plaintiff in error to commit an assault with a dangerous weapon, and said: “If, however, you should find from the evidence that the revolver used by Johnston was a dangerous weapon under the circumstances of its use at the time of the affray, then you would not be justified in rendering a verdict of simple assault.”
Error is assigned to the language of the district attorney during his closing argument to the jury as follows: “Then came this man Johnston, this hired gun-fighter, this hired ruffian.” Timely exception was taken to this language by counsel for the plaintiff in error, but the record discloses no request to the court to instruct the jury in regard to the same, and, since the record does not contain the whole of the charge to the jury, we do not know that
Error is assigned to the refusal of the court to give to the jury certain instructions which were requested on behalf of the plaintiff in error. We cannot consider this assignment, for the reason that the whole of the charge given by the court to the jury is not in the record. Where the record does not contain the whole charge, it will be presumed that the court properly charged upon every branch of the case, and it will be presumed that further instructions were given to correctly modify erroneous instructions shown by the record, if it is very clear that these could have' been so corrected and the record is incomplete. Bennett v. Harkrader, 158 U.S. 441, 15 S.Ct. 863, 39 L.Ed.
We find no error for which the judgment should be reversed. It is accordingly affirmed.