161 P. 710 | Mont. | 1916
delivered the opinion of the court.
The defendant, having been charged with the crime of resisting a public officer while the latter was in the discharge of his duty in attempting to arrest the defendant, was convicted and sentenced to undergo imprisonment in the county jail and to pay a fine. He has appealed from the judgment and an order denying his motion for a new trial. He assails the validity of the conviction on the grounds that the information does not state a public offense, that the court erred to his prejudice in its rulings upon questions of evidence and in its instructions to the jury, and that the verdict is contrary to the evidence. We shall notice only the contention which questions the sufficiency of the evidence, because in our opinion a conviction could not be
The charge in the information is that the defendant did “willfully, unlawfully, and knowingly resist, delay, and obstruct a public officer named Delos McBride, * * * a duly qualified and acting deputy sheriff, who was then and there in the discharge and attempting to discharge his duty as such deputy sheriff, being then and there engaged in making an arrest of said W. J. Bradshaw for a misdemeanor committed then and there in the presence of said deputy sheriff, to-wit, unlawfully driving cattle from their accustomed range,” etc. McBride attempted to make the arrest without a warrant.
There is some conflict in the evidence as to whether the defendant was informed of the purpose of the deputy, or presumptively knew of his character and purpose, and also upon the point whether the deputy made a bona fide attempt to effect defendant’s arrest, or went further than to say to him that he was under arrest. It shows without contradiction, however, that the defendant was not engaged in committing any offense, or attempting to commit any.
It will not be necessary to discuss the evidence in detail. These facts are not controverted: The defendant resides in section 22, township 8 north, range 52 east, being the owner of 400 acres in that section. He owns several other entire sections in
The judgment and order are therefore reversed, and the cause is remanded to the district court, with directions to discharge the defendant.
Reversed and remanded.