63 P. 801 | Idaho | 1901
The appellant was prosecuted for the crime-of assault with intent to murder, convicted of an assault likely to produce great bodily harm, and sentenced to three years’' imprisonment. This appeal is from the judgment. Nineteen errors are assigned for the reversal of the judgment. Most of' them pertain to the giving or refusal to give certain instructions. However, the first error assigned is that the court erred in overruling the demurrer to the information. The information states in ordinary and concise language the commission of the crime of assault with intent to murder, and it was not error to overrule the demurrer. (State v. Ellington, 4 Idaho, 529, 43 Pac. 61.)
The record, inter alia, shows the following facts: The appellant and one Allen Linke had a contest in the United States-land office, at Lewiston, over a tract of land concerning and on which the acts occurred of which the appellant was convicted' as above stated. Said Linke was successful in said contest, and the appellant appealed to the commissioner of the general land office, at Washington, D. C. During the pendency of said land contest a suit was brought by the appellant against said Linke-in the probate court of Nez Perces county for the possession of said disputed premises, which finally resulted in a judgment in favor of the appellant, and appellant was placed in the possession of said premises by writ of restitution. Thereafter, on the twelfth day of April, 1899, said Linke, his father, two-brothers, and John Wunders and Frank Bogner entered upon a. portion of said premises and began to seed the same to wheat,, as they were advised by their attorney they had a right to do..
It is contended by counsel for appellant that under the facts of this case the appellant had a right to drive Linke off from said land, and that he had the right to use such force as was necessary to do so, even if it resulted in taking life — in short, that the men’s refusal to leave the land when requested by appellant would justify him in shooting them down. We know of no principle of law that sustains such contention. It is not shown that Linke and those with him intended or endeavored to commit a felony in getting possession of said land. Indeed, all of the facts established by the evidence repel that idea. They did not intend to kill appellant or any of the persons with him, or to destroy or carry away any property belonging to him. They were not armed, and made no assault whatever on any one. Conceding that Linke and those, with him were trespassers, it is too well settled to require citation of authorities that one is not justified in taking life to repel a mere civil trespass; and especially is that true where one through stealth gets possession of land. The one entitled to the possession would not be justified in shooting the trespasser if he did not quit the premises at his request. Had appellant been at the gate