State v. Nickerson , 126 Mont. 157 ( 1952 )

MR. JUSTICE ANGSTMAN:

(dissenting).

I think the evidence was and is sufficient to sustain the verdict and judgment and hence the judgment should be affirmed.

I concede that a person may use or threaten to use force to protect his home, life or property. The difficulty here is to square defendant’s acts with any such purpose. He frankly admitted pointing the loaded firearm at Mr. Hochalter and did so when Mr. Hoehalter was 10 or 15 feet from him and just as he entered the door of defendant’s home. There ivas then a table between them. Defendant had no cause to act in defense of himself, his home, or his property. Hoehalter had rapped on the door and entered in response to defendant’s invitation to ‘ ‘ come in. ’ ’ Hoehalter neither said nor did a thing to threaten defendant’s security in his home, his life or his property.

Defendant did not attempt to justify his actions on the ground that he was defending himself, his home or his property. This theory is first advanced by the majority opinion of this court. Defendant stated his purpose in pointing* the gun at Hoehalter to be: “I just wanted to get an .answer out of him if I could» * * í;= I just wanted to see if I could scare the truth out of him for once.” He was asked, ‘.‘You weren’t afraid of Mr. Hoehalter when he came in,” and he answered, ‘‘Oh, no.” He further testified:

“Q. You had no grudge against him [Mr. Hoehalter] then? A. Oh, no grudge. I wanted to find out if he had any authority.

“Q. You have to have a gun to find that out? A. Yes, it looks that way.

“Q. You always use a gun whenever you want to find out something? A. It seems like that’s a pretty good way to get things going, don’t you think?”

That the pointing of a loaded firearm at a person constitutes an assault is well settled. 6 C. J. S., Assault & Battery, sec. 67, p. 921, and eases cited from many states, including Montana.

Hoehalter’s lack of authority to make an arrest or to take defendatít’s gun are collateral matters that have nothing to do with defendant’s guilt or innocence of the crime here charged. It could have been, and perhaps was, used in a vain attempt to confuse the jury or to arouse prejudice on their part against Hoehalter, but has no place for discussion on the issue of the sufficiency of the evidence to justify a verdict of assault.

Likewise the misconduct of George Nicholson has nothing to do with defendant’s guilt or innocence of the assault alleged to have been committed against Hoehalter.

■. I think too it should be said that our duty in considering the sufficiency of the evidence, where there has been a verdict of guilty and where a motion for new trial has been denied as here, is to view it in the light most favorable to the state. Here there was evidence that George Nicholson had authority from Tom-Kitchen, who was looking after defendant’s place at the time, to leave some baled hay on defendant’s place. It was the presence of the hay on defendant’s premises that caused the difficulty between defendant and Nicholson, together with defendant ’s suspicion that Nicholson was the one who was stealing his logs. Hochalter testified:

■ ‘.“Q. Well, then, the day before, January 26 — or when did you first learn from George Nichols [Nicholson] that there was some trouble between him and the defendant, Clarence Nicker-son? A. Well, George" Nichols [Nicholson] had some hay there and he had got orders to get his hay out of there; that’s how they had ■ the trouble. ’ ’

Nicholson was not in defendant’s cabin when defendant arrived there on the day in question and the record does not warrant the assertion that he had taken possession of defendant’s cabin, but his team was in the feed lot and the hay was piled on the premises. Defendant himself testified on that point as follows:

;“Q. His team was there when you came home? A. In the feed lot.

‘ ‘ Q. And after you had been there a few minutes, Mr. Nicholson came there? A. Yes.”

! It is true defendant denied that he intended to kill or injure either Nicholson or Hochalter as stated in the majority opinion. That is undoubtedly the reason why the jury found him guilty of assault in the second degree only rather than in the first degree.

The fact that defendant missed some of his logs at the Zortman operations and the fact that he was annoyed because Hochalter seemingly made no'effort to locate the thief furnishes no justification for assaulting Mr. Hochalter with a loaded firearm. That seems to have been the motivating impulse that prompted the assault and even as to this Hochalter testified that defendant never complained to him that some of his logs had been taken.

I do not find in the record any proof that defendant’s premises at Hays had been looted as stated in the majority opinion.

I think on defendant’s own statement of his purpose in resorting to the use of the loaded firearm the jury was amply justified in finding a verdict of guilty, and the court properly entered judgment on the verdict and properly denied defendant’s motion for a new trial, and the judgment should be affirmed.