State v. Howell , 21 Mont. 165 ( 1898 )

Pemberton, C. J.

The only errors assigned by counsel are directed to the giving and refusing of instructions by the district court at the trial.

The court gave'the following instructions: “No. 14. By ‘possession’ is not meant a mere temporary and passing occupancy of lands or tenements, but must be of a lasting, permanent, or substantial nature. A person entering on lands during the temporary absence of the owner or person in possession does not thereby acquire a possession of the premises or lands so entered upon. No. 15. If you find from the evidence of the case the witness Guilford was in possession of the building where the assault charged is alleged to have been committed, on the 2d day of February, and that during his temporary absence; on the- day following, defendant entered said building during said absence, such entry was not sufficient to constitute a possession of the premises. ’ ’

The court also refused to give the following instruction requested by defendant: “No. 26. The court instructs the jury that if you find and believe from the evidence that the defendant, Ed. Howell, was on the 3d day of February, 1897, on the inside of the building where the assault is alleged to have been committed, and that he had closed and fastened the doors thereof, then the defendant was in possession of said building, and the prosecuting witness, Guilford, had no right to forcibly enter the said building; and, if you find from the evidence he did so, then the defendant had the legal right to forcibly eject said Guilford by using only such force and violence as was necessary to eject said Guilford therefrom. ”

The action of the court with reference to the giving and refusing of these instructions is urged as error.

The first part of instruction No. 14, wherein the court undertakes to define what kind of possession a person may lawfully defend, is erroneous. We do not think that a person, under the law, can only defend a ‘ ‘lasting, permanent, or substantial” possession. It is doubtless true that one who unlawfully enters into the possession of premises during the temporary absence of the rightful possessor acquires no rightful possession thereof. But in this instruction the court does not tell the jury that the entry in the temporary absence of the rightful possessor must be unlawful. If a person wrong-folly in possession of a house leaves it temporarily, why may not the rightful possessor during such absence peaceably enter and take and defend his possession ? And, besides, a person may have a lawful possession, 'such as he may defend, which is not lasting or permanent.

Instruction No. 15 is likewise erroneous. The evidence shows that, during the temporary absence of Howell from the house, Guilford took possession thereof, on the 2d day of February. According to instruction No. 11, such entry during Howell’s temporary absence gave Guilford no lawful possession. Still the court charged the jury, in instruction No. 15, that Howell’s entry into the house, which, according to the evidence, was his own property, on the 3d day of February, during the temporary absence of Guilford, did not constitute possession. If Howell’s entry into his own house during the temporary absence of Guilford, who had gotten possession by force, after beating Howell with a hatchet and driving him away, gave Howell no possession, how could Guilford get lawful possession of the house in the manner the evidence shows he got it ?

Instruction No. 26, which the court refused to give to the jury, we think stated the law correctly, and should have been given. Under Subdivision 3, Section 101 of the Penal Code, a person in lawful possession of real property may defend it, if he does not use more force or violence than necessary to prevent a trespass upon or offense against the premises. The evidence shows Howell had been in the peaceable possession of the premises, without any question, for months, as the owner; and he had a right to defend such possession, provided he used no more force than was necessary for that purpose. So the only question, under the evidence, was, did the defendant in this case use more force than was necessary to defend his possession against the trespass of Guilford ? The refused instruction submitted this question fairly to the jury, and it was error to refuse it. If a man may not lawfully defend his property — his home — by the use of whatever force it is necessary to use under the circumstances of the case, then he is at the mercy, of every tramp, trespasser, or even burglar, who comes along, and enters and takes possession, during his temporary absence therefrom.

On account of the foregoing errors, we think the judgment and order appealed from should be reversed, and the cause is remanded, with directions to the district court to grant a new trial.

Reversed and Remanded.

Hunt and Pigott, JJ., concur.