State v. Wilson , 62 Mont. 92 ( 1921 )

MR. JUSTICE REYNOLDS

delivered the opinion of the court.

Defendant was convicted of second degree assault, and judgment followed. Motion for new trial was made and overruled. Appeal has been taken from the judgment and order overruling the motion.

Appellant’s brief contains fifty-four assignments of error; but, for convenience in the disposition of the case, we will not attempt to consider these assignments specially, but will dispose of the case by reference generally to the matters of which complaint is made.

From the evidence in the ease it appears that the defendant, [1] in company with two others, met one Arthur Calder upon a certain highway in McCone county, at which place the alleged assault occurred. Calder, in company with Ms wife, was in a wagon drawn by team and had with him a colt, the ownership of which was in dispute. Calder had in Ms possession a sawed-off shotgun which was lying on the floor of the wagon beneath the seat on which he sat. He reached for his gun, and at about that time defendant struck him a number of times with a diamond willow stick about two and one-half to three feet long and a little less than two inches in diameter at its butt end. The evidence is in conflict as to whether or not defendant administered the beating before or after Calder reached for the gun. Defendant and his associates succeeded in wresting the gun from Calder, whereupon Calder and his wife jumped down from the wagon on the side opposite from Wilson. Calder and defendant both moved toward the head of the team, and in front of the team Wilson again pounded Calder with the stick. Thereafter Calder was tied with a rope to the hame of the collar of one of the mules of the team driven by defendant and associates and forced to walk for some distance. Calder claims that defendant struck him after he had been so tied, but this is denied. It is the contention of defendant that the colt belonged to him and that Calder had stolen it from among his other horses, and that he sought Calder for the purpose of arresting him and turning him over to the sheriff. Defendant also contends that in the affair he used no more force than was necessary to subdue Calder and place him under arrest, and also only such force as was necessary for his own self-defense. From our reading of the record, we are satisfied that the defendant was not given a fair opportunity for the presentation of these defenses. He was entitled to present to the jury all the substantial facts occurring at the time of the alleged assault, including the object of meeting Calder, the conversation that took place regarding the colt, and the purpose of defendant and his associates in arresting Calder, with the facts upon which such purpose was founded, together with the circumstances that would have a bearing upon the question of self-defense and the question as to whether or not defendant used more force than was necessary in making the arrest. We do not think that in these respects defendant was given the fair trial to which he was entitled.

For the reasons herein given, the judgment and order overruling motion for new trial are reversed and the cause is remanded for a new trial.

Reversed and remanded.

Mr. Chief Justice Brantly and Associate Justices Cooper, PIolloway and Galen concur.