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murder to man

( Wyo. - 224 Paco, 420.) cases. We think, however, that in consideration, we are still of the view of all of the evidence in this opinion that as to whether or not case, it is properly exercised in the the defendant was guilty of mancase at bar. Manslaughter, though slaughter was, under the facts of it may be a distinct crime from that this case, a question for the jury. of murder, is, nevertheless, included We do not think that such holding in the latter. State v. Quan Sue, 191 is in any way inconsistent with the Iowa, 144, 179 N. W. 972, 976; Peo- holding of this court in Palmer v. ple v. Farrell, 146 Mich. 264, 274, State, 9 Wyo. 40, 87 Am. St. Rep. 109 N. W. 440; Com. v. McPike, 3 910, 59 Pac. 793, nor do we think, as Cush. 181, 50 Am. Dec. 727. The argued, that by our holding every verdict of murder in the second de- man who, in the nighttime, shoots gree necessarily implies the finding an invading burglar subjects himof all of the facts essential to the of- self to being found guilty of, at fense of voluntary manslaughter, least, manslaughter. and the defendant has had the bene- Nor have we found any good reafit of a trial for that offense as fully son to reverse our holding that this as though the information herein court has the right to modify the

had contained that judgment of the trial court. In ad-reduction of charge only. The

dition to the cases cited in the origislaughter.

verdict is, as we nal opinion sustaining our holding have seen, excessive, and should be we refer to State v. Ramirez, 34 treated as illegal as to such excess, Idaho, 623, 29 A.L.R. 297, 203 Pac. but as to such excess only.

279; State v. Freidrich, 4 Wash. We do not desire to be arbitrary 205, 29 Pac. 1055, 30 Pac. 328, 31 herein and direct absolutely what Pac. 332; State v. Lillie, 60 Wash. shall be done, but prefer, in this 200, 110 Pac. 801. See also Glover particular case, to make a condition- .v. State, 7 Ga. App. 628, 67 S. E. al order. The state, accordingly, 687; Harris v. State, 119 Ark. 85, may elect, by writing filed in this 177 S. W. 421. We are cited to court within thirty days, to take a State v. O'Donnell, 176 Iowa, 337, new trial, in which event the judg- 157 N. W. 870, where it was held ment will be reversed, and the cause that, inasmuch as the statute grants remanded for a new trial. Unless the authority to the jury to fix the that is done, the judgment will be punishment in first-degree murder reversed as to murder in the second either at death or at life imprisondegree and affirmed for manslaugh- ment, the supreme court has no auter, and the case remanded to the thority to modify the judgment from district court, with direction to

a sentence of death to one for life cause the prisoner to be brought be- imprisonment. The contrary is held fore it to be resentenced for that by the supreme court of Oklahoma crime, taking into consideration the

under a long line of decisions comtime already served by the defend- mencing with Fritz v. State, 8 Okla. ant, and to make all other necessary Crim. Rep. 342, 128 Pac. 170. To orders not inconsistent herewith.

the same effect is State v. Ramirez, Potter, Ch. J., and Kimball, J.,

supra. Further than that, the state concur.

of facts dealt with in the O'Donnell A petition for rehearing having Case differs from the facts dealt been filed, Blume, J., on August 26, with in this case. We need not 1924, handed down the following pause to point out the differences. additional opinion (- Wyo. -, 228 We are not persuaded that we Pac. 283):

should change our ruling because of A petition for rehearing was filed

that case. herein by defendant on various

The petition for rehearing is degrounds. The right for an oral nied. argument having been asked, and the court desiring to be more fully Potter, Ch. J., and Kimball, J., advised, it was granted. After due concur.

ANNOTATION.

Homicide or assault in defense of habitation or property.

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This annotation is supplemental to the annotations in 25 A.L.R. 508, and 32 A.L.R. 1541.

The reported case (STATE V. SORRENTINO, ante, 1477), it is to be noted holds that the right to protect one's habitation gives no moral right to kill another, unless necessity, or apparent necessity, for purposes countenanced by law, exists, and that the right is limited to prevention, and does not extend to punishment for entry or other act already committed. See I. a, 1, (b), pp. 517 et seq., of the annotation in 25 A.L.R. 508, for necessity of reality of threatened danger to one's habitation as justification for homicide.

In Mack v. State (1924) Tex. Crim. Rep. 263 S. W. 912, upon an indictment for homicide, the court expressed an opinion that under the law of that state one has the same right to defend against an illegal invasion of habitation or home that he has to defend himself. Said the court: "We think the court in error in declining to give the jury the law of appellant's right io defend against an unlawful entry into his home. There seems no controversy over the fact that only a few minutes before the shooting deceased had threatened the life of appellant, and had gone away, and was returning to appellant's house and, over a warning not to come in, was proceeding to enter. This was following a threat made shortly before to kill appellant, and was made as part of a difficulty in which deceased used a deadly weapon. It seems to be the holding of this court that one has the same right to defend against an illegal invasion of habitation or home which he has to defend himself; and, there being no question of the lawful possession and occupancy of the house and home by appellant, and of his forbidding the entry of deceased, and his warning him not to come into the house, the court should have given the substance of the special charge asked in regard to appellant's right to de

fend his habitation. Richardson v. State (1879) 7 Tex. App. 493; Allen v. State (1902) Tex. Crim. Rep. -, 66 S. W. 675; McGlothlin v. State (1899)

Tex. Crim. Rep. 53 S. W. 872; French v. State (1909) 55 Tex. Crim. Rep. 538, 117 S. W. 848; Wells v. State (1911) 63 Tex. Crim. Rep. 618, 141 S. W.96." See I. a, pp. 508 et seq., of the annotation in 25 A.L.R. 508, for general rule as to homicide in repelling forcible entry into one's habitation.

In Guyer v. Smullen (1924) Minn, 199 N. W. 465, holding that one who unlawfully invades the premises of another and assaults the proprietor may not, in an action for assault and battery, plead as self-defense the fact that the proprietor resorted to force in an attempt to repel the invasion, it was said: "Plaintiff

was not obliged to await invasion. He had the right, if he chose, to prevent the smashing of his door by opening it and meeting the invaders with a counter offensive. Defendant tried to enter where he knew he was not wanted. If plaintiff did all that defendant claims,—that is, attempted to push him back and out,even though the pushing was done on defendant's face with force, plaintiff was within his right. .

It was his privilege to defend himself and his property, and to do it in any reasonable manner.

Plaintiff was on his own premises, where he had a right to be. Defendant was attempting to go where he had no right to go.

By statute, a persor fully use all the force necessary to prevent an offense against his person, or a trespass or other unlawful interference with his real or personal property.' Gen. Stat. 1913, § 8634."

So, where one creates a disturbance at the residence of another, and is requested to leave the premises, he has no right to plead as a defense to killing the owner that the latter undertook to use force to drive him from the premises. Cotton v. State (1924) – Miss. —, 100 So. 383. Said the court:

may law

"It is the law that a person has the right to preserve the peace of his own home and to evict from his home and premises persons who are creating disturbances upon his premises."

And in Brookside-Pratt Min. Co. v. Booth (1924) — Ala. —, 33 A.L.R. 417, 100 So. 240, an action for damages for assault and battery, it was held that a merchant, as proprietor of a commissary or a storekeeper, has the right to withdraw the express or implied invitation to trade from such persons as he may desire, and thereafter, if such

persons come into his store or commissary, he may eject them by the use of no more force than is reasonably necessary under the circumstances of the particular case, if such persons refuse to leave after notice and a reasonable time in which to do so. It was said, however, that one rightfully in the place at the time when he is ejected may recover for such an assault committed upon him. See II. b, pp. 553 et seq., of the annotation in 25 A.L.R. 508, for trespass as justification for assault.

L. S. E.

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Malicious prosecution, § 16 — liability of prosecuting attorney.

1. The prosecuting attorney is not liable for malicious prosecution of a criminal action where the determination of the question whether or not to prosecute is within his official authority.

[See note on this question beginning on page 1504.] Malicious prosecution, 81- action Statutes, § 233 construction not favored.

in pari materia. 2. An action for the malicious 5. In the construction of a particuprosecution of a criminal cause is not lar statute, all acts relating to the a favorite of the law.

same subject will be read in connec[See 18 R. C. L. 11; 3 R. C. L. Supp. tion with it, as together constituting 774.)

one law. District and prosecuting attorneys, §

[See 25 R. C. L. 1060; 3 R. C. L 3 — discretion.

Supp. 1439; 4 R. C. L. Supp. 1619.] 3. A district attornev, in deter- Malicious prosecution, § 18 proba. mining whether or not to institute

ble cause. a prosecution, is a quasi judicial off

Every prosecution for crime cer, who possesses a certain discre

should be based on probable cause. tion as to when, how, and against . whom to proceed.

Malicious prosecution, 18 — proba[See 22 R. C. L. 96.)

ble cause defined. Evidence, & 94

7. Probable cause for prosecution statutes

presumption as to knowledge of other law.

for a crime depends upon the honest

and reasonable belief of the person 4. The provision of a prohibition law defining the duties of the prosecut

commencing the prosecution.

[See 18 R. C. L. 35; 3 R. C. L. Supp. ing attorney will be presumed to have

779; 4 R. C. L. Supp. 1175.] been enacted with full knowledge of the existence of a prior statute in- District and prosecuting attorneys, 8 3 vesting such officer with discretion.

[See 25 R. C. L. 1063; 3 R. C. L. 8. In the absence of statutory reguSupp. 1440; 4 R. C. L. Supp. 1619.] lations, the prosecuting attorney in

34 A.L.R.-94.

power of.

his district possesses the power of the Pleading, $ 611 - effect of demurrer. attorney general at common law.

10. Upon demurrer, all well-pleaded Courts, § 2 - jurisdiction what allegations of the complaint are acgoverns.

cepted as true. 9. Jurisdiction depends upon the al- [See 21 R. C. L. 506; 3 R. C. L Supp. legations, and not upon the facts. 1163; 4 R. C. L. Supp. 1418.]

(Burnett and Rand, JJ., dissent.)

APPEAL by plaintiff from a judgment of the Circuit Court for Umatilla County (Phelps, J.) sustaining a demurrer to and dismissing an action as to defendant Keator, brought to recover damages for alleged malicious prosecution. Affirmed. Statement by Brown, J.:

Messrs. Homer I. Watts and E. C. The judgment in this case having Prestbye, for appellant: been reversed by opinion of his On demurrer to the complaint the court, reported in – Or. - 222

material allegations of the pleadings Pac. 318, we have a gain considered

are deemed admitted.

Fields v. Crowley, 71 Or. 141, 142 it on reargument.

Pac. 360; Hoffman v. Toft, 70 Or. 488, This is an action for damages for

52 L.R.A. (N.S.) 944, 142 Pac. 365; an alleged malicious prosecution of

Oregon Home Builders v. Bisman, 88 Homer I. Watts by George Gerking, Or. 611, 172 Pac. 114. Alf Oftedahl, R. 1. Keator, Mrs. Every person within this state is Charles Betts, and N. H. Desper, subject to its Constitution and laws, arising from an averred violation of and the fact that an individual occuthe prohibition liquor law by Watts,

pies an official position in the state the plaintiff herein. The complaint

will not protect him from the consealleges the institution of a judicial

quences of his violation of its laws,

or the infringement of the rights of proceeding against Watts, the want

others. of probable cause for such original Wiegand v. West, 73 Or. 249, 144 proceedings, malice, the termina- Pac. 481; Taylor Sands Fishing Co. v. tion of the original proceedings in State Land Bd. 56 Or. 157, 108 Pac. favor of this plaintiff, and that 126; Salem Flouring Mills Co. v. Lord, plaintiff has sustained damages in 42 Or. 82, 69 Pac. 1033, 70 Pac. 832; the sum of $50,000. The defendant

Corvallis & E. R. Co. v. Benson, 61 Or. R. I. Keator answered by filing a

359, 121 Pac. 418; Franks v. Smith, 142

Ky. 232, L.R.A.1915A, 1141, 134 S. W. separate demurrer, in which, among

484, Ann. Cas. 1912D, 319; Murdock other things, he averred the fail

Parlor Grate Co. v. Com. 152 Mass. ure of the complaint to state facts

28,8 L.R.A. 399, 24 N. E. 854. sufficient to constitute a cause of ac- An officer of the law whose acts are tion. It was stipulated, and the is- ministerial is personally liable to one sue of law made by the demurrer injured by his acts while in the perwas tried upon the theory, that de- formance of his duty, if he be guilty fendant Keator, at all the times

of misfeasance, malfeasance, or nonmentioned in the complaint, was the

feasance in the performance.

22 R. C. L. 488, SS 159, 161, 162: prosecuting attorney for the dis

Walsh v. Brown, 194 Mass. 317, 120 trict of Umatilla county, Oregon, Am. St. Rep. 556, 80 N. E. 465; Apfeland that this is an action for mali

bacher v. State, 160 Wis. 565, 152 N. cious prosecution. From a judgment W. 144; Tracy y. Swartout, 10 Pet. 80, sustaining the prosecuting attor- 9 L. ed. 354; Grace v. Mitchell, 31 Wis. ney's. demurrer and dismissing the

533, 11 Am. Rep. 613; 29 Cyc. 1440action as to him, plaintiff appeals

1442. to this court, assigning error of the

A judicial officer exercising only a

special and limited authority, acting court, on the face of the record, in

in a matter over which he has no jurissustaining defendant Keator's sep- diction, or who, having jurisdiction arate demurrer, and entering judg- over the matter, wilfully, maliciously, ment.

or corruptly exceeds his jurisdiction, Or., 228 Pac. 195.) is liable in damages to one injured by L. ed. 618; Monnier v. Godbold, 116 his acts.

La. 165, 5 L.R.A.(N.S.) 463, 40 So. 604, Piper v. Person, 2 Gray, 120, 61 Am. 7 Ann. Cas. 768; Carpenter v. Sibley, Dec. 438; Clarke v. May, 2 Gray, 410, 153 Cal. 215, 15 L.R.A.(N.S.) 1143, 126 61 Am. Dec. 470; Bigelow v. Stearns, Am. St. Rep. 77, 94 Pac. 879, 15 Ann. 19 Johns. 39, 10 Am. Dec. 189; Taylor Cas. 484. v. Doremus, 16 N. J. L. 473; Reed v. A judge of a superior court or court Taylor, 25 Ky. L. Rep. 1793, 78 S. W. of general jurisdiction is liable in 892; Mitchell v. Galen, 1 Alaska, 339; damages in a civil action by one inChambers v. Oehler, 107 Iowa, 155, 77 jured by his acts, if he has no jurisN. W. 853; Cagney V. Wattles, 121 diction over the person whom or subMich. 469, 80 N. W. 245; Robertson v. ject-matter which he is attempting to Parker, 99 Wis. 652, 67 Am. St. Rep.

act upon. 889, 75 N. W. 425; Bowman v. Seaman, Grove v. Van Duyn, 44 N. J. L. 654, 152 App. Div. 690, 137 N. Y. Supp. 568; 43 Am. Rep. 412; 15 R. C. L. 543, § 31; Grossman v. Davis, 117 Ill. App. 354; Bradley v. Fisher, 13 Wall. 335, 20 L. Reddish v. Shaw, 111 Ill. App. 337; ed. 646; Stewart v. Cooley, 23 Minn. McCarg v. Burr, 186 N. Y. 467, 79 N. 347, 23 Am. Rep. 690; Taylor v. DoreE. 715; Starrett v. Connolly, 150 App. mus, 16 N. J. L. 473; Broom v. DougDiv. 859, 135 N. Y. Supp. 325; Carpen- lass, 175 Ala. 268, 44 L.R.A. (N.S.) 164, ter v. Sibley, 153 Cal. 215, 15 L.R.A. 57 So. 860, Ann. Cas. 1914C, 1155. (N.S.) 1143, 126 Am. St. Rep. 77, 94 An action will lie to recover damPac. 879; Kelly v. Bemis, 4 Gray, 83, ages caused by an executed conspiracy 64 Am. Dec. 50; Stephens v. Wilson, in the institution of a malicious prose115 Ky. 27, 72 S. W. 336.

cution, where it appears that the prosAn officer of the law, by the nature ecution was malicious and without of his office, may have both ministerial probable cause. and judicial duties to perform, and 12 C. J. 588, § 109. when performing ministerial matters Messrs. C. Z. Randall and Fee & his personal liability to one injured Fee, for respondent: thereby is determined by the rules Where plaintiff estops himself by governing ministerial officers. When admissions of record from relying upperforming a judicial act his liability on the allegations of conspiracy as a to one injured thereby is determined separate tort, these expressions should by the law governing judicial officers be considered only as they relate to an exercising only special and limited au- action in malicious prosecution. thority.

Stewart v. Cooley, 23 Minn. 347, 23 Wilkes v. Dinsman, 7 How. 89, 12 L. Am. Rep. 690; Heywood Bros. & W. Co. ed. 618; Tompkins v. Sands, 8 Wend. v. Doernbecher Mfg. Co. 48 Or. 359, 462, 24 Am. Dec. 46; People v. May, 86 Pac. 357, 87 Pac. 530. 251 Ill. 54, 95 N. E. 999, Ann. Cas. If there is not a clear absence of all 1912C, 510; Horne v. Pudil, 88 Iowa, jurisdiction, judges of superior courts 533, 55 N. W. 485; Taylor v. Doremus, and general jurisdiction are not liable 16 N. J. L. 473.

to civil action for their acts, even When an officer is invested with dis- when such acts are in excess of their cretion as a prosecuting or district at- jurisdiction, and are alleged to have torney, and is empowered to exercise been done maliciously and corruptly. his judgment in matters brought be- The test here is whether the act is fore him, he is termed a semi or quasi done as judge. judicial officer, having only special 15 R. C. L. 455, 456, Judges, & 32; and limited judicial authority, and Bradley v. Fisher, 13 Wall. 335, 20 L. when acting therein he is given im- ed. 646; Lange v. Benedict, 73 N. Y. 12, munity from liability to persons who 29 Am. Rep. 80; Busteed v. Parsons, 54 may be injured as a result of an er- Ala. 393, 25 Am. Rep. 688. roneous decision, only when the acts The same rule applies to a justice of complained of are done within the peace, or officer of other inferior court, scope of the officer's authority, and and when he acts within his jurisdicwithout wilfulness, malice, or corrup- tion he is not liable, though he acts tion.

maliciously and corruptly, but if he 22 R. C. L. 480; Garff v. Smith, 31 exceeds the limits of his jurisdiction Utah, 102, 120 Am. St. Rep. 924, 86 he may be. Pac. 772; Chamberlain v. Clayton, 56 Coleman v. Roberts, 113 Ala, 323, 36 Iowa, 331, 41 Am. Rep. 101, 9 N. W. L.R.A. 84, 59 Am. St. Rep. 111, 21 So. 237; Wilkes v. Dinsman, 7 How. 89, 12 449; Taylor v. Doremus, 16 N. J. L

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