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(— Wyo. —, 224 Pac. 420.)

cases. We think, however, that in view of all of the evidence in this case, it is properly exercised in the case at bar. Manslaughter, though it may be a distinct crime from that of murder, is, nevertheless, included in the latter. State v. Quan Sue, 191 Iowa, 144, 179 N. W. 972, 976; People v. Farrell, 146 Mich. 264, 274, 109 N. W. 440; Com. v. McPike, 3 Cush. 181, 50 Am. Dec. 727. The verdict of murder in the second degree necessarily implies the finding of all of the facts essential to the offense of voluntary manslaughter, and the defendant has had the benefit of a trial for that offense as fully as though the information herein had contained that murder to man- charge only. The verdict is, as we have seen, excessive, and should be treated as illegal as to such excess, but as to such excess only.

-reduction of

slaughter.

We do not desire to be arbitrary herein and direct absolutely what shall be done, but prefer, in this particular case, to make a conditional order. The state, accordingly, may elect, by writing filed in this court within thirty days, to take a new trial, in which event the judgment will be reversed, and the cause remanded for a new trial. Unless that is done, the judgment will be reversed as to murder in the second degree and affirmed for manslaughter, and the case remanded to the district court, with direction to cause the prisoner to be brought before it to be resentenced for that crime, taking into consideration the time already served by the defendant, and to make all other necessary orders not inconsistent herewith.

Potter, Ch. J., and Kimball, J.,

concur.

A petition for rehearing having been filed, Blume, J., on August 26, 1924, handed down the following additional opinion (Wyo. -, 228 Pac. 283):

A petition for rehearing was filed. herein by defendant on various grounds. The right for an oral argument having been asked, and the court desiring to be more fully advised, it was granted. After due

consideration, we are still of the opinion that as to whether or not the defendant was guilty of manslaughter was, under the facts of this case, a question for the jury. We do not think that such holding is in any way inconsistent with the holding of this court in Palmer v. State, 9 Wyo. 40, 87 Am. St. Rep. 910, 59 Pac. 793, nor do we think, as argued, that by our holding every man who, in the nighttime, shoots an invading burglar subjects himself to being found guilty of, at least, manslaughter.

Nor have we found any good reason to reverse our holding that this court has the right to modify the judgment of the trial court. In addition to the cases cited in the original opinion sustaining our holding we refer to State v. Ramirez, 34 Idaho, 623, 29 A.L.R. 297, 203 Pac. 279; State v. Freidrich, 4 Wash. 205, 29 Pac. 1055, 30 Pac. 328, 31 Pac. 332; State v. Lillie, 60 Wash. 200, 110 Pac. 801. See also Glover v. State, 7 Ga. App. 628, 67 S. E. 687; Harris v. State, 119 Ark. 85, 177 S. W. 421. We are cited to State v. O'Donnell, 176 Iowa, 337, 157 N. W. 870, where it was held that, inasmuch as the statute grants the authority to the jury to fix the punishment in first-degree murder either at death or at life imprisonment, the supreme court has no authority to modify the judgment from a sentence of death to one for life imprisonment. The contrary is held. by the supreme court of Oklahoma under a long line of decisions commencing with Fritz v. State, 8 Okla. Crim. Rep. 342, 128 Pac. 170. To the same effect is State v. Ramirez, supra. Further than that, the state of facts dealt with in the O'Donnell Case differs from the facts dealt with in this case. We need not pause to point out the differences. We are not persuaded that we should change our ruling because of that case.

The petition for rehearing is denied.

Potter, Ch. J., and Kimball, J.,

concur.

ANNOTATION.

Homicide or assault in defense of habitation or property.

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 to 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

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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 person may lawfully 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:

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"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 commis-
sary, he may eject them by the use of
no more force than is reasonably nec-
essary 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 com-
mitted 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, § 1 - action not favored.

2. An action for the malicious prosecution of a criminal cause is not a favorite of the law.

[See 18 R. C. L. 11; 3 R. C. L. Supp. 774.]

District and prosecuting attorneys, § 3 discretion.

3. A district attorney, in determining whether or not to institute a prosecution, is a quasi judicial officer, who possesses a certain discretion as to when, how, and against .whom to proceed.

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[See 22 R. C. L. 96.] Evidence, § 94 statutes presumption as to knowledge of other law. 4. The provision of a prohibition law defining the duties of the prosecuting attorney will be presumed to have been enacted with full knowledge of the existence of a prior statute investing such officer with discretion.

[See 25 R. C. L. 1063; 3 R. C. L. Supp. 1440; 4 R. C. L. Supp. 1619.] 34 A.L.R.-94.

Statutes, § 233
in pari materia.

construction

5. In the construction of a particular statute, all acts relating to the same subject will be read in connection with it, as together constituting one law.

[See 25 R. C. L. 1060; 3 R. C. L Supp. 1439; 4 R. C. L. Supp. 1619.] Malicious prosecution, § 18 - probable cause.

6. Every prosecution for crime should be based on probable cause. Malicious prosecution, § 18 probable cause defined.

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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.

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This is an action for damages for an alleged malicious prosecution of Homer I. Watts by George Gerking, Alf Oftedahl, R. I. Keator, Mrs. Charles Betts, and N. H. Desper, arising from an averred violation of the prohibition liquor law by Watts, the plaintiff herein. The complaint alleges the institution of a judicial proceeding against Watts, the want of probable cause for such original proceedings, malice, the termination of the original proceedings in favor of this plaintiff, and that plaintiff has sustained damages in the sum of $50,000. The defendant R. I. Keator answered by filing a separate demurrer, in which, among other things, he averred the failure of the complaint to state facts sufficient to constitute a cause of action. It was stipulated, and the issue of law made by the demurrer was tried upon the theory, that defendant Keator, at all the times mentioned in the complaint, was the prosecuting attorney for the district of Umatilla county, Oregon, and that this is an action for malicious prosecution. From a judgment sustaining the prosecuting attorney's demurrer and dismissing the action as to him, plaintiff appeals to this court, assigning error of the court, on the face of the record, in sustaining defendant Keator's separate demurrer, and entering judgment.

Messrs. Homer I. Watts and E. C. Prestbye, for appellant:

On demurrer to the complaint the material allegations of the pleadings are deemed admitted.

Fields v. Crowley, 71 Or. 141, 142 Pac. 360; Hoffman v. Toft, 70 Or. 488, 52 L.R.A. (N.S.) 944, 142 Pac. 365; Oregon Home Builders v. Bisman, 88 Or. 611, 172 Pac. 114.

Every person within this state is subject to its Constitution and laws, and the fact that an individual occupies an official position in the state will not protect him from the consequences of his violation of its laws, or the infringement of the rights of others.

Wiegand v. West, 73 Or. 249, 144 Pac. 481; Taylor Sands Fishing Co. v. State Land Bd. 56 Or. 157, 108 Pac. 126; Salem Flouring Mills Co. v. Lord, 42 Or. 82, 69 Pac. 1033, 70 Pac. 832; Corvallis & E. R. Co. v. Benson, 61 Or. 359, 121 Pac. 418; Franks v. Smith, 142 Ky. 232, L.R.A.1915A, 1141, 134 S. W. 484, Ann. Cas. 1912D, 319; Murdock Parlor Grate Co. v. Com. 152 Mass. 28, 8 L.R.A. 399, 24 N. E. 854.

An officer of the law whose acts are ministerial is personally liable to one injured by his acts while in the performance of his duty, if he be guilty of misfeasance, malfeasance, or nonfeasance in the performance.

22 R. C. L. 488, §§ 159, 161, 162: Walsh v. Brown, 194 Mass. 317, 120 Am. St. Rep. 556, 80 N. E. 465; Apfel-' bacher v. State, 160 Wis. 565, 152 N. W. 144; Tracy v. Swartout, 10 Pet. 80, 9 L. ed. 354; Grace v. Mitchell, 31 Wis. 533, 11 Am. Rep. 613; 29 Cyc. 14401442.

A judicial officer exercising only a special and limited authority, acting in a matter over which he has no jurisdiction, or who, having jurisdiction over the matter, wilfully, maliciously, or corruptly exceeds his jurisdiction,

(Or., 228 Pac. 135.)

is liable in damages to one injured by his acts.

Piper v. Person, 2 Gray, 120, 61 Am. Dec. 438; Clarke v. May, 2 Gray, 410, 61 Am. Dec. 470; Bigelow v. Stearns, 19 Johns. 39, 10 Am. Dec. 189; Taylor v. Doremus, 16 N. J. L. 473; Reed v. Taylor, 25 Ky. L. Rep. 1793, 78 S. W. 892; Mitchell v. Galen, 1 Alaska, 339; Chambers v. Oehler, 107 Iowa, 155, 77 N. W. 853; Cagney v. Wattles, 121 Mich. 469, 80 N. W. 245; Robertson v. Parker, 99 Wis. 652, 67 Am. St. Rep. 889, 75 N. W. 425; Bowman v. Seaman, 152 App. Div. 690, 137 N. Y. Supp. 568; Grossman v. Davis, 117 Ill. App. 354; Reddish v. Shaw, 111 Ill. App. 337; McCarg v. Burr, 186 N. Y. 467, 79 N. E. 715; Starrett v. Connolly, 150 App. Div. 859, 135 N. Y. Supp. 325; Carpenter v. Sibley, 153 Cal. 215, 15 L.R.A. (N.S.) 1143, 126 Am. St. Rep. 77, 94 Pac. 879; Kelly v. Bemis, 4 Gray, 83, 64 Am. Dec. 50; Stephens v. Wilson, 115 Ky. 27, 72 S. W. 336.

An officer of the law, by the nature of his office, may have both ministerial and judicial duties to perform, and when performing ministerial matters his personal liability to one injured thereby is determined by the rules. governing ministerial officers. When performing a judicial act his liability to one injured thereby is determined by the law governing judicial officers exercising only special and limited authority.

Wilkes v. Dinsman, 7 How. 89, 12 L. ed. 618; Tompkins v. Sands, 8 Wend. 462, 24 Am. Dec. 46; People v. May, 251 Ill. 54, 95 N. E. 999, Ann. Cas. 1912C, 510; Horne v. Pudil, 88 Iowa, 533, 55 N. W. 485; Taylor v. Doremus, 16 N. J. L. 473.

When an officer is invested with discretion as a prosecuting or district attorney, and is empowered to exercise his judgment in matters brought before him, he is termed a semi or quasi judicial officer, having only special and limited judicial authority, and when acting therein he is given immunity from liability to persons who may be injured as a result of an erroneous decision, only when the acts complained of are done within the scope of the officer's authority, and without wilfulness, malice, or corruption.

22 R. C. L. 480; Garff v. Smith, 31 Utah, 102, 120 Am. St. Rep. 924, 86 Pac. 772; Chamberlain v. Clayton, 56 Iowa, 331, 41 Am. Rep. 101, 9 N. W. 237; Wilkes v. Dinsman, 7 How. 89, 12

1491

L. ed. 618; Monnier v. Godbold, 116 La. 165, 5 L.R.A. (N.S.) 463, 40 So. 604, 7 Ann. Cas. 768; Carpenter v. Sibley, 153 Cal. 215, 15 L.R.A. (N.S.) 1143, 126 Am. St. Rep. 77, 94 Pac. 879, 15 Ann. Cas. 484.

A judge of a superior court or court of general jurisdiction is liable in damages in a civil action by one injured by his acts, if he has no jurisdiction over the person whom or subject-matter which he is attempting to act upon.

Grove v. Van Duyn, 44 N. J. L. 654, 43 Am. Rep. 412; 15 R. C. L. 543, § 31; Bradley v. Fisher, 13 Wall. 335, 20 L. ed. 646; Stewart v. Cooley, 23 Minn. 347, 23 Am. Rep. 690; Taylor v. Doremus, 16 N. J. L. 473; Broom v. Douglass, 175 Ala. 268, 44 L.R.A. (N.S.) 164, 57 So. 860, Ann. Cas. 1914C, 1155.

An action will lie to recover damages caused by an executed conspiracy in the institution of a malicious prosecution, where it appears that the prosecution was malicious and without probable cause.

12 C. J. 588, § 109.

Messrs. C. Z. Randall and Fee & Fee, for respondent:

Where plaintiff estops himself by admissions of record from relying upon the allegations of conspiracy as a separate tort, these expressions should be considered only as they relate to an action in malicious prosecution.

Stewart v. Cooley, 23 Minn. 347, 23 Am. Rep. 690; Heywood Bros. & W. Co. v. Doernbecher Mfg. Co. 48 Or. 359, 86 Pac. 357, 87 Pac. 530.

If there is not a clear absence of all jurisdiction, judges of superior courts and general jurisdiction are not liable to civil action for their acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously and corruptly. The test here is whether the act is done as judge.

15 R. C. L. 455, 456, Judges, § 32; Bradley v. Fisher, 13 Wall. 335, 20 L. ed. 646; Lange v. Benedict, 73 N. Y. 12, 29 Am. Rep. 80; Busteed v. Parsons, 54 Ala. 393, 25 Am. Rep. 688.

The same rule applies to a justice of peace, or officer of other inferior court, and when he acts within his jurisdiction he is not liable, though he acts maliciously and corruptly, but if he exceeds the limits of his jurisdiction he may be.

Coleman v. Roberts, 113 Ala. 323, 36 L.R.A. 84, 59 Am. St. Rep. 111, 21 So. 449; Taylor v. Doremus, 16 N. J. L

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