#### STATE, Respondent, *v.*WHITWORTH, Appellant.

(No. 1,636.)

(Submitted October 3, 1901.

Decided November 25, 1901.)

*Criminal Law*— Homicide—Prosecution—Assistant *Counsel— County Attorney*— Evidence—Threats—Requested *Instructions.*

1. Political Code, gees. 4318, 4319, providing that county officers, except epunty commissioners and justices of the peace, may appoint necessary deputies fop the prorppt discharge of the duties of the offices, have no appji-*108cation to the appointment by the court of counsel to assist a county attorney in prosecuting persons charged with crime.

■2. Where a criminal cause is removed to another county, the attorney of the county to which the cause is removed must prosecute it.

•3. The statutes declaring who shall be charged with the duty of prosecuting persons charged with crime does not exclude power in the court to appoint counsel from members of the bar to assist in the prosecution.

4. In trial for murder it appeared that deceased had threatened to kill “any Missourian m the employ of V. who undertook to move hay on High Tower ranch,” and had made other threats against Missourians so employed, and that defendant was a Missourian, and employed on said ranch; but the evidence also showed that at the time defendant struck the fatal blow he was not in immediate danger, but that he went up to deceased, who was standing in a threatening attitude over a friend of defendant, who was "not shown to be a Missourian, and who was on top of, and was fighting with, a friend of the deceased. *Held,*that- it was not error to refuse to instruct that the jury should take such threats into consideration in determining the nature of the attack made on defendant’s friend, and what was the purpose of deceased and his friend in making such attack.

5. A court should not be captious or hypercritical and refuse an important requested instruction solely on the ground of verbal inaccuracy; still it is not the duty of the court to undertake, in all cases, the labor necessary to prepare and rewrite defective requested instructions which if correctly states might well be given in the charge.

Mr. Justice Pigott dissenting in part.

*Appeal from District Court, Broadwater County; F. K. Armr strong, Judge.*

William Whitwoetil was convicted of manslaughter, and appeals.

Affirmed.

*Mr. William Wallace, Jr.,*for Appellant.

I.

What county attorney prosecutes in Broadwater county? Section 1978, Penal Code, on removal, says the case must proceed to trial and judgment as if begun there. Laws of 1899 (amending Section 4450 Political Code) say each county attorney must attend the district court, conduct all proceedings at *all times*and *at all places within his county.*The italicised language represents one of the features accomplished by the amendment as shown by an examination of the original section. Under Section 1981, if removed as to part of defendants, different county attorneys would try. Where as here the duties *109of the officer are limited to his county or district, so are his rights; and where a case is transferred out of his county hé does not follow it. (17. *8.*v. *Winston,*170 TJ. S. 522, 42 CoOp. Ed. 1131.) That a different practice has prevailed unchallenged can cut no figure, when the question is raised and the law plain. *(Modoc Co.*v. *Spencer,*103 Cal. 498, 37 Pac. 483, 484.)

II.

May the court permit a private attorney to represent the state in prosecuting a criminal charge? The following authorities hold that this may not be done: *Bunnell*v. *Stale,*71 Wis. 444; *Modoc Co',*v. *Spencer,*103 Cal. 498, 37 Pac. 484; *People*v. *Hurst,*41 Mich. 328, 1 N. W. 1027; *People*v. *Hendryx,*58 Mich. 319*-,Meisler*v. *People,*31 Mich. 99; *Commonwealth*v. *Knapp,*10 Pickering 477, 482; *Commonwealth*v. *Williams,*2 Cushing 582, 584; *Commonwealth*v. *Gibbs et al.,*4 Gray 146; *Commonwealth*v. *King,*8 Gray 501. Special statutes in some states authorize employment of private special counsel —in Iowa, by board of county commissioners *(Hopkins*v. *Clayton Co.,*32 Iowa 15) ; in Kentucky; by the attorney general *(Hendrick*v. *Posey et al.,*45 S. W. 525) ; in Nebraska, by the district attorney *(Sands*v. *Frost Co.,’*42 Neb. 837). The same in Pennsylvania *(Com.*v. *Shire,*178 Pa. St. 409)."

. By Subdivision 7 of Section 460 of the Political Code, the attorney general is required to assist the county attorney when required by the public service or when directed by the governor. And Sections 4318 and 4319, Political Code, provide for the appointment by the county attorney, himself, in writing, of an assistant, subject to allowance by the board of county commissioners. It would seem clear that our statutes are framed on the theory that public officers alone shall prosecute for crime and that the county attorney of the trial county shall act in person, or by authorized assistant, duly appointed; and that emergencies are provided for by authorizing the incoming *110of tbe attorney general as needed. It is not intended to deny the inherent power of a court, finding itself without a prosecuting officer, to supply one temporarily, but no such question as that is here presented, because the county attorney was in court, had been conducting other business, — only said he was not feeling well, in his own affidavit, and actually remained and prosecuted the case.

As to the instructions, the following principles are laid down; (a) “It is the *right*of the parties to have the jury instructed on the law applicable to the ease *clearly and pointedly,*so as to leave *no reasonable ground for misapprehension or mis-talce.*And it is the *duty*of the judge when requested to give in the charge *any requested instruction*which is *correct,*as a proposition of law, and applicable to the issues.” *(People*v. *Jacks,*42 N. W. 1135; *Parker et al.*v. *State,*35 N. E. 1105, 1108; *People*v. *Taylor,*36 Cal. 256, 266; 11 Ene. PI. & Pr. p. 213, 214 and cases.) As especially applicable to this kind of case see also: *People*v. *Payne,*8 Cal. 343, 344; *Townsend*v. *Briggs,*34 Pac. 111. The court must correct inaccuracies in offered instructions and charge on the propositions embodied. *(Connors*v. State> 2 N. W. 1143.) (b) The charge as given must cover *every*phase of the evidence. (11 Enc. PI. & Pr. 191, 193, and cases; *Perry*v. *State,*44 Tex. 473, referred to; *Martin*v. *The State,*47 Ala. 564.) (c) Offered instructions 3, 4 and 7 deal with phases of question of occupancy and immateriality of title not covered by the charge. Each correctly states the law. On immateriality of title: *Sims*v. *State,*44 S. W. 522 ; *People*v. *Payne,*8 Cal. 341. On occupancy and forcible tearing down: *People*v. *Payne,*8 Cal. 341, 343, 344; *The People*v. *Homshell,*10 Cal'. 83, 88; *Sim-s*v. *State,*44 S. W. 526. Particularly as- to offered instruction No. 4: *Butte & B. Gem.. Mng. Go.*v. *M. O. P. Go.,*60 Pac. (Mont.) 1043. (d) Offered instructions Nos. 10 and 17 deal with above and also' declare whose *duty*it was to retreat and whose *right*it was to *stand their ground,*under supposed facts within the evidence in the case, a matter not directly charged on elsewhere, and *111wbicb was so vital to defendant that there should have been no chance left for any misapprehension by the jury. They correctly state the law in this regard. *(Wallace*v. *U.*8., 162 IT. S. 474; *Townsend*v. Briggs, 34 Pac. 111.) They must form a part of the charge. *(State*v. Bolla, 55 Pac. 524; *Oonnors*v. *State,*2 N. W. 1143!) The statute itself has recognized the importance of advising the jury whose duty ¡t is to retreat and whose right it is to stand, in other words, who may lawfully make resistance, and who nlust yield and give way because in wrong. (Sections 1411 and 1412 of the Penal Code.)

The defendant was entitled to be where he was. The deceased and his companion were engaged in a willful and forcible trespass upon the property of appellant’s employer which had been put expressly in his charge, and it was vitally important to him to enable the jury to clearly judge his case that there should be no uncertainty in their minds as to who had the right to stand their ground and resist and whose duty it was to yield, fall back and give way, and the court did not in this case make this matter clear and certain to the jury, as the offered instructions 10 and 17 would have done.

(e) Offered instruction No. 23 deals with the ]aw as to deceased’s threats, which was wholly omitted from the charge of the court.

*Mr. James DonovanAttorney*General, for the State.

ME. JUSTICE MILBÜEN

delivered the opinion of the court.

This case is before the court upon appeal from the judgment and the order denying a motion for a new trial.

The defendant was charged with the crime of murder in the first degree, alleged to have been committed in Meagher county. A change of venue was had to Broadwater county. The accused was convicted of the crime of manslaughter. The county attorney of Broadwater county prosecuted the action, and over the *112objection of tlio appellant the county attorney of Meagher county and Max Waterman, Esq., attorney at law, assisted in. the prosecution as of counsel for the state.

The evidence in the case is as follows: The deceased, William Cameron, was mortally wounded by the defendant on January 17, 1900, on the ranch of one Van Camp, in Meagher ■ county. Van Camp had occupied the premises peaceably and: without dispute for over five years prior to August, 1900. The-place was entirely inclosed by a fence built by Van Camp, who. had also built, used and occupied thereon during the same* period a cabin, a sheep corral, a sheep shed, a hay corral and' a stable; cutting the hay each year and feeding it to his sheep. and horses, and occupying the shed and corral with his sheep > at the usual seasons of the year. In August, 1899, while Van; Camp, was cutting hay, the deceased entered the fenced Enclosure, and about seventy yards from the sheep corral pitched a-tent, and proceeded, with the aid of one Johnson, to build a. cabin. On October 5 the deceased and his father took down, some poles from the Van Camp sheep corral and piled them in-front of the sheep-shed door. When Van Camp’s sheep came, up, a “word row” occurred between deceased and defendant,, in the course of which the defendant, using an opprobrious epithet, said, “If you persist, you will be put in a wooden box.”"’ At his dinner table, about November 20, defendant stated,. “Deceased better be careful, or he might be carried off in a box.” On January 15, 1900, at one Blethen’s blacksmith shop, her said, “Cameron was liable to be o-ut of there in, a box.”’ On the evening of January 16, defendant and one James Ham - vey, both employes then and there of Van Camp, were engaged' in-feeding the horses and milking the cows at the stables and corrals of Van Camp; the sheep feeding outside. At this’time, deceased and Johnson, having a few minutes previously fired' a rifle shot' from their cabin, started across to the Van Camp,, sheep corral, carrying an ax and a hatchet, for the purposej as; the deceased said, “of tearing it down.” As soon as they ar- - rived at the corral they began to chop posts and remove poles.. *113Defendant and Hanvey (tbe latter putting down an oat sack which, he was carrying to feed the horses) urged Cameron and Johnson several times not to tear down the fence, deceased saying that he would tear it down; and he and Johnson continued their work of destruction. Hanvey picked up a corral stake about three feet long and two inches thick, and leaned on it. He and Johnson said each to the other that he could “lick him.” Johnson “gave Hanvey the lie;’’ defendant saying, “Go- for him, Hanvey.’’ The too started for each other, Hanvey striking Johnson on the elbow with the club; and then, he dropping it, they clinched; Johnson backing a few steps and falling on his back, with Hanvey on top; the latter’s face beginning to bleed as they fell. Cameron ran up to where they fell, and stood near their heads, in a “striking position.” At this time the defendant, having picked up the club, went toward the other three, and, facing Cameron, struck him with the club on the side of the head, and, turning, also struck Johnson on the head with the club, as he lay upon the ground. One Hanvey testified that he was near the center of the corral, about fifty feet away from the defendant and the deceased, and was going toward them, and that he told the defendant not to strike the deceased or Johnson, who was then on the ground, under Hanvey. The defendant then started rapidly away across the corral;; Hanvey getting up. and following him, with his face and head bleeding freely. The defendant told Harvey that he struck the-hoys because he “could not bear to see them cutting Jim up- so.” Harvey saw a ridge about the size of a finger across the center-of the first joints of Hanvey’s fingers, which Hanvey said was. caused by a knife of some kind. Cameron died the nest day-from fracture of the skull. At the time the lie passed between Hanvey and Johnson, the defendant picked up the ax and hatchet that deceased and Johnson had brought, and threw them out of the way, on top- of the roof of the sheep shed.

In defense it was testified that all the defendant had said in the October 5 altercation was that he “could lick deceased on less ground than it would take to bury him on, or that he stood *114on,” and that during November, after tbe 7th. until the 29th, defendant was not at the Van Camp home ranch; where testimony tended to show that he on November 20 made a threat against deceased. The defendant also denied all other threats. It also appears in evidence that deceased in August, 1897, had threatened to hill any “damn Missourian in the employ of Van Camp who undertook to move a load of hay on the “High Tower Hanch.” The Van Camp ranch was known as the “High Tower Hanch.” The defendant was from Missouri. He weighed about 115 pounds, and was about 5 feet and 5' inches high. Deceased was about 5 feet and 10 inches in height, and weighed about 140 or 150 pounds. Johnson was 5 feet and 9 inches high, and Hanvey 5 feet and 6 inches in height. This alleged threat was communicated to the defendant long before the day of the homicide. Johnson had ill will against Van Camp, and a few days before the day of the killing said that “if Van Camp did not quit keeping Missourians around him, he would lick the whole bunch of them, and take the first chance he got to do it.” It was assumed that the rifle shot was fired by deceased in the direction of the defendant and Hanvey when near the High Tower cabin, because they heard the bullet whistle; Johnson testifying that deceased was shooting at some magpies that were around the house. It also appears in evidence that the defendant at the beginning of the quarrel picked up the hatchet, only throwing it on the shed, and that he and Hanvey repeatedly asked deceased and Johnson to quit tearing down the corral ; saying that they wanted to put the sheep in it that night. Defendant and Hanvey testified that deceased and Johnson wore mittens, and gloves underneath, and had knife blades or some sharpi instrument fastened to the back of their hands, underneath the mittens. The testimony for the defense was also to the effect that, as Johnson, and Hanvey fell; Cameron, who was 34 feet away, grabbed the ax and started toward them. Defendant jumped up and wrenched the ax from his hand as he was raising it, and threw it on the shed. Deceased then grabbed the club or stake, and defendant quickly jerked that *115from Ms band, saying it must be a fair fight. Deceased tben went to tbe beads of tbe men on tbe ground, and was “in tbe attitude of striking” at Hanvey from tbe side; Johnson striking from below. Defendant, Hanvey and Harvey testified that Hanvey was bleeding freely at tbe time defendant went over to tbe spot where deceased was, and struck Johnson and deceased each a blow with tbe club. It was also shown in tbe testimony for tbe defense that there were four cuts about tbe bead of Hanvey, evidently made by soma sharp instrument, still bleeding after a trip of 20 miles to another Yan Camp ranch, — tbe bandages around tbe bead being saturated with blood, — and that tbe wounds on tbe bead bled a great deal during tbe night. Dr. Kumpe, a practicing physician, testified that be examined the bead of Hanvey eight days after tbe killing, and could only find two small wounds, mere scratches, neither of which cut through tbe skin, and that, in bis opinion, they were not made with a knife; that they looked more like pin scratches.

The first and second specifications are: (1) “Tbe court erred in permitting tbe county attorney of Meagher county to prosecute tbe action, against tbe objection of appellant;” and (2) “tbe court erred in permitting Attorney Waterman to prosecute on behalf of tbe state in said action, against tbe objection of tbe appellant.” It appears from tbe record that tbe county attorney of Broadwater county appeared in open court and asked that tbe county attorney of Meagher county and Max Waterman, Esq., be appointed to assist him in tbe trial of tbe cause, at tbe same time filing bis affidavit setting forth that be (tbe county attorney of Broadwater county) was tben and there physically unable to assume tbe entire burden of tbe prosecution; and tbe court, finding that tbe attorney general was absent from tbe county of Broadwater, and that tbe cause was tben ready for trial, granted tbe motion of tbe said county attorney of Broadwater county, and said county attorney of Meagher county and tbe said Max Waterman, Esq., were tben appointed by the court' to assist in the prosecution of tbe cause, *116and the objection of the defendant to tbe appearance of said parties as assistants to tbe county attorney of Broadwater county was then and there overruled. At tbe time of tbe making of tbe defendant’s objection, bis counsel made and filed tbe affidavit of said counsel to tbe effect tbat tbe county attorney of Broadwater county was not sufficiently ill to prevent bim from giving’ tbe necessary attention to- tbe ease. It appears also tbat tbe said Waterman bad been, before tbe defendant’s preliminary examination in Meagher county, employed by the chairman of tbe board of county commissioners of Meagher county as special counsel to assist in prosecuting tbe charge, and bad appeared for tbe state at said examination. It does not appear tbat any one of tbe three attorneys appearing for tbe state bad received or been promised any compensation by any one whomsoever, except possibly such compensation as may be inferred as promised because of the employment of Mr. Waterman by tbe chairman of tbe board of county commissioners of Meagher county.

Defendant’s counsel, in. bis argument, inquires: Eim, “What coiinty attorney prosecutes in Broadwater county ?” and, second, “May tbe court permit a private attorney to represent tbe state in prosecuting a criminal charge?”

In tbe light of tbe provisions of tbe Penal Code pertinent to tbe matter, it is apparent what answer must be given to the first question; tbat is to say, tbe county attorney of tbe county to which tbe cause is removed must prosecute, in tbe same manner as if tbe action bad been begun in tbat county.

Counsel cites a large number of authorities tending to show tbat the court may not, over tbe objection of tbe defendant in a criminal action, permit a “private attorney” to represent tbe state in tbe prosecution. Examination of these authorities not only shows tbat they are not relevant to tbe question raised in tbe record at tbe time of tbe objection of tbe defendant to tbe appearance of tbe assistant attorneys, but at least one of them, *Commonwealth*v. *Knapp,*10 Pick. 477, 20 Am. Dec. 534, even fails to support tbe proposition advocated by counsel for de*117fendant, — that the statute which declares who shall prosecute excludes the appointment of other attorneys by the court over the objection of the defendant; the case referred to being one wherein Mr. Webster was allowed to appear as counsel for the prosecution, over the objection of the defendant, upon the request of the prosecution. It is not necessary to pass in this opinion upon the question asked by the counsel, for it does not appear that the county attorney of Meagher county or Mr. Waterman,'in any wise, in this case, was a “private' attorney.” A private attorney, as in the view of the courts whose opinions are cited by counsel, is an attorney employed by, and in the interest of, private persons, and. not paid out of public funds. He is one who1 has a special interest in the securing of a conviction, being employed by private persons to prosecute. He is not one who-, like a public prosecutor, is presumed to- do his duty in an earnest and faithful manner, impartially, and with the sole purpose of presenting the whole truth to the court and jury, both as to law and facts. We do not find anything in the record to show that either of the two assistant counsel appointed by the court was employed in. the interest of any private person.

It is contended by counsel in the argument that the county may have assistance only as provided in Sections 4318 and 4319 of the Political Code, except that the attorney general may appear, and that the court, when it finds itself “without a prosecuting officer,” may “supply one temporarily.” The two1 sections of the Political Code do not apply, as they are intended to provide for as many deputies in the office of any county officer, except a county commissioner and a justice of the peace, “as may be necessary for the faithful and prompt discharge of the duties of his office.” It is obvious that these provisions do not pertain to the appointment by the count of such assistant counsel as it may think necessary in the prosecution of any particular criminal case, when, in the opinion of the court, owing to the physical weakness of the county attorney, assistance is needed.

We think the great weight of authority is in support of our *118opinion that the court may legally, in its discretion, appoint counsel from tbe members of its bar to assist the prosecution, over the objection of the defendant, and that no error was made by the court in the present case in the matter.

In support of our position that the statute declaring who shall be ^charged with the duty of prosecuting persons charged with crime does not exclude the power of the court to appoint assistant counsel, we refer to the numerous citations in *Tull*v. *State ex rel.*Glessner, 99 Ind. 238, wherein the court says that: “The people do not surrender the right to employ just means of prosecuting criminals by choosing’ an officer and charging him with the special duty of prosecuting the pleas of the state. * * * The community does not avow that it will not employ counsel to assist him when the occasion demands.” Numerous other authorities might be cited.

Defendant also complains that the court erred to his prejudice in refusing to give to the jury six certain instructions prayed for by him. Three of them, numbered 3, 4 and I, deal with phases of a question of occupancy of the land upon which the hilling occurred, and the immateriality of the title to the lands in the case; counsel claiming that the points were not covered by the charge. There was no testimony as to who held or pretended to hold title to the premises. The charge, as given, sufficiently covers the rights and privileges of the defendant- in relation to the place where the homicide was committed.

As to requested instructions 10 and 17, defendant assigns error in their refusal, and says that they “declare whose *duty*it was to retreat, and whose *right*it was to stand their ground, under supposed facts within the evidence in the case, — a matter not directly charged on elsewhere, and which was bo vital to defendant that there should have been no chance left for any misapprehension by the jury;’’ also that they touch upon the points raised in instructions numbered 3, 4 and 7. The charge states the right of the employes of the owner of the property (they being the defendant and one other) to defend the prop*119erty witb necessary force. .The reasonable and palpable deduction from the language of the charge is that the defendant and his co-employe, Hanvey, had the right to stand their ground on their employer’s premises, and defend the property and themselves. The apparent conclusion to be drawn by any reasonable man from the charge is, besides, that the deceased had no right or business on the premises if the jury believed “the supposed facts within the evidence;” that is, the allegations of the defense that deceased and his comrade were trespassing upon the premises and engaged in destroying the property of the defendant’s employer, in charge of which defendant was. Those paits of these two refused instructions which correctly state the law, and should be given in such a case as the one at bar, in our opinion, are sufficiently covered in the charge.

The defendant’s refused instruction No. 23 is as follows: “As to threats by deceased, it is in evidence that a threat generally directed toward Missourians was made in connection with the High Tower ranch. If you find that the defendant belonged to the class mentioned, you should take into consideration such threat, if you find it proven, in determining what the nature of the attack, if any, made by the deceased upon Hanvey, was, and what the purpose of Johnson and deceased was in making such attack.” The evidence shows that, at the time the defendant struck Cameron the fatal blow, he (defendant) was not in any immediate danger, but that, as indisputably appears in evidence, he went up to deceased and Johnson; Hanvey then being on top of Johnson, who was lying upon the ground; the deceased"standing at the heads of the two, in an attitude threatening to Hanvey. It appears in evidence that the defendant was a Missourian. There is nothing tending to show that Hanvey was from Missouri. The alleged threat of deceased toward Missourians would not tend to indicate “the nature of the attack, if any, made by the deceased upon Han-vey,” or “what the purpose of Johnson and deceased was in making such attack” upon Hanvey.

We note that counsel contends that “the court must correct *120inaccuracies in offered instructions, and charge on the propositions embodied,” and in support of this cites *Conners*v. *State,*47 Wis. 523, 2 N. W. 1143. Examination of this case shows that it cites as authority *State*v. Wilner, 40 Wis. 304, wherein the court held that it could not sustain a judgment of conviction of a high crime; an important instruction having been refused solely on the ground of verbal inaccuracy. In that case the defendant asked for an instruction to the effect that “* ** **insanity, once proved to exist, is presumed to exist until the presumption is overcome. * * *” The court thought the word “insanity” was too broad, and should have been qualified by the lower court, and the instruction given as thus modified. In other words, it was rightly held that a court should not be captious or hypercritical, and in this we agree; but it is not the duty of tire court to undertake the labor and research necessary to prepare and write instructions, in all cases, where the counsel has in a proposed instruction, embodying, perhaps, argument, ambiguous language, misstatements of fact, or palpably incorrect statement of law, merely suggested certain principles which, if correctly stated, might well be given in the charge. We do not mean to say that the refused instructions in this case should be characterized as the above language might imply, but we merely wish to be understood as saying that the refused instructions could well be refused for sufficient reasons other than that they were verbally inaccurate.

The instructions given were favorable to the defendant, and were clear enough to be understood, we think, by a juror or average intelligence, and, further, we think they covered sufficiently such appropriate points as were raised in the refused instructions.

The judgment and the order denying the motion for a new trial are affirmed.

*Affirmed.*

Me. Chief Justice BeaNtly:

I concur.

*121Mr. Justice Pigott:

I concur witb tbe majority of tbe court in bolding that there was no error in permitting counsel to assist tbe county attorney; but I am not satisfied that tbe matters contained in prayers for instructions 10 and 17, touching tbe right of tbe defendant and Hanvey, under supposed facts which the evidence tended to establish, to stand their ground, were sufficiently covered by tbe charge, nor is it clear to me that refused instruction 23 was irrelevant. I am inclined, therefore, to think that there should be a reversal. This conclusion has been reached after much doubt and hesitancy, for I appreciate the force of the opinion upon these questions.