The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1894-01-23
IN THE SUPREME COURT
An Opinion OF Importance involv-
ing the Question Of Resist
ing Trespass
RepeilinV Invasion, Except OF
ones Dwelling, Does Not
Justify Shooting.
Other Decisions OF Interest hnvolvinE
Money, Real Estate And other Nat
teus-Mouons Passed Ga.

vas interesting geneihllI - eAlf0@s'~N -"
Vows Of the court against she use OK
deadly weapon 90 prevent trssnasa on pFi-
vats property. The title OF the case VAS
Tn. state Of Montana va Charles DoJneh
1, mas an apreal from she district court or
ueer Lodge county In 0verrulinR melton
oransu trial after eonVieiion for assault
Doynss was enc Of the looators OF ths
Broadhead mining claim. Ca Jan. - loSl'
James Weller, With q number OF men and
seven slsighs loaded With wood, came along
the road which passed over she mining
CLAIM. This was not public highway and
Doynes and another man were vorkiag Ia a
shaft four feet deep. extending across the
road, making 10 impossible for teams. Al
,his poin. the stories OF what occurred
diverge. Doynes says the Weller party
began throwing rocks and olods In ths hole
some OF ,hsm striking him; that Weller
and another man got into the SHAFT and
began beating him; that he got out and ran
toward his coat where his pistol was that
he sot bis coat a. he ran and put 10 on. but
aha, he was seized and held. and while in
that condition reached for his pistol
and shot Weller. The scoount OF
abe Weller party Is shat when
,hsy began shoveling the dirt into the hole
20 an IL no Doynes tried 90 IRE the fuse at
tachsd 20 q stick OF dynamits; that Weller
knocked the light out OF his hand and that
Devnea then Jumped ont Of the shaft and
drew his revolver and nred as Weller Was
advancing toward him. Doynes was IN
dicted Tor an assault TO commit murder.
The Jury found him guilty Of simple as
sault. Doynes appealed from the ludg-
ment on the ground that the evidence was
Insufficient 20 sustain 10 and on errors OF
the court. The supreme court says there
Was ample evidence 20 warrant ths efdlot
and approves the Judgment OF the o'strlct
court ia 80 holding on the motion Tor =
new trinl In doing this the supreme cou
says even II the Weller party were guuiy o.
trespaas against property OF DOyues, not
dwoiling house. Il vas NOT a provocation
which Justified ths shooting with inteni 10
kin The lower court hal excluded teat-
monv TO show that al injunction 20 pre-
vent DOynos Telling trees on bis claim had
been refused. This was ous OF the < ounds
OF appeal The supreme court says. 'Even
II this were true and even IL DoYnes were
the undisputsd owner Of the premises be
was not justified IN repelling q tfespasssr
upon property, other than owtll-
ing, by an attempt 20 murds'.'
The prosecution introduced evidence at tho
trial 10 show that ths Weller teams couid
II
defense objected on the ground that u
was an ATTEMPT by she state 20 enforce a
trespass." The supreme court says; Is u
apparent that she nsrroUne5s OF the pass
age and the obstruction Of u BY the mole
dug by Doynes stopped the teams com -
along the road. These facts led 10 the en-
counter between the two parties. Doynes
claims that the Weller party we're commit
TING a willful and forolble trssspass, and
that hs therefore had ths right 10 Kill him.
We do not hold that It is com petent 10 ex-
cuse q trespaas By showing that its commits
sion was an Advantage so the perion COM
hitting H. bat IN contention and enoonn-
ter leading 20 the terfibls results Which oc-
cnrred in this case We believe 10 part OF TIE
res Rssta 20 show the close and immed+ata
surroundings Of the actors IN the tragedy
That was shown by the testimony cescrit 3
ING the condition Of the road and tho shaft
and the surrounding The defense
offered IN evidence the notice OF location OF
the claim on which the difficulty bccurred
lhe obisction OF the state shat 70 was not a
Justification OF the shooting was sustained
IL was only admitted az showing
Doynes' purpose In sinking the shaft.
The supreme court uphOlos botn
these rulinRs OF the lower court.
Another ground for appeal VAS that tue
lower court admitted testimony OF a pre-
vious difficulty between DoJnes smother
party named Durand over ithe same road.
The supreme court says this evidence was
admissible as tending 10 show Doynes' OBJ
isct in beiuR armed. as he declared to
Dursnd his purpose 10 kill any futnre trea-
pss,sr. Judgment affirmed. Opinion By
Justice Dewitt. ths other justices concur
ring.
LAVAL Lar, plaintiff and respondent
VJ. II. nixon, defendant and appellant,
and Albert kleinschmidt; appeal from Cal
latin. 10 was an aoticn on an appeal bend
executed bV kleinsohmidt and Nixon IN an
appsal 20 the supreme court IN a case IA
which Lay eot judgment against the GALA
tn Canal company, or whose account they
wsnt surety. The judgment was NOT paid
and Lay asksd that thu Burstiva on tue ap-
peal pond pay IL. Nixon claimsd thai II
signed the bond "a the request OF Klein
schmidt who was the principal and WHO
agreed 10 hold him harmless; but that Law,
though knowing this. Compounded WIFI
Kleinsebmidt ty taking half ths amount oil
the bond and releasing him. lie asked
that Kleinschmidt be sdiudged the pin
cipAl on the bond and required 20 pay th'
amount still due. The lower court gave
Judgment on she pleadings against NiX0r
Tor tie amount claimed. judgment az
nrmed. Olin.on BY Chief Justice Psmber
ton, others conGurrinR. Juatice DoMitti
concurrence WAS Ia separate opinion "a
which be upholis the right Of one suretl
20 make a separate compromise and take
release from his obligation on the bond
when u did not appear in the appeal bone
that one was a principal aud she othe
merely surety.
Albert Klsinschmidt. respondent. vs.. Bel
thassr Binzel. appellant; appeal from Lswi'
and Clarke county. lt WAS csntsst Owe
property known as tho "Old biewerT' oil
PAX avenue, Helena. aud has been 10 tn
courts here ia various ways for murs thar
ten years The onlY question invo.ved IL
TIE present appeal IL the eject that shoul,
10 given 90 Kleinschmidts plea OF foTme
aliudieation. lie clsimsd that ~ an oTds
OF c0u Z austa ming q demurrer 10 hnzel
complaiut IN O former action tie TiRgt o
tie property had been determined ugains
BiIZel, "a Ioiltlon sustained by tha lowe
court. d ne supreme cOurt quotes authori
ties O. sustain the position shat % she nfs
Hult Was dismissed on any ground that On
not 20 into TIE merits % the action th
Judgment will prove 20 har o. auothe sui
Ihs order sustaining the demu rer ~ BIZ
zs's complaint % 1888 nav have bee
based upon defects nos touching the mel
ne. Inc ruling Of tie trial court that 81
facts set up In that complaint had been i'd
luiiested d not sustained bF the EubFou
court. Judgment reversed. Opinion
Justice harWood, others concerning.
J.. H. Nelson vs. James Donovan; Ca
cade county. Motions 90 dismiss appa
from order granting new tusl aud Iai
ment Ga pleadIngs sustained.
J.. d. Walsh W. Mm. M1iler q a.
Msagher county; Gni J. BookEalter ".
r. Conrad % a.. Cascade. Motions
dismiss sp! eals denied
ausuu--l-r-ur,lalal'a'.'