People v. Stone

I cannot concur in the view that the verdict of the jury in this case is wholly unwarranted by the evidence.

It is not clear that the defendant, at the time of the homicide, was in the peaceable and exclusive possession of the disputed premises. Deceased, or those he represented, had at least a scrambling possession; not? such a possession, certainly, as would have justified him in resorting to extreme measures in the attempt to defend it, but certainly a show of possession backed by a claim of right. He was standing on the land, at a gap in the fence, where he had gone armed with a deadly weapon, determined to prevent the defendant from entering. The defendant, equally armed and equally determined, *41 accompanied by bis son, approached with the manifest purpose of going on the land to harvest the crop. The parties were bitter and open enemies. Each had insulted and threatened the life of the other, and each at the time plainly declared to the other what his present purpose was,—the one to enter, the other to resist his entry. Each also plainly notified the other that he would act at his peril.

Immediately ensuing these mutual threats, pistols were drawn on both sides, and the…

The appellant was charged with the crime0 of murder, convicted of murder in the second degree, and sentenced to the state prison for ten years.

The main contention on this appeal is that the evidence was insufficient to warrant a conviction for any offense. We have examined the evidence carefully, and find the facts as shown by the undisputed evidence for both the people and the defendant to be that the defendant was in the possession, and had been for a number of years, of a certain tract of land, and claimed to own it; that the wife of the deceased also claimed a part of it as government land on which her grantor had filed and received a certificate of purchase, it being a part of a larger tract, the balance of which was in the pre-emptor's possession under his claim; that shortly before the killing of the deceased the party under ivhom she claimed had run a wire fence across the land without the knowledge of the defendant, thereby cutting off the part of the land claimed by the deceased from the balance of the land in possession of the defendant; that this piece of land so cut off had been sown to grain by the defendant, which was about ready to harvest; that the defendant and…

I concur in the judgment. The evidence clearly shows that the fifteen or sixteen acres which the wife of deceased claimed as being a part of her pre-emption was within the inclosure of defendant; that defendant had been in the actual possession of it, in a common field with other lands held by him, for eighteen years; that he had sown it and the whole field with grain, which was nearly ready to harvest, when some one ran a fence, consisting of two wires, stretched upon pickets, set fifteen or eighteen feet apart—a mere sham of a fence—'through his field, cutting off from the rest the sixteen acres claimed by the wife of deceased. It further shows that when defendant had finished heading the balance of his grain he undertook to go through this wire fence with his headers to harvest that sixteen acres. He was as fully in possession as he had ever been, and had a right to harvest that crop. When he had reached the fence, and his header was about to pass *40 through, the deceased came up on a gallop and undertook to prevent it. In the combat that ensued (which in one sense may be called a mutual combat), the evidence is clear and positive that the deceased was the assailant. He had…