Harris

Defendants have been convicted of manslaughter, and appeal from the judgment and order denying their motion for a new trial. It is insisted that the evidence shows a case of justifiable homicide. The facts, briefly stated, are as follows:

The deceased, by a wire fence, closed a road extending across his premises. Two of his neighbors, these defendants, claimed the right to travel upon this road. Ill-feeling arose, and deceased informed them that if they attempted to pass over the road he would kill them. Some days thereafter the defendants in a wagon, armed with shotgun and rifle, a third man driving the horses, started to travel over the forbidden road. They cut the wires of the fence, passed on, and as they approached the house of the deceased he left his plow standing in the field, went to the house, and reappeared with his rifle in his hands. At this time defendants were about two hundred feet distant. They continued upon their way, one or both of them upon the ground by the side of the wagon, each with a gun in his hand; the deceased started from the house, angling toward a large tree which stood some distance in front of defendants and near the road. There is evidence that…

I dissent. The claim upon the part of appellants that the verdict of the jury was against the evidence cannot be upheld. There was clear proof of a voluntary tilling, from which the law raised a presumption of malice. To rebut this presumption the burden of proving self-defense devolved upon defendants, and, since the jury were not bound to believe the testimony of their witnesses, it cannot be said, as matter of law, that the verdict is without evidence to sustain it. *98 I cannot, however, agree with the view of the evidence taken in the opinion of the court, wherein it seems to be held that even if it is accepted as true it does not make out a case of self-defense.

The road in question was one which had been used by the defendants and others for years, and was the only means of ingress and egress to and from the valley for loaded wagons. The deceased, when he came to live on the place where he was killed, found the road open and in common use across the public land upon which he was merely a settler, and the evidence shows without contradiction that he sought and obtained the consent of his neighbors, including these defendants, to inclose this road upon the express condition…