The opinion
DeNT, PRESIDENT,
(dissenting):
In my opinion there has been a miscarriage of justice in this case resulting from a misapprehension of the law and the mis- *473 instruction of the jury. The deceased was engaged in committing a forcible trespass on the premises of the prisoner, in defiance of the law and armed with a dangerous weapon, although warned not to do so. While thus engaged in perpetrating his unlawful act in a threatening manner, the prisoner shot him in defence of his property and possibly of his person.
In the case of the People v. Payne, 8 Cal. 341 , Harigan & Thompson, Cases of Self Defence, 863, it was held that “The owner of property in the possession of the same has a right to use such force as is necessary to prevent a forcible trespass; and where a trespasser goes with the intent and with the means to commit a felony, if necessarjr to accomplish the end intended, the owner of the property may repel force by force to the extent of killing the aggressor." Cooley’s Blackstone, 2 Vol. B. 4, 180.
The law of defence of person or property as against a forcible law-breaker is a natural right of which a person cannot righteously be deprived by the laws of the land, and it justifies such means and force as the necessity of the case requires. As is said by Rutherford in his Institutes, “That law allows us to defend our persons or property, and such a general allowance implies that no particular means of defence are prescribed to us. Whatever means are necessary must be lawful; because it would be absurd to suppose that the law of nature allows of de-fence and yet forbids us at the same time to do what is necessary for this purpose. It follows that he who attempts to injure us gives us an indefinite right over his person, or a right to make use of such means to prevent the injury as his behavior and our situation make necessary. * * * The right of defending our goods is an indefinite one, and we are not naturally debarred from proceeding to extremities in their de-fence, where the obstinate injustice of those who would deprive us of them renders this necessary.” Gray v. Combs, 7 J. J. Marshall (Ky.) 478, 23 Am. Dec. 431 . The question presented by the undisputed evidence was not one of slight provocation or of a mutual combat or of a mere trespass free from malice and force. Hence instructions Nos. 1, 2 and 5, given for the State while properly propounding the law, were not applicable to the case and undoubtedly misled the jury. The real question being as to whether the prisoner used such force as the unlawful, wilful and malicious conduct of the deceased *474 made necessary for the. protection of his person and property, the court should have so instructed the jury, and not have directed their minds by instructions calculated to give them a wrong view of the issue involved. If the court does not know the law governing a case, how 'can a jury be expected to know it ?
If the forcible, unlawful, malicious and wilful conduct of the deceased had been presented to the jury in its true legal light they would not have found a verdict for murder in the first degree. The prisoner is thereby made to suffer for the death of the deceased brought on by reckless and lawless indifference to the just rights of others. This may be the end of human law, but it is not justice.