Concurring in the General Conclusion.— I am unable to concur in some of the conclusions drawn from *384the evidence by Chief Justice Stewart. The evidence does not show that the appellant knew who the parties were that were dogging and running his lambs and ewes. That fact was reported to him, and having two bands of lambs and ewes in that vicinity, he did not want the bands mixed, and took three of his men and went immediately to find the sheep. He did not know at that time who had been dogging and running his sheep, and the evidence does not show that he knew where the complaining witness was until said witness. called to him when he was from 100 to 300 yards away and going in another direction. The complaining witness called to bim and told him he wanted to see him, and he then turned and rode down in the vicinity of the complaining witness, and before he got to him the complaining witness left the fence that he was fixing and with a hammer in his hand went across a ditch some thirty or forty feet to meet the defendant. The evidence shows that at that time defendant was on his horse and in the highway. The complaining witness continued to advance toward the defendant until he arrived to within about tén feet of him, and defendant knowing the fighting reputation of the complaining witness, according to his testimony, threw his gun on him and told him to stop and not to come nearer. The complaining witness himself testified as follows: “ I was about ten feet from the defendant about the time he had his gun in his hand and on horseback, pointed at me.I called the defendant because I wanted to talk to him; I was at the fence when I called, and then when he came toward me I stepped out towards the road over from the fence. I stepped across that ditch — it is a little ravine, it has no ditch to it — it is just a little ravine, and I stepped across it. I had the hammer in my hand; I held the hammer the same as any man would hold a hammer, in my hand, right by the handle. I came toward the defendant.The defendant at that time was right at the road. I came right across the road; he probably came a foot or two across the road.” This is a part of the testimony of the complaining witness, and it shows that he had called the defendant and then proceeded with his hammer in his hand toward the defendant to *385within about ten feet of him, and then the defendant threw his gun down on him and told him not to come nearer.
A witness on behalf of the state by the name of Thompson testified, among other things, as follows: “Percy [the complaining witness] was standing there when the defendant was holding his gun on him. They were talking back and forth.' I said they were rather abusing each other .... and the defendant was holding him back with a gun. ’ ’ Why holding him back with his gun? Because he was advancing on him. The evidence shows that the reputation of Percy was bad for peace and quiet; that he appeared to be of a fighting disposition, and having called the defendant down to where he was and proceeded toward him with a hammer in his hand to within ten feet of defendant before he threw his gun down on him, indicates, to my mind, that the defendant did only what any prudent man would do to protect himself under the facts and circumstances shown by the evidence. According to Percy’s own testimony, the defendant was not more than a foot or two out of the main traveled road, on his horse, and Percy was advancing on him with his hammer and had arrived within ten feet before the defendant made any demonstration toward him whatever. And Thompson, a disinterested witness on behalf of the state, testified that they (defendant and complaining witness) stood there talking back and forth with the defendant holding the complaining witness off with a gun. It must have appeared to that witness that the complaining witness was desirous of getting nearer than ten feet to defendant, else there would have been no necessity of holding him off with his gun. He certainly could have talked to defendant at a distance of ten feet.
The chief justice states in his opinion that the only conclusion that the prosecuting witness or the jury could arrive at was that the defendant was looking for trouble. I do not think any such conclusion can reasonably be drawn from the evidence. The defendant knew the character of the complaining witness, and he knew if he let him approach nearer than ten feet with a hammer in his hand he might knock him off his horse before he could get out of his reach, or before he could *386level his gun on him. In my view of the evidence, it does not matter whether the gun was loaded or not, for the defendant would have a right in self-defense to stop the complaining witness from coming nearer than ten feet by drawing his gun on him if he were coming to him with a hammer in his hand. In this ease I think it is a violent presumption that the gun was loaded in the face of the positive testimony of the defendant that it was not loaded but that he used it as he did to prevent the defendant from coming any nearer to him.
It is surprising to me, from all the evidence contained in the record, that the jury should find the defendant guilty. The jury must have concluded that the complaining witnesses and other witnesses for the state, as well as the witnesses for the defense, did not testify to the truth, as the evidence shows that the complaining witness advanced within ten feet of the defendant and that defendant was holding him oft with his gun, thus preventing him from coming within striking distance with the hammer.
However, since the question was presented to the jury whether the defendant acted in self-defense in repelling a threatened injury, and they found against him on that point and recommended him to the mercy of the court, I am inclined to concur, and do concur, in affirming the judgment.
Ailshie, J., concurs.Petition for rehearing denied.'