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 the deceased had each made threats against the life of the other, if he attempted to enter upon the land and cut the grain; that on the day of the shooting the defendant was about to enter upon the land through said wire fence, and had cut the same for the purpose of passing through with his header-wagon; that the deceased met him at the gap, and forbade him passing through, and told him if he did it w-as at his peril, and defendant *38told deceased he would pass through, that the header was coming, and that if he stood there until it came up he did so at his peril; that-the deceased stepped forward and stooped down as if in the act of closing up the gap, when the defendant moved forward within a few feet of him and forbade it; that the deceased at once drew his pistol,' when a son of the defendant jumped between the parties and seized the deceased around the body, when the deceased fired, inflicting a severe wound on the defendant, and then turned his pistol on the son, who was still struggling with him, and fired two shots at him, wounding him first in the leg, and then in the eye; that after the deceased had drawn his pistol the defendant drew his, and fired several shots at the deceased, some of which took effect and caused his death. Whether the first shot fired by the defendant was immediately after the first shot of the deceased, or after he had shot and wounded the son, is not clear. The defendant and his son both testified that the'former did not fire until after the former was wounded, and the latter was twice shot and wounded. A number of other eye-witnesses, some of whom were called for the prosecution, testified that the deceased drew his pistol first, and fired first, but they could not tell who fired the following shots, or at what times, or by which one of the shots either of the parties was wounded. There was evidence tending to show that the defendant had, both before and after the shooting, used language indicating ill-will toward the deceased. There was also evidence admitted tending to show that the wife of the deceased had title to the land in dispute, and that the defendant had not.
We have been unable to discover any evidence in the record which would warrant a conviction of murder in the second degree, or any other offense. The defendant was in the actual and peaceable possession of the land, and had a crop growing on it that he was about to bar-, vest. This the deceased attempted by force to prevent. *39This he had no right to do, conceding that his wife had a valid title to the land. He was, therefore, the aggressor from the beginning. He had put the lives of both the defendant and his son in imminent peril before he was fired upon. However deplorable the result may have been, he alone was responsible for it. The evidence shows conclusively that he had gone there for the purpose of preventing the defendant from going on the land. The acts of the defendant were strictly in the defense of himself and his son, and as a matter of law he was justified. The fact that the defendant had gone there armed was wrong in itself, and a circumstance against him, but it could not overcome the undisputed facts showing his acts to have been justifiable.
There are other questions presented, but they are of minor importance, and need not be considered.
Judgment and order reversed, and cause remanded.
Thornton, J., and Sharpstein, J., concurred.