(concurring specially). I concur in tlie affirmance of tlie judgment of conviction. It is tbe contention of tbe defendants that they were justified in attempting to use, or in threatening to use, a dangerous weapon to prevent tbe continued trespass of tbe complaining witness, after be bad been ordered to leave tbe premises involved, and after be bad refused so to do; that tbe jury, by its verdict, have found tbe defendant guilty of a simple assault, and not guilty of an assault with a dangerous weapon; that, therefore, such simple assault was justifiable, upon this record, as a matter of law. Tbe jury was warranted in finding tbe defendant guilty of a simple assault upon tbe information. Comp. Laws 1913, § 10,890; State v. Johnson, 3 N. D. 150, 152, 54 N. W. 547. In tbe record there is evidence not only that tbe defendants bad a monkey wrench and a hammer in their bands, but also that tbe complaining witness was pushed and shoved just prior to tbe use of these instrumentalities. Tbe question of whether the assault was justifiable was properly a question of fact for tbe jury.
Christianson, Ch. J., concurs.