(concurring in part and dissenting in part) :
I agree that since defendant was charged with assault in the second degree by the use of a weapon likely to produce grievous bodily harm under subdivision 4 of section 94-602, R. C. M. 1947, evidence that the assault was committed by defendant upon Floyd E. Dowlin as sheriff with intent to prevent or resist the *111lawful apprehension or detention of himself as provided in subdivision 5 of section 94-602, was inadmissible.
Defendant was not advised by the information that he must be prepared to defend a charge growing out of the violation of subdivision 5 of that section.
That defendant was prejudiced by the variance between the allegations of the information and the proof there can be no doubt.. The record shows the following facts: FÍoyd E. Dowlin at the time referred to in the information was the sheriff of Rosebud county. Defendant, his wife and children, lived on a ranch about 14 miles from Forsyth, the county seat. On the evening of September 21, 1948, defendant’s wife called the sheriff by telephone. Mr. Dowlin was permitted to testify that defendant’s wife told him to “get out here quick. My husband is kicking and beating me and threatened to kill me;” that'she further said that defendant had pressed a loaded revolver against her breast and said, “Damn you, you’re next, I’m going to kill you.” The county attorney was permitted to testify that defendant’s sister, Dora Mae Chandler, called him by telephone on the same evening urging him to have the sheriff go to defendant’s ranch, stating in substance that defendant was shooting up the place and threatening his wife with a loaded gun and threatening to kill her unless she would accompany him to Billings. This he in turn communicated to the sheriff’s office. The under-sheriff Maurice Davidson had also been called by Dora Mae Chandler and he was permitted to testify that she told him substantially the same matter she related to the county attorney. This was all introduced for the purpose of showing that the-sheriff had probable cause to arrest defendant without a warrant. Such evidence I agree was inadmissible under the information as drawn.
Whether it would be proper for the wife to testify as to what she told the sheriff in inducing him to make the arrest, had the information been drawn under subdivision 5 of section 94-602, I express no opinion.
*112I think the judgment must be reversed because of the variance between the allegations of the information and the proof.
I disagree with my associates so far as they hold that the evidence is insufficient to make out a case for the jury under either subdivision 4 or 5 of section 94-602, and in ordering a dismissal of the information.
In viewing the evidence for the purpose of determining whether there is sufficient to make out a case for the jury, contrary to the plan pursued by my associates, we must consider that which is most favorable to the state. This is because the jury must determine the weight of the evidence and whether it is sufficient to show guilt beyond a reasonable doubt. Compare Lake v. Webber, 120 Mont. 534, 188 Pac. (2d) 416, and cases therein cited.
Here if the testimony of Mr. Dowlin is accepted as to what happened — and the jury would have the right to so find — then there is presented no accidental pointing of the loaded revolver at him, nor was there any mistake involved in so doing. If his testimony is accepted then the pointing of the loaded revolver at him was deliberate and intentional and done for the purpose of putting Mr. Dowlin in fear after defendant knew he was the sheriff and not one of the men from Texas referred to in the majority opinion.
When Mr. Dowlin and the undersheriff, Mr. Davidson, approached the defendant, this is what happened according to Mr. Dowlin’s testimony: “As I walked up towards the trailer house where I saw John standing, the defendant in this case, I got within about ten feet of him and he pulled, raised up a 38 loaded revolver and told me not to come any closer, and I stopped.
“Q. Wait a minute, you say ‘raised it up,’ what? A. Aimed it at me, he had it like this (indicating) aimed át me (indicating).
“Q. And said what? A. Not to come any closer.
“Q. Well tell us what was said or what occurred? A. And I *113says, ‘ I have a warrant for your arrest, to take you in, ’ he says, ‘I’ll not go in.’ He says, ‘I’m not going’.”
Mr. Dowlin then said he told Mr. Davidson to hand him the paper, which he did. From that time on defendant knew definitely that Mr. Dowlin was the sheriff and not one of the two Texans with whom he had had some trouble.
Mr. Dowlin said that after the paper was handed to defendant, “We walked down around the ear there, and all this time he had the six-shooter, the gun, on me, covered all the time and we walked down to where he was going to look at the paper. ’ ’
Mr. Davidson’s testimony was not at variance with that given by Mr. Dowlin when considered in its entirety. He testified that he recognized Mr. Storm at the time he leveled the gun at Mr. Dowlin, and that defendant pointed the gun at Mr. Dowlin after Mr. Dowlin had advised him that he had a warrant.
Mr. Davidson was asked about the gun held by defendant after he handed him the paper. His testimony was: “He held it in his right hand, like this (indicating). [The record does not give us the illustration.] Q. Was he pointing it at anybody! A. Well not after we started at the car; that is I didn’t pay too much attention, he was on one side and Whitey was a little bit in front of him. ’ ’
On cross-examination he was again asked about the relative position of the three as they walked to the light of the car and he testified: “Q. Would you say then that during that time the defendant had the gun pointed at the sheriff and the sheriff was walking in front of him! A. Yes, I would say so. Q. And the gun was pointed at the sheriff! A. Awful close; I would say it was pointed at him. ’ ’
I think this evidence is amply sufficient to make out a case for the jury that defendant deliberately and intentionally pointed the loaded gun at Mr. Dowlin for the purpose of putting him in fear so as to sustain a conviction of assault in the second degree under subdivision 4 of section 94-602. Also I think if the charge were based upon subdivision 5 or upon both subdi*114visions 4 and 5 combined, see State v. Marchindo, 65 Mont. 431, 211 Pac. 1093, the evidence would support a conviction.
As above noted the information coming to the sheriff about defendant’s conduct was given to him over the telephone. There was no occasion or necessity to have the facts repeated at the time Mr. Dowlin arrived at the ranch. The information may come from any credible person. State ex rel Brown v. District Court, 72 Mont. 213, 232 Pac. 201; State ex rel. Wong You v. District Court, 106 Mont. 347, 78 Pac. (2d) 353; State ex rel. Kuhr v. District Court, 82 Mont. 515, 268 Pac. 501. There was ample evidence upon which the jury could find that Mr. Dowlin had reasonable cause to believe that defendant had assaulted his wife with a loaded firearm within the meaning of section 94-6003 sufficient to make an arrest without a warrant. Mr. Dowlin concedes that he had no valid warrant but pretended to have one in order to get the defendant to point his gun .in some other direction.
The fact that defendant told a plausible story about the Texans is unimportant. The jury had and has the right to reject that story as it did in this trial and this notwithstanding defendant’s military record so carefully stressed in the majority opinion.
I think the most this court should do is to remand the case for ■ a new trial.