JOHNSTON v. UNITED STATES, 2 Alaska Fed. 780

GILBERT, Circuit Judge, after stating the case as above, delivered the opinion of the court.

It is contended on behalf of the plaintiff in error that if the defense had been allowed to prove that Waskey, the prosecuting witness, admitted Gray’s ownership of a one-half interest in the mining claim, and conceded the right of the latter to have a representative at all times on the ground, and the other facts suggested in the offer of proof, they would have established the fact of the co-tenancy of Gray with the other owners, and therefore the right of Gray to the possession of the premises in person or by his agent, since by the Code of Alaska it is provided that “all persons having an undivided interest in real property are to be deemed and considered tenants in common.” But this argument leaves out of consideration the nature of Waskey’s possession.

There is nothing in the evidence or in the offer of proof to show that he was a co-tenant with any one. He was a lessee, and as such it must be presumed that he was entitled to the exclusive possession of the leased premises, and therefore had the right to resist with a reasonable degree of force a trespass upon his possession. For aught that appears to the contrary, Gray may have been one of his lessors.

According to the offer of proof, the only right which Waskey recognized in Gray was his right to be represented by one person on the premises ; but this recognition of right had been fully answered by the permitted presence of Ryan, who, as the representative of Gray, was then, and for three weeks had been, on the premises. We find no error in the exclusion of the proffered testimony.

Waskey was in the peaceable possession of the mining claim, operating it under a lease which gave him, as we must assume, the exclusive right to the possession when the plaintiff in error and Cummings, armed with revolvers, invaded his possession, claiming no right to be there except the fact that they had been sent there by one Wood, who was the attorney of Gray. They did not claim to be representatives of Gray, and they made no mention of Gray.

It is not matter for surprise that Waskey believed, as he testified that he did, that these men were the advance guard of a set of men that were trying to overthrow his lease of the ground and take possession of it in some way or other. The proof which was offered and rejected would not have established their right to be there.

For it might have been true that Gray was the owner of an undivided one-half interest in the mining claim, and that Waskey admitted his ownership and his right to have a representative on the ground, and that such a representative was on the premises at the time of the assault and had been there for three weeks prior thereto, and yet it would not follow that the plaintiff in error or Cummings had any right to enter upon the premises as the representatives of Gray or otherwise.

Again, it is to be observed that the stated purpose and the only expressed purpose of the proffered testimony was to impeach the witness Was-key. It was not admissible for that purpose, for Waskey had not dénied that he made the statement attributed to him which was embodied in the offer of proof. It is contended that the court gave contradictory and inconsistent instructions, which were calculated to mislead the jury, to the prejudice of the plaintiff in error.

The court instructed the jury as follows: “A trespass merely against the property of another, not his dwelling house, is not a sufficient provocation to warrant the owner in using a dangerous weapon; therefore, if you find that defendant Johnston was representing any one having an interest in the lands mentioned, and that Johnston armed himself for the purpose of making an entrance on said lands, he would have no right to do so.” Again, the court instructed the jury as follows: “You have nothing to do with the question of title, gentlemen, in your consideration of this case.

If the ground were the defendant’s and Waskey were in fact a trespasser, the law of Alaska provides a lawful way of obtaining possession of the property wrongfully withheld by another, and therefore, if you find that the assault, if there was an assault within the definition I have given you, was committed as charged, you will give no heed whatever to the question of who owned the ground.” And again: “The person or persons in actual foot possession of the ground mentioned in the testimony had a right to command any intruder to depart, and, if he refused, to eject him from the premises by the use of sufficient physical force,” etc.

It is said that in these charges the court in one breath instructed the jury that they had nothing to do with the question of title, and in the next said that if they found that the plaintiff in error was representing any one having an interest in the lands mentioned, and that he armed himself for the purpose of making an entry on said lands, he would have no right to do so. Upon the evidence the court was clearly right in charging the jury that they had nothing to do with the question of title in the case.

Nor was there any error or inconsistency in charging that Johnston, even if he were representing the owner of an interest in the land, had no right to arm himself for the purpose of making an entry thereon. From the fact that one is the owner of an interest in land, it does not follow that he shall have the right to make an armed entry upon that land when the possession is exclusively and rightfully in another. The evidence was without dispute that Waskey had the exclusive and rightful possession.

The presence on the premises of Gray’s representative, Ryan, was evidently permitted by Waskey as a matter of grace and not of right, in order that Gray might have a witness to the clean-up. It is contended further that the court erred in giving the instructions above referred to, in that he assumed therein as a fact that the revolver referred to as being in the possession of the plaintiff in error was a dangerous weapon within the contemplation of the statute.

This particular feature of the instruction was not brought to the attention of the trial court, was not made the subject of an exception, and is not specified in the assignments of error. But aside from this, we do not find that the instructions were, on the ground suggested, justly subject to criticism. It was the contention of the prosecution that the revolver used by the plaintiff in error was a dangerous weapon.

The court instructed the jury as to the right of the plaintiff in error to commit an assault with a dangerous weapon, and said: “If, however, you should find from the evidence that the revolver used by Johnston was a dangerous weapon under the circumstances of its use at the time of the affray, then you would not be justified in rendering a verdict of simple assault.” Error is assigned to the language of the district attorney during his closing argument to the jury as follows: “Then came this man Johnston, this hired gun-fighter, this hired ruffian.” Timely exception was taken to this language by counsel for the plaintiff in error, but the record discloses no request to the court to instruct the jury in regard to the same, and, since the record does not contain the whole of the charge to the jury, we do not know that the court did not in fact give such instruction.

The use of language by counsel, calculated to prejudice a defendant and not justified by the evidence, is improper and censurable, and should be discountenanced by the court. In such a case, it is the duty of the trial court to set aside the verdict unless satisfied that the improper language was not instrumental in securing it. But invective based on the evidence and inferences legitimately to be derived therefrom are not inhibited, and it is usually within the discretion of the trial court to determine whether or not the limits of professional propriety have been exceeded.

Ordinarily the exercise of that discretion will not be reviewed in an appellate court unless the invective is so palpably improper that it may be seen to have been clearly injurious. State v. Brooks, 92 Mo. 542, 589, 5 S.W. 257, 330; State v. Calhoun, 72 Iowa, 432, 34 N.W. 194, 2 Am.St. Rep. 252; State v. Griffin, 87 Mo. 608, 615; People v. Perriman, 72 Mich. 184, 40 N.W. 425; State v. Emory, 79 Mo. 461. We are not convinced that the language so used by the district attorney was such as to justify the reversal of the judgment.

The plaintiff in error and his companion came upon the mining claim armed with revolvers and in the hire of another. They were intruders upon Waskey’s rightful and peaceable possession. They came with the evident intention of using their weapons with deadly effect in case their unlawful intrusion were interfered with. We cannot say that it was beyond the permissible limit of argument and invective to refer to them as “hired ruffians and hired gun-fighters.” Error is assigned to the refusal of the court to give to the jury certain instructions which were requested on behalf of the plaintiff in error.

We cannot consider this assignment, for the reason that the whole of the charge given by the court to the jury is not in the record. Where the record does not contain the whole charge, it will be presumed that the court properly charged upon every branch of the case, and it will be presumed that further instructions were given to correctly modify erroneous instructions shown by the record, if it is very clear that these could have' been so corrected and the record is incomplete. Bennett v. Harkrader, 158 U.S. 441, 15 S.Ct. 863, 39 L.Ed. 1046; Northern Pac. Ry. Co. v.

Tynan, 119 F. 288, 56 C.C.A. 192, and cases there cited. We find no error for which the judgment should be reversed. It is accordingly affirmed. ROSS, Circuit Judge, dissents.