The prosecutor was no more than insolent to the defendant; he did not strike, nor offer to strike-him; nor does it appear-that he had any weapon of offence of any kind, nor was there any display of force, nor any direct threat. Pie refused, when commanded, to go out of the defendant’s house. The latter had the right to put him out, after he so refused to go, and to use reasonable., necessary force for that purpose, if need be, but not unnecessary or excessive force.
As the prosecutor offered no violence — had made no-assault — had displayed no arms or weapon of any kind. *786after the defendant got his gun, he should not have stricken him at once — surely he should have said to him before striking, “ Go out, else, as you see, I am prepared, and will use force.” This he might safely have done, and the presence of the gun in the defendant’s hands might — probably would — have driven him out without the blow. This he did not do. He at once struck him with the gun in a spirit of vengeance, not simply to get him out. So far as appears, it was not necessary to strike the blow without first commanding him to go out. It might have been otherwise, if the prosecutor had been armed, or violently moving upon or assaulting the defendant. The law does not allow’ unnecessary violence.
The instruction of the Court to the jury omplained of, was therefore correct. There is no error and the judgment must be affirmed.
Affirmed.