State v. Frey

The trial court erred in refusing to instruct the jury on trespass, justification of force to prevent trespass, defense of others, and mistake of fact. The majority affirms that error.

1. Trespass Instructions.

Frey proposed Instructions # 2 and # 3. These instructions defined trespass and justification of force to prevent trespass under SDCL 22-18-4.* The trial court refused these instructions. Instead, the court instructed the jury, over Frey’s objection, that an officer acting within his authority is ordinarily not trespassing when investigating a crime upon private property-

To support the…