80 P. 865 | Utah | 1905
Lead Opinion
After stating tbe facts, delivered tbe opinion of tbe court.
Appellant contends that tbe judge of tbe city court bad no jurisdiction to act as a committing magistrate, and therefore tbe district court was without jurisdiction to try tbe case. The constitutional and statutory provisions bearing upon tbis question are as follows: Section 1, article 8, Constitution provides that:
“The judicial power of tbe State shall be vested in tbe Senate sitting as a court of impeachment in. a Supreme Court, in district courts, in justices of tbe peace and in such other courts inferior to tbe Supreme Court as may be established by law.”
Section 21 provides that tbe “judges of tbe Supreme Court, district courts and justices of tbe peace shall be conservators of tbe peace and may bold preliminary examinations in cases of felony.”
Section 14, chapter 109, page 113, session laws 1901, provides that:
“Tbe city court shall have original jurisdiction of cases arising under or by reason of tbe violation of any city.: ordinances, and shall have tbe same powers and jurisdictions as justices of tbe peace in all other criminal actions, and tbe judges of said courts shall be magistrates with all powers and jurisdiction of tbe justices of tbe peace as magistrates.”
It is conceded that under and by virtue of said section 1, Constitution, tbe Legislature bad authority to create tbe city
*35 “Indeed, the language of the Constitution, owing its whole force to its ratification by the people, is always to be taken in its common acceptation — its plain, ordinary, natural, untechnieal sense — unless the very nature of the subject indicates, or the context suggests, that it was used in its technical sense. It must also be presumed that the people who who adopted the Constitution understood the force and extent of the language used, and that the language has been employed with sufficient precision to convey the intent. It follows that, where the words of the constitutional provision, taken in their ordinary sense and in the order of their grammatical arrangement, embody a definite meaning, which involves no absurdity or conflict with other parts of the same instrument, the meaning thus apparent on the face of the provision is the only one that can be presumed to have been intended, and there is no room for construction.”
By adherence to this rule in the construction of the provisions last referred to of the Constitution, we not only give to the language used its plain and ordinary meaning, but avoid the absurdities and mischievous consequences heretofore pointed out which would inevitably result should we adopt the construction contended for by appellant. We fail to discover any conflict whatever, either in letter or spirit, between the provisions of the Constitution referred to and the provisions of the act creating city courts and defining their jurisdiction.
The defence requested the court to give the jury the following instruction: “If you find from the evidence that Mr. Gleason was shot by the defendant after the attempt to rob had been voluntarily and in good faith abandoned by the defendant, and that Gleason was not at that time in danger of being robbed, and by the conduct of defendant Mr. Gleason understood these facts, and that if Mr. Gleason afterwards assaulted the defendant in such a way as to induce in the de
“A man who assails another with a deadly weapon cannot kill his adversary in self-defense until he has fairly notified him by his conduct that he has abandoned the contest, and, if the circum*39 stances are such that he cannot so notify him, it is his fault, and he must take the consequences.”
In the case of People v. Button, (Cal.) 39 Pac. 1073, 28 L. R. A. 591, 46 Am. St. Rep. 259, it is also said:
“In order for an assailant to justify the killing of his adversary, he must not only endeavor to really and in good faith withdraw from the combat, but he must make known his intentions to his adversary. His secret intentions to withdraw amount to nothing. They furnish no guide for his antagonist’s future conduct. They indicate in no way that the assault may not be repeated, and afford no assurance to the party assailed that the need of defense is gone.”
And again, in the same opinion:
“It is therefore made plain that knowledge of the withdrawal of the assailant in good faith from the combat must be brought home to the assailed. lie must be notified in some way that danger no longer threatens him, and that all fear of further harm is groundless.”
In 25 Am., and Eng. Encyc. L., 270, the rule is stated as follows:
“While he remains in the conflict, to whatever extremity he may be reduced, he cannot be excused for taking the life of his antagonist to save his own. In such a case it may be rightfully and truthfully said that he brought the necessity upon himself by his own criminal conduct.”
And again it is said, on page 271:
“If the circumstances are such, arising either from the condition of his adversary, caused by the aggressor’s acts during the affray, or from the suddenness of the counter attack, that the original assailant cannot so notify his adversary, it is such assailant’s fault, and he must take the consequences.” (1 McClain, Crim. Law, secs. 309,*40 310; Stoffer v. State, 15 Ohio St. 47, 86 Am. Dec. 470; State v. Rogers, 18 Kan. 78, 26 Am. Rep. 754; Parker v. State, 88 Ala. 4, 7 South 98; Carpenter v. State, 62 Ark. 306, 36 S. W. 900; People v. Robertson, 67 Cal. 646, 8 Pac. 600; Smith v. State, 73 Ga. 79.)
Section 4638, Revised Statutes 1898, provides that a private person may arrest another “for a public offense committed or attempted in his presence.” Therefore, when Gleason stated to defendant that “he had better put up his hands,” it was his duty to throw down his gun and surrender himself as a prisoner. And Gleason and Brighton, under the foregoing provision of the statute, had a right to use whatever force was necessary to disarm him and prevent his escape. The same rule does not govern in this case that applies to parties engaged in a mutual combat, or one that arises from a sudden quarrel or heat of passion, wherein both parties may be at fault. In such a ease the aggressor, if he can do so, may in good faith withdraw from the combat and place of encounter, and, if he does, the party assailed is not justified in pursuing him for the purpose of continuing the affray. In this case the defendant was acting in the role of an outlaw and hold-up. He was endeavoring to, and in fact was in the act of, robbing a couple of blameless and inoffensive men, and, when he was told to put up his hands, he was in effect placed under arrest; and the killing of these men, under the circumstances as related by himself in order to make his escape, was just as culpable and indefensible as though he had, without warning, shot them down when he first entered the car. At no time from the moment he entered until he fired the fatal shot that killed Gleason did he do anything that would even suggest that he intended in good faith to withdraw from the contest, much less abandon his felonious attempt of robbery or surrender himself as a prisoner. True, according to his testimony, which, for the purpose of this case, we must accept as true, after he had shot Gleason he said to Brighton, “Bor God’s sake man! don’t kill me; I will give up.” When he made this statement he bad already committed the crime
In concluding tbe discussion of this branch of tbe case, we have no hesitancy in saying that, according to defendant’s own testimony, which, as hereinbefore stated, we must assume to be true, from tbe time be entered tbe car and told tbe occupants to throw up their bands, and until be killed Brighton, there was not a moment that either Gleason or Brighton would not have been justified in shooting bim down — • first, for tbe protection of their own persons and lives; and, second, to prevent bis escape. And there is an entire absence of testimony that would even tend to suggest that be, at any time after tbe affray began, ceased to be tbe aggressor. This is conclusively shown by bis testimony, wherein be stated, referring to the time be slipped and fell: “There was nothing said or done by tbe men up until this time, except as I have stated; there was nothing done or stated to cause me to abandon tbe thought of taking tbe money from these men.” In reading tbe record, one looks in vain to find any evidence that prior to tbe shooting of Gleason tbe defendant gave notice of any kind of any intention of abandoning bis attempted robbery or of ceasing from bis felonious assault. Tbe instructions asked for by tbe defendant were therefore properly ' refused.
The first question presented by this assignment of error is, was it incumbent upon the defendant to personally make the objections and claim his privilege from answering the questions asked, respecting the commission of other crimes by him, or did he have the right to make his objections and claim his privilege and immunity through his counsel? The general rule is that the right to refuse to answer incriminating questions .is a personal privilege of the witness, which he can either exercise or waive. And the authorities all agree that, if the witness chooses to answer incriminating questions, neither the defendant nor his counsel can legally object. But we do-not understand the authorities to hold that, when the witness is also the defendant in the case, his counsel cannot speak for him and make the proper objections and protect him in his right and immunity from answering questions on cross-examination respecting the commission by him of other crimes which, are in no way connected with the one for which he is on trial. We have been able to find but three cases which go to the extent of holding that, -when a defendant takes the witness stand in his own behalf, he, for the time being, in effect ceases to be a defendant, and forfeits his constitutional right to the assistance of counsel. The first case is that of the State v. Wentworth, 65 Me. 234, 20 Am. Rep. 688, and the court, in that, case, bases its conclusions upon certain New York cases cited in the opinion. It will be seen by an examination of those cases that the question as to whether the defendant can speak through his counsel and claim his immunity from answering incriminative questions was not before the court in either of them. The New York court in a later decision (People v.
“I understand it to be conceded by the counsel for the people that this objection would be valid if it had been taken by the witness himself instead of the counsel. . . . Such is the rule as to a witness who is not himself a party. It is then a question between the witness and the court, with which the party has nothing to do, and with which counsel of the party has no right to interfere. . • . . But when, the witness is also the party, I see no reason for the application of this rule. By taking the stand as a witness, while he may subject himself to the rules applicable to other witnesses, he is not thereby deprived of his rights as a party; and it follows that his counsel, while he is in the witness box, has a right to speak for him, and that an error committed by the court against him may inure to his benefit as a party. Especially ought this protection to be afforded to persons on trial for criminal offenses, who often, by a species of moral compulsion, are forced upon the stand as witnesses, and, being there, are obliged to run the gauntlet of their whole lives on cross-examination, and every immorality, vice, or crime of which they may have been guilty, or suspected of being guilty, is brought out, ostensibly to affect credibility, but practically rised to produce a conviction for the particular offense for which the accused is being tried, upon evidence which otherwise would be deemed insufficient. Such a result is manifestly unjust, and every protection should be afforded to guard against it. I am of opinion that the witness was privileged from answering the question, and that the objection was well taken by his counsel, and that the exception is available to him. Neither in the Brandon Case, 42 N. Y. 265, nor in*46 the Connors Case, 50 N. Y. 240, was tbe question of privilege presented.”
Tbe two New York eases mentioned in tbe opinion just quoted are tbe cases cited in tbe case of tbe State v. Wentworth, supra. Tbe next case is that of tbe People v. Larsen, 10 Utah 143, 37 Pac. 258, which is cited and relied upon by tbe Attorney General as decisive of tbis question. In that case tbe defendant, wbo bad testified as a witness in bis own bebalf, was asked on cross-examination tbe following question: “Have you ever been arrested for a crime similar to tbis?” Tbe court, in tbe course of tbe opinion, says: “In tbis case tbe question was not claimed by tbe witness to be privileged. It was simply objected to by counsel as immaterial, irrelevant, and not cross-examination. Nor did it imply an answer wbicb would prove a link in a chain of testimony and render it sufficient to convict bim of crime. Nor would it be criminative evidence at all.” It will tbus be observed that tbe question now under discussion was not in any sense at all before tbe court. Therefore while tbe expressions of tbe court on this question in that case are entitled to respectful consideration, they cannot be regarded as a precedent by wbicb tbis court must be bound in tbis and other like cases, should any arise. Tbe only other case we have been able to find in wbicb tbis doctrine is announced is tbe case of tbe State v. Kent, 5 N. D. 516, 67 N. W. 1052, 35 L. R. A. 518. By an examination of that case it will be seen that on tbe cross-examination of the defendant be was questioned about tbe commission of other crimes by bim, for tbe purpose of showing a motive for tbe commission of tbe crime for wbicb be was on trial. To tbis course of examination counsel for tbe defendant objected, and based bis objection on tbe grounds that it was incompetent, irrelevant, immaterial, improper cross-examination, and that tbe statements were privileged, wbicb privilege was claimed both by counsel and defendant, and that tbe defendant declined to answer tbe questions on tbe ground that it would tend to disgrace bim. There was evidence in tbe record which tended strongly to show that be bad committed tbe crime for wbicb be was on trial for tbe pur
“There is ample authority for the proving of alias and collateral crimes for the purpose of showing the motive for the commission of tbe crime for which the defendant is being tried, the limitation being that such alias crime must bear such a relation to the crime for which the party is being tried that the court can clearly see that, if established, it will have a tendency to furnish motive for the commis-
V’ sion of the other crime.”
And again the court says:
“Plaintiff in error had denied what Swidenski had testified was his self-declared motive. The subject of motive being thus opened up, it was proper to cross-examine him upon the entire subject.”
The court having determined, and very properly so, that the questions, under the circumstances of that case, were not privileged, the question as to whether the objection should be made by counsel or in person by the defendant became unimportant; and the opinion of the court, wherein it is held that the defendant in that case could not speak through his counsel and claim his privilege from' answering questions that would tend to disgrace him, but that it was incumbent upon him to personally make the objection, at most, was only dictum. The court having held that the questions were not privileged, and that the defendant was properly compelled to answer them, the question as to whether a defendant in a criminal case who desires to claim his exemption from answering disgracing or incriminating questions is bound to claim his privilege personally or may do so through his counsel was no longer before the court. (McKelvey on Ev., 304.) The rule announced by the New York Court of Appeals is more in ac
The next question raised is, did the trial court err in permitting the district attorney, over defendant’s objections, to ash him, on cross-examination, the questions hereinbefore mentioned respecting the commission by him of other crimes, none of which were in any way linked or connected with the one for which he stands convicted? The testimony thus sought to be elicited in no way tended to prove any issue, fact, or circumstance in the case. Nor did it directly or remotely refer to any fact or circumstance testified to by him, or that came within the range of his examination in chief. We recognize the well established rule that a defendant, when he takes the witness stand in his own behalf, may be cross-examined the same as any other witness. He may be examined as to any fact, occurrence, or transaction relevant to the issue, or which sheds light upon the commission and character of the offense for which he is on trial. And he may be questioned for the purpose of testing his memory, and examined as to matters which tend to discredit his testimony or which affect his credibility as a witness. But it is apparent that the questions complained of in this case were not asked, nor was the evidence sought to be elicited thereby, for any such purpose. And it is apparent that the questions were not asked, nor was the evidence sought to be elicited thereby, for the purpose of affecting his credibility as a witness or the weight of his testi-
“Every person guilty of murder in the first degree shall suffer death, or, upon the recommendation of the jury, may be imprisoned at hard labor in the State Prison for life in the discretion of the court.”
And the jury was so charged. And in Calton v. People, 130 U. S. 83, 9 Sup. Ct. 435, 32 L. Ed. 870, on appeal from the territorial Supreme Court of Utah, it was held reversible error not to so charge the jury. Whatever disposition, if any, there may have been on the part of the jurors to make the said recommendation, may have been entirely overcome and removed by reason of these rulings of the court. There is no settled and arbitrary rule defining the limits within which the ' cross-examination must be confined. The latitude that may be allowed is largely within the discretion of the trial court, to be exercised and governed by the facts and circumstances of each particular case. The demeanor and appearance of the-witness while testifying, the extent and character of his testimony in chief, his inclinations and prejudices, the disposition he has shown to speak or evade the truth, as the case may be, the interest or lack of interest, if any, he has in the result
“I am of the opinion that the cross-examination of the persons who are Aptnesses in their own behalf when on trial for criminal offenses should in general be limited to matters pertaining to the issues, or such as may be proved by other witnesses. I believe such a rule necessary to prevent a conviction*52 for one offense by proof that the accused may have been guilty of others. Such a result can only be avoided practically by the observance of this rule/’
This same doctrine was reaffirmed in a later case by the New York court. (People v. Crapo, 76 N. Y. 288, 32 Am. Rep. 302.) In that case the defendant was on trial for burglary, and testified as a witness in his own behalf. On cross-examination he was asked the following question, which was objected to: “Were you also . . . arrested on a charge of bigamy ?” This was held to be reversible error. The court, in the course of the opinion, said:
“The discretion which courts possess- to permit questions of particular acts to be put to witnesses for the purpose of impairing credibility should be exercised with caution when an accused person is a witness in his own trial. He goes upon the witness stand under a cloud; he stands charged with a criminal offense not only, but is under the strongest possible temptation to give evidence favorable to himself. His evidence is therefore looked upon with suspicion and distrust, and if, in addition to this, he may be subjected to a cross-examination, every incident of his life and every charge of vice or crime which may have been made against him, and which may have no bearing on the charge for which he is being tried, he may be so prejudiced pn the minds of the jury as frequently- to induce them to convict upon evidence which otherwise would be deemed insufficient. It is not legitimate to bolster up a weak case by probabilities based upon other transactions. An accused person is required to meet the specific charge made against him, and is not called upon to defend himself against every act of his life.”
Underhill in his work on Criminal Evidence (section 62),' says r
*53 “To compel the accused to answer indiscriminately all questions, respecting past criminal transactions, wbicb, ■ though similar, are separate and distinct from, that for which he is on trial, would not -only be treating him more harshly than other witnesses, but would be a serious infringement of his constitutional privileges.”
(G. C. & S. F. Ry. Co. v. Johnson, 83 Tex. 628, 19 S. W. 151 State v. Houx, 109 Mo. 654, 19 S. W. 35, 32 Am. St. Rep. 686; Elliot v. Boyles, 31 Pa. 67; Commonwealth v. Schaffner, 146 Mass. 515, 16 N. E. 280; Emery et al. v. State, 101 Wis. 648, 78 N. W. 145; Anthony v. State [Idaho] 55 Pac. 884; People v. Un Dong, 106 Cal. 83, 39 Pac. 12; State v. Gleim [Mont.], 41 Pac. 998, 31 L. R. A. 294, 52 Am. St. Rep. 655; State v. Huff, 11 Nev. 17; State v. Underwood, 44 La. Ann. 852; 11 South. 277; Gale v. People, 26 Mich. 157; People v. Pinkerton, 79 Mich. 110, 44 N. W. 180; Elliot v. State, 34 Neb. 48, 51 N. W. 315; State v. Saunders, 14 Or. 300, 12 Pac. 441; Bailey v. State, 67 Miss. 333, 7 South. 348; State v. Carson, 66 Me. 116; Clarke v. State, 78 Ala. 474, 56 Am. Rep. 45; Commonwealth v. Thrasher, 11 Gray 450.)
For the reasons herein stated, the case is reversed, with directions to the trial court to grant a new trial.
Concurrence Opinion
concurring in the judgment of reversal, but not upon the grounds stated in the majority opinion.
I agree with my Brethren that this case ought to be reversed, but I do not agree with them as'to the grounds upon which the reversal should be placed. Nor do I agree with them as to all propositions of law which they have announced, nor that they have “in substance quoted all the evidence bearing on” the question of abandonment. I will therefore, as this is an important case, state my views respecting the main questions presented.
As shown by the record, the only person who was present at
The appellant, among other things, contends that the judge of the city court, who bound him over to the district court, had no jurisdiction as a committing magistrate, under the Constitution and laws of this State, and that therefore the subsequent proceedings in the district court and his conviction were unlawful and void. The city judge acted in this cause under
“The city courts shall have exclusive original jurisdiction of cases arising under, or by reason of the violation of any city ordinances, and shall have the same powers and jurisdiction as justices of the peace in all other criminal actions, and the judges of said courts shall be magistrates, with all powers and jurisdiction of justices of the peace as magistrates.”
It is conceded by the appellant that if the provisions of the act are constitutional the city judge had power to conduct the preliminary hearing in question, but it is insisted that this section is in contravention of the Constitution and void. The provisions of the organic law, cited and relied upon as affecting such result, are found in sections 1 and 21, article 8, Constitution. Section 1 reads:
“The judicial power of the state shall be vested in the Senate sitting as a court of impeachment, in a Supreme Court, in district courts, in justices of the peace, and such other courts inferior to the Supreme Court as may be established by law.”
It is quite clear that under this section the Legislature had the right to establish city courts, like the one in question, which are inferior to the Supreme Court, and confer upon them judicial power which they must exercise in accordance with the provisions of law. Undoubtedly the conducting of preliminary hearings of persons charged with crime, by a court or magistrate, is the exercise of judicial power, which is not exclusive in the Supreme Court, and therefore, under this section of the fundamental law, the Legislature would have the right to confer upon inferior courts of the class in question that power, to be exercised concurrently with other courts. But the appellant contends that when this section is construed with section 21 of the Constitution, above referred to, the conferring of power to conduct such preliminary hear
“Judges of the Supreme Court, district courts and justices of the peace, shall be conservators of the peace, and may hold preliminary examinations in cases of felony.”
Counsel for the appellant insists that the word “may,” employed in this section, must be construed, to mean “shall;” that, when so construed, exclusive jurisdiction to hold preliminary examinations in cases of felony is vested in the courts mentioned in this section; and that the maxim, “expressio unius est exclusio alterius ” applies-. This construction of section 21, thus contended for, would prohibit the Legislature from conferring a power which, as has been seen, it clearly may confer under the provisions of section 1, and would obviously render the two sections repugnant to each other. Such an interpretation would be a violation of the familiar rule of constitutional construction that, if possible, all parts of the instrument must be so construed as to render them harmonious with each other, and so as to give effect to each part.
“Where provisions seem to conflict, a construction which will harmonize them, if practicable, will be adopted, and in construing them it must be presumed that the framers of the instrument used the words in their ordinary and natural sense. One provision of a Constitution will not be permitted to defeat another if by any reasonable interpretation both can be given effect.” (State ex rel. Lewis, 26 Utah 120, 125, 72 Pac. 388; Cooley’s Const. Lim. (7 Ed.), pp. 91-94; 8 Cyc. 730.)
I have no disposition to depart from these principles and adopt an interpretation which would produce conflict between the two sections. Nor do I think the maxim referred to has any application here. By giving the word “may” its plain and ordinary meaning, attributing to it the sense in which it
“The city judges are magistrates, but, while sitting as magistrates, they exercise the powers and jurisdiction applicable to justices of the peace.”
It was also, after having referred to the jurisdiction of city courts and of justices’ courts, there said:
“It will thus be observed that city courts are quite similar to justices’ courts, and that the office and duties of a city judge are substantially the same as the office and duties of a justice of the peace.”
In line with the ruling thus made, a city judge may hold preliminary hearings the same as a justice of the peace, and I see no reason to question the correctness of the holding in that case. Aside from that decision, however, I am of the opinion that the section of the statute above considered is a valid exercise of legislative power under our Constitution, and that the city judge had jurisdiction to hold the preliminary examination.
At the trial, the defendant appeared as a witness in his own behalf, and, after he had testified concerning a portion of his life and the circumstances connected with the perpetration of
Tbe prisoner, waiving bis constitutional privilege, and taking advantage of tbe law wbicb permitted bim to testify in bis own behalf, left for tbe time being bis position as defendant, and assumed that of a witness in tbe case. Having done tbis, be became subject, for tbe time of bis examination, to tbe same rules, and was bound to submit to tbe same tests, which by law apply to other witnesses. Tbis is so under our statute, wbicb in section 5015, Bevised Statutes 1898, provides:
“If a defendant offers himself as a witness be may be cross-examined by tbe counsel for tbe state tbe same as any other witness. His neglect or refusal to be a witness shall not in any manner prejudice bim, nor be used against bim on tbe trial or proceeding.”
Here is a plain provision of statute authorizing in express terms, tbe counsel for tbe State to cross-examine such a defendant “tbe same as any other witness,” if be offers himself as a witness, yet, in tbe face of tbis statute, my Brethren draw a distinction, existing neither in sound reason nor in law within tbis jurisdiction, between a defendant who is a witness and a witness who is not a defendant. As to tbe latter, they admit that“tke right to refuse to answer incriminating questions is a personal privilege of tbe witness which be can either exercise or waive,” while, as to tbe former, they say: “We do not understand tbe authorities to bold that when tbe witness is also tbe defendant in tbe case bis counsel cannot speak for bim and make tbe proper objections and protect bim in bis right and immunity from answering questions on cross-examination respecting tbe commission by bim of other .crimes wbicb are in no way connected with tbe one for which be is on trial.” With due respect for tbe understanding of my learned Brethren thus expressed, I am impelled to say that my examination of tbe authorities upon this subject has led me to an understanding exactly tbe opposite — that tbe author
As to the proposition that a defendant who offers himself as a witness is subject to cross-examination the same as any other witness, Mr* Underhill, in his work on Criminal Evidence (section 60), says:
“In states where the cross-examination of the ac-eaused is not by statute expressly limited to matters brought out on his direct examination, he may be cross-examined, not only upon matters strictly revelant to the issue, but upon those which are collateral and apparently irrelevant, and which are calculated only to test the credibility and weight of his testimony.”
This is supported by numerous authorities cited. And in section 61, Id., the author says:
“He may be questioned as to specific facts calculated to discredit him. Thus his previous arrest or indictment, his conviction of a felony, a previous imprisonment in a penitentiary or house of correction, his prior contradictory statements, disorderly actions, or the commission of offenses similar to that charged, attempts to bribe witnesses, or simulation of insanity, may all.be brought out by questions put to him on his cross-examination, to show what credit his evidence should receive.”
“Is his position as a witness so separable from his position as a defendant that what would be usable to impeach him as a witness, but would not be available against him merely as a defendant, may still be used? In particular, may his bad character be shown, may this character be searched into on cross-examination, may the other tests applicable to witnesses be employed ? The answer, as policy clearly demands,is in the affirmative; for otherwise, if he were a false witness, the customary methods of exposing this would not be available, and the investigation of truth and the punishment of crime .would be defeated. These reasons have led to the general acceptance of the rule that an accused person taking the stand as a witness may be impeached precisely like any other witness, i. e., by reputation as evidence of character, by cross-examination to character, by conviction of crime and the like.”
In People v. Hite, 8 Utah 461, 33 Pac. 254, where the cross-examination took a wide range, Mr. Chief Justice Zane, speaking for the court, said:
“In his cross-examination the prosecuting attorney went still further back, and his inquiry descends still further into particulars. He interrogated the defendant as to transactions evidently for the purpose of testing his recollection and bringing to light conduct that would affect his credibility. It is the duty of the juror to judge of the credibility of thé witness, and to weigh his testimony in the light of his opportunities to know, to understand, and remember, and in view of his motives and his moral worth as evidenced by his conduct, and in view of his character established by his life, as well as by the light of experience and. reason. To enable the juror to judge of the cred*65 ibility of tbe witness, rigid cross-examinations are sometimes necessary, and- mncb latitude 'of inquiry should be permitted. Tbe investigation of truth is sometimes attended with humiliation and disgrace of the witness and appears to be remorseless.”
So in People v. Casey, 72 N. Y. 393, Mr. Justice Earl said:
“Upon the trial the prisoner was a witness in his own behalf, and it is now complained that the counsel for the people, upon cross-examination, was permitted to question him as to other altercations in which he had been engaged, and other assaults which he had committed. The complaint is not well founded. When a prisoner offers himself as a witness in his own behalf, he is subject to the same rules upon cross-examination as any other witness. He may be asked questions disclosing his past life and conduct, and thus impairing his credibility. Such questions may tend to show that he has before been guilty of the same crime as that which he is upon trial, but they are not on that account incompetent. When he offers himself as a witness, and seeks to take the benefit of the statute which authorizes him to testify in his own behalf, he takes the hazard of such questions. He must determine, before he offers himself, whether his examination will benefit or injure him-. The extent to which such an examination may go to test the witness’ credibility is' largely in the discretion of the trial court.”
In Hanoff v. The State, 37 Ohio St. 178, 41 Am. Rep. 496, it was said:
“If error would not lie to a like cross-examination of any other witness qs to his previous conduct, for the purpose of affecting his credibility, we see no reason why it should when a party himself is the witness. The object and importance of a cross-ex-*66 animation of a defendant is tbe same, and therefore the rules governing it should be the same. In matters collateral and irrelevant to the particular charge, it is difficult to define with precision the limits of such cross-examination when the object is to test the credibility of a witness. In this court the question may be regarded as settled that the limits to which a witness may be cross-examined on matters not revelvant to the issue, for the purpose of judging of his character and credit from his own voluntary admissions, rest in the sound discretion of the court trying the cause. Such questions may be allowed where there is reason to believe it will tend to the ends of justice, but they ought to be excluded when a disparaging course of examination seems unjust to the witness and uncalled for by the circumstances of the case.”
Likewise, in People v. Conroy, 153 N. Y. 174, 47 N. E. 258, it was said:
“Defendant’s counsel complain that defendant on cross-examination was asked as to specific immoral acts, and that, although he refused to answer, he was greatly prejudiced. When a defendant takes the witness stand he subjects himself to a searching cross-examination. The district attorney is permitted a very wide range as to the topics of inquiry, and it is a peril a defendant assumes when consenting to become a witness in his own behalf.”
In Wilber v. Flood, 16 Mich. 40, 93 Am. Dec. 203, it was held:
“The cross-examination of a witness is not confined to matters in issue, but may include such collateral questions as will enable the jury to obtain an insight into his character and history, and thus to judge of his credibility; and the court has power to guard against the abuse of this right, when nec-cessary.”
“A party to the cause, wbo yountarily offers himself as a witness, is entitled to no more, and in some respects to less, protection than a third person who testifies in obedience to a summons. A party taking the stand as a witness in his own behalf may be cross-examined in relation to a communication between himself and his counsel, as to which the latter would not be allowed to testify. (Woburn v. Henshaw, 101 Mass. 193, 3 Am. Rep. 333.) And a refusal to answer a question, on the ground that it might incriminate him, is competent evidence against him, when it would not be against an ordinary witness.”
In Territory v. O’Hare, 1 N. D. 30, 44 N. W. 1003, it was said:
“We hold that the right of cross-examination as to outside matters of fact which affect the general character of the witness, and tend to degrade him, and affect his credibility, is, within the limits of a sound judicial discretion, a salutary rule.”
In State v. Witham, 72 Me. 531, it was said:
“When the accused volunteers to testify in his own behalf at all upon the issue whether the alleged crime has been committed or not, he volunteers to testify in full. His oath in such case requires it. If he waives the constitutional privilege at all, he waives it all. He cannot retire under shelter when danger comes. The door opened by him is shut against retreat. The object of all examinations is to elicit the whole truth, and not a part of it. Hnder, our rule, the cross-examination of a witness is not confined to the matters inquired of in chief. A party testifying as his own witness can be examined just as any other witness could be in any re*68 spect material and relevant to the issue. To some extent, more may be elicited from him than from a common witness, because his statements are admissions as well as testimony. Any other construction would render the statute a shield to crime and criminals.”
(1 Greenl. Ev., sec. 444b, 449; Underhill, Crim. Ev., sec. 60-62; Whart. Crim. Ev., secs. 430, 432, 433; Commonwealth v. Smith, 163 Mass. 411, 40 N. E. 189; Wroe v. The State, 20 Ohio St. 460; People v. Clark, 102 N. Y. 735, 8 N. E. 38; People v. Robinson, 86 Mich. 415, 49 N. W. 260; Yankee v. The State, 51 Wis. 464, 8 N. W. 276; People v. Foote, 93 Mich. 38, 52 N. W. 1036; Stalcup v. State, 146 Ind. 270, 45 N. E. 334; The State v. Pfefferle, 36 Kan. 90, 12 Pac. 406; State v. Merriman [S. C.], 13 S. E. 328; People v. Mather, 4 Wend. 229, 21 Am. Dec. 122; Frank v. State, [Wis.], 68 N .W. 657; State v. Ober, 52 N. H. 459, 13 Am. Rep. 88; Mc Keone v. People, 6 Colo. 346; Connors v. People, 50 N. Y. 240; Commonwealth v. Tolliver, 119 Mass. 312; Mitchell v. The State, 94 Ala. 68, 10 South. 518.)
Many other authorities, to the same effect as the foregoing, might.be cited here, but it is not deemed necessary.
It seems almost too clear for argument that under our statute, and the decisions of the courts made under similar statutes, and upon the authority of the text-writers, when the defendant assumed the character of a witness in his own behalf he became subject to cross-examination the same as any ordinary witness, and that the mere fact that he was also defendant conferred upon him no privilege, respecting his answers to criminating or degrading questions, not enjoyed by or applicable to any other witness, there being no statute restricting the right of cross-examination to matters inquired of in the examination in chief. He was not compelled to submit himself as a witness, nor to answer incriminating or degrading questions. Nor did the court coerce him when he claimed his privilege. The answering of such questions in a criminal case is purely a personal privilege of the witness, as here-inbefore stated, and as the authorities, to which reference will
Such a defendant is bound to determine for himself, before he assumes the character of a witness, whether his examination will benefit or injure him. His refusal to become a witness cannot, under the statute, be used to his prejudice. And this is what this court, in line with the great weight of authority, decided in People v. Larsen, 10 Utah 143, 37 Pac. 258, where is was said:
“This immunity from answering degrading or criminative interrogatories or cross-interrogatories is purely a personal privilege of the witness, which he can claim or waive at his pleasure. His counsel can neither claim nor waive it for him. It is a privilege of crime, and he alone can know whether an answer will subject him to punishment. The witness may waive it, and answer, regardless of any objection of counsel. If he declines to answer, that circumstance cannot be permitted to draw an inference of the truth of the fact to which the question relates. When he chooses to become a witness in the case, he leaves his position as defendant, and while he is upon the stand he is subject to the same rules, and must submit to the same tests, which by law are applicable to other witnesses.”
But my Brethren say: “We have been able to find but three cases wrhich go to the extent of holding that, when a defendant takes the witness stand in his own behalf, he, for the time being, in effect, ceases to be a defendant, and forfeits his constitutional right to the assistance of counsel.” They then refer to People v. Larsen, supra, State v. Wentworth, 65 Me. 234, 20 Am. Rep. 688, and State v. Kent, 5 N. D. 516, 67 N. W. 1052, 35 L. R. A. 518, as the three cases. These cases hold, same as many others, as will be seen, that the privilege of exemption from answering degrading or criminative questions upon cross-examination is a privi
Referring to the practice in New York as it once existed, the author, in I G-reenl. Ev., sec. 444b, says:
“It was at one time supposed in New York that the scope of cross-examination to misconduct was narrower for a defendant witness than for others; but this limitation seems no longer to be law in that jurisdiction nor elsewhere.”
This statement of the learned author is entirely justified by the decisions from that State anterior and subsequent to the case of People v. Brown, relied upon by my associates in this case. In fact, no decision has come to my attention, from that state or any other, which, as to this precise question, has followed People v. Brown, except the one herein. Notwithstanding the high regard which is due the decisions of the eminent jurist who delivered that opinion, the doctrine announced therein does not appear to be supported by the decisions of his own State, nor elsewhere. The doctrine is based upon the assumption that there is a distinction between an ordinary
In People v. Tice, 131 N. Y. 651, 30 N. E. 494, 15 L. R. A. 669, it was said:
“The differences in the decisions in different states are attributable in part to a difference in the language of the statutes. Some of the statutes in terms limit the cross-examination to matters referred to in the examination in chief. In neither of the two classes of decisions is there, we apprehend, any invasion of the constitutional provision referred to. The accused is not compelled to become a witness. When he avails himself of the privilege conferred by statute, he subjects himself voluntarily to the situation of any other witness, and if he is compelled to answer disparaging questions, or to give evidence relevant to the issue which is injurious, it is the consequence of an election which he makes to become a witness, which involves a waiver on his part at that time of the constitutional exemption. If he accepts the privilege given by the statute, he takes it with its attendant dangers. ‘His own act is the primary cause, and, if that is voluntary, he has no reason to complain.’ (Church, Ch. J., in Connors v. People, 50 N. Y. 240.) The principle that an accused person who becomes a witness in his own be-*72 balf thereby places himself in the attitude of any other witness in respect to the right of cross-examination has been announced in many cases in this court. (Brandon v. People, 42 N. Y. 265; Connors v. People, supra; Stover v. People 56 N. Y. 315; People v. Casey, 72 N. Y. 394.) The same rale has been declared in the courts of Massachusetts, Maine, New Hampshire, and other states, under statutes similar to the statute of this State. (Com. v. Mullen, 97 Mass. 545; State v. Witham, 72 Me. 531; State v. Oder, 52 N. H. 459, 13 Am. Rep. 88.)”
In this same case, page 657 of 131 N. Y., page 496 of 30 N. E. (15 L. R. A. 669), it was also said:
“The statute permits the accused to be a witness. This must mean a witness generally in the cause, and not that he may be a witness as to such matters only as to which he may choose to testify. This being the construction put by our courts upon the statute, there is no constitutional right infringed if the accused, having elected to take the stand as a witness, is subjected to the ordinary rules of examination. 'The range and extent of the cross-examination is within the discretion of the trial judge, provided only that it relates to relevant matters, or to matters affecting credibility. The trial judge may properly restrict the cross-examination of accused persons within narrower limits than in ordinary cases, but the latitude allowed is a matter for the trial judge.’ ”
So, in People v. Webster, 139 N. Y. 73, 34 N. E. 730, it was said:
“It is now an elementary rule that a witness may be specially interrogated upon cross-examination in regard to any vicious or criminal act of his life, and may be compelled to answer unless he claims his*73 privilege. A party wbo offers himself as a witness in a criminal cause is not exempt from tbe operation of tbe rule. He is not compelled to testify, and, if not examined, tbe law provides that it' shall not give rise to any presumption against bim. When be elects to become a witness, it is for all tbe purposes for wbieb a witness may be lawfully examined in tbe case, and be is not, in tbe constitutional sense, ‘compelled to be a witness against bimself,’ although, wben subjected to tbe test of a legitimate cross-examination, be may be required to make disclosures which tend to discredit or to incriminate him.” (People v. Conroy, 153 N. Y. 174, 187, 47 N. E. 258.)
Other New York cases are to tbe same effect. Text-writers and decisions from other states, under similar constitutional and statutory provisions, also show that such a privilege is personal, whether tbe witness is tbe defendant or not.
In Greenl. Ev., section 469d, tbe author says:
“Tbe making of tbe claim, and its determination, being intended solely for tbe witness’ sake, tbe privilege is bis own, and not that of the party; counsel, therefore, will not be allowed to make tbe objection, nor, if tbe court erroneously disregards tbe privilege, may tbe party complain of tbe error.”
In Wbart. Crim. Ev., sec. 465, it is said:
“The privilege just stated cannot be interposed by a party to tbe issue. It must be claimed by tbe witness in order to be available.”
In Roscoe’s Crim. Ev., p. 233, after a review of authorities, it was said:
“It will thus be seen that in all cases where tbe point has directly arisen, it has been held that tbe bare oath of tbe witness that be is endangered by being compelled to answer is not to be considered as necessarily sufficient, but that tbe judge is to use*74 bis discretion, whether he will grant the privilege or not. Of course, the witness must always pledge his oath that he will incur risk; and there are innumerable cases in which a judge would be properly satisfied, without further inquiry, but, if he is not Satisfied, he is not precluded from further investigation.”
In State v. Kent, 5 N. D. 516, 541, 556, 67 N. W. 1052, 1058, 1063, 35 L. R. A. 518, a well-considered case, in which the New York case is commented upon, it was said:
“It is also well established that, when a defendant in a criminal case voluntarily takes the witness stand in his own behalf, he thereby subjects himself to the same rules of cross-examination that govern other witnesses, with the exception that his privileges are to some extent curtailed, in that he is not only required to answer any relevant and proper question that "may tend to convict him of any collateral offense, when such answer also tends to convict him of the offense for which he is being tried, or bears upon the issues involved in such case. . . . The claim of privilege, when made by counsel alone, even when, as in this case, counsel says, The privilege is claimed by both counsel and the defendant/ is not, and cannot be, supported by the oath of the witness. This, as we have seen, is demanded both by authority and reason, and we can conceive of no sufficient ground to support an exception in favor of a party. (State v. Wentworth, 65 Me. 234, 20 Am. Rep. 688.) No doubt, counsel have the right, in protecting their clients, to raise the point, and call the attention of the court to the matter, and demand that the witness be apprised of his rights, and given an opportunity to make the claim under oath, if he so elect. We think this would be the proper method of raising the point in these cases. Of course, the witness might do it without the intervention of*75 counsel. A refusal of the trial court to properly instruct a witness when thus requested by his counsel might constitute reversible error. We hold, then, that the claim of privilege, by reason of the crim-inating nature of the answer sought, was not made with sufficient definiteness to apprise the court of the nature of the claimand, further, that the claim cannot be made by counsel, even when the witness is also a party.”
In Samuel v. The People, 164 Ill. 379, 45 N. E. 728, it was said:
“The privilege is that of the witness, and not of the party, and counsel will not be allowed to make the objection. The privilege cannot be interposed by either party to the action, nor can either party raise the objection on behalf of the witness. It must be claimed by the witness in order to be available, and it lies with him to claim it or not, as he may choose. ■ As the privilege is personal to the witness, he may waive it and elect to testify.”
In State v. Wentworth, 65 Me. 234, 20 Am. Hep. 688, Mr. Chief Justice Appleton said:
“The defendant, going upon the stand as a ‘com petent witness,’ was inquired about as to certain sales made by him prior to the one charged in the complaint, to which he made answers admitting prior sales by himself. The witness interposed no objection to answering the question because the answer might be self-criminative, but the objection was taken by the counsel for the defendant and by him alone. Now, if there is anything well settled, it is that the privilege of exemption from answering interrogatories, which, being ánswered truly, would disclose the guilt of the person interrogated, is the privilege of the witness alone. It is granted because of crime and for its impunity, lest, by means of and*76 in consequence of the proof furnished by the answer, the witness may hereafter be subjected to the punishment which the law has fixed to his criminal misconduct. It is the privilege of crime. The interests of justice would be little promoted by its enlargement. 'The privilege/ observes Nelson, C. J., in Cloyes v. Thayer, 3 Hill 564, ‘belongs exclusively to the witness, who may take the advantage of it, or not, at his pleasure. . . . The witness may waive it and testify, in spite of any objection coming from the party or his counsel.’ In Ward v. The People, 6 Hill 144, the court held that the public prosecutor has no right, in the trial of an indictment, to object that a question put to one of the witnesses called for an answer tending to expose him to criminal punishment; this being an objection which the witness alone is authorized to make. So, in State v. Foster, 3 Fost. 348, 55 Am. Dec. 191, it was to lay with the witness to claim the privilege or not, as he may choose. It is obvious that if the defendant is to be regarded, when testifying, only as a ‘competent witness/ which is what the statute makes him, ‘at his own request and not otherwise/ that the exemption from answering criminative cross-interrogation is personal, and the witntess alone can claim it.”
So, in Brandon v. The People, 42 N. Y. 265, where the question, “Have you ever been arrested for theft?” was put to the defendant witness on cross-examination and objected to by the defendant’s counsel, but the privilege not claimed by the witness, it was said:
“The question complained of was put to the witness for the purpose of impairing her credibility as a witness. It has been the practice of the courts of this State from a very early period to permit questions of this character to be put to the witness, and for the purpose indicated. Its abuse is guarded*77 against in two modes: (1) By the privilege of the witness to decline to answer any question which may disgrace him, or may tend to charge him as a criminal. (2) By the power of the court, of its own motion, to prohibit an unreasonable or oppressive cross-examination. . . . She was not compelled to take this position, the statute declaring that the failure to testify should not create a _ presumption against her. She elected, however, to make herself a witness. She became and was a competent witness. For this purpose, she left her position as a defendant, and while upon the stand was subject to the same rules, and called upon to submit to the same tests, which could by law be applied to other witnesses. Her statements were made to the jury under the solemnity of an oath. In theory of law, this gave greater weight to her narration than if she had placed her simple declaration before the jury, unaccompanied by her oath. She cannot claim the advantages of the position of a witness and at the same time avoid its duties and responsibilities. If one so testifying should testify to a willful falsehood on a material point, I cannot doubt that the offense would be perjury. The character of party in the same cause would afford no defense to such an accusation.”
Likewise, in Morgan v. Halberstadt, 60 Fed. 592, 9 C. C. A. 147, it was said:
“It is a sufficient answer to the contention of plaintiff in error to refer to the well-settled principle that such privilege belongs exclusively to the witness. The party to the suit has no right to insist upon it, except when he-is himself a witness. And if the witness waives his privilege, or the court disregards it and requires him to answer, the party has no right to interfere or complain of the error.”
In the Burr trial (1 Burr’s Trial, 244), on the question
“If the question be of such a description that an answer to it may or may not criminate the witness, according to the purport of that answer, it must rest with himself, who alone can tell what it would be, to answer the question or not. If, in such a case, he says upon his oath that the answer would criminate himself, the court can demand no other testimony of the fact.”
(1 Roscoe’s Crim. Ev., 323 et seq.; 3 Rice on Ev., pp. 296-314; Whart. Crim. Ev., sec. 473; 1 Greenl. Ev., sec. 469d; People v. Larsen, 10 Utah 143, 37 Pac. 258; Commonwealth v. Shaw, 4 Cush. 594, 50 Am. Dec. 813; Ingersol v. McWillie, 87 Tex, 647, 30 S. W. 869; State v. Butler, 47 S. C. 25, 24 S. E. 991; Roddy v. Finnegan, 43 Md. 490; Clark v. Reese, 35 Cal. 89; Floyd v. The State, 7 Tex. 215; Kirshner v. The State, 9 Wis. 140; Thomas v. The State, 103 Ind. 419, 2 N. E. 808; Treat v. Browning, 4 Conn. 408, 10 Am. Dec. 156; White v. The State, 52 Miss, 216; Lothrop v. Roberts, 16 Colo. 250, 27 Pac. 698; State v. Cohn, 9 Nev. 179; State v. Foster, 3 Fost. 348, 55 Am. Dec. 191.)
The same doctrine exists in England.
In 2 Taylor, Ev., section 1465, it is said:
“In all the cases hitherto put, where the witness is not compellable to answer or to produce documents, the privilege is his, and not that of the party; and, consequently, counsel in the cause will not be permitted to make the objection. Neither will the witness be allowed to employ counsel of his own to support his claim to protection. Nor even is the judge bound, as it would seem, to warn the witness of his right to demur to the question, though, in the exercise of his discretion, he may occasionally deem it proper to do so.”
“It will thus be seen that, in all cases where the point has directly arisen, it has been held that the bare oath of the witness that he is endangered by being compelled to answer- is not to be considered as necessarily sufficient, but that the judge is to use his discretion whether he will grant the privilege or not. Of course, the witness must always pledge his oath that he will incur risk, and there are innumerable cases in which a judge would be properly satisfied with this -without further inquiry; but if he is not satisfied he is not precluded from further investigation.”
In Paxton v. Douglas, 16 Ves. 239, the Lord Chancellor said:
“My opinion at present is that the objection is not to putting the question, but to answering it when put; that the witness is before the master precisely in the situation of a witness called to give.his evidence personally, and the objection is not to the question, but to answering it. I therefore think, at present, that the interrogatories must be put to the witness, and it must be left to himself whether he will answer them or not.”
So, in East v. Chapman, 1 M. & M. 46, it was said:
“The counsel in a cause have no right to object, in favor of a witness, that the answer to a particular question renders him liable to punishment or forfeiture. Such objection belongs to the witness only.”
(2 Taylor, Ev., secs. 1465-1467; 1 Roscoe’s Crim. Ev., 232-234; Thomas v. Newton, 1 M. & M. 244; Fisher v. Reynolds, 12 C. B. 761; Adams v. Lloyd, 3 Hurlst. & Nor. 351; Parkhurst v. Lowton, 2 Swanst. 194.)
Ais to the question about having deserted the army, the record fails to show that the witness claimed his privilege, and
The appellant insists that abandonment of the felonious design was the controlling question in the case, and constituted one of fact for the jury. The respondent contends that it appears from the defendant’s own testimony that all his actions
The case, as has been seen, was tried by the defense on the theory of self-defense, the defendant claiming that the killing was done to save his own life, in an assault made upon him hy the deceased persons after the defendant’s iniquitous attempt to commit robbery had been voluntarily abandoned, in good faith, to the knowledge of all the parties to the affray. The defense elicited testimony from its witnesses, including the defendant, which it is claimed tended to establish an abandonment and retreat, and, after the evidence was all admitted, it was for the jury to find the facts, and the court could only consider them, as claimed, for the application of the law to them contingently, if found. This is certainly true where the facts are not admitted, and where, as here, the truth of the testimony is seriously doubted. Therefore,
“Where evidence is offered by either party to prove a certain state of the facts, and the claim is made that they are proved, and the court is requested to charge the jury that the law is as applicable to them, and what verdict to render if they find them proved, the court must comply.” (Mor*84 ris v. Plalt, 32 Conn. 75; 11 Ency. Pl. and Pr., 213, 214.)
Weakness of tbe evidence is no ground for refusal to charge upon it. If there is any evidence, however slight, which supports the hypothesis upon which the request to charge is based, the request, or an instruction on the court’s own motion, should be given. (11 Ency. Pl. & Pr. 215-217; Riedle v. Mulhausen, 20 Ill. App. 68; Chapman v. McCormick, 86 N. Y. 479; Muldowney v. The III. Cent. R. R. Co., 32 Iowa 176; Levy v. Gray, 56 Miss. 318; County of Cook v. Harms, 108 Ill. 151; State v. Levigne, 17 Nev. 435, 30 Pac. 1084; Davis v. Russell, 52 Cal. 611, 28 Am. Rep. 647; People v. Taylor, 36 Cal. 255.)
Although the prisoner shows, by his own evidence, that he is guilty of an attempt to perpetrate a heinous offense, for which, in any event, he is liable to punishment, and while under the law the assailed would have been justified in killing him in his attempt, if necessary to prevent him from accomplishing his criminal purpose, still, if, before completion, he in good faith abandoned his evil design, and his abandonment and retreat were made so obvious by his acts and the circumstances as to clearly advise the assailed that they were no longer in danger of having the attempt renewed, then if thereafter the assailed, not atempting to effect an arrest, made such a fierce attack as to induce in him a well-grounded belief that they intended to kill him, he had a right to use such force as was necessary to save his own life, even to the extent of killing his assailants; and if the jury should find that, at the time of the homicide, such circumstances actually existed, then the prisoner would not be guilty of murder in the first degree, notwithstanding his original criminal assault.
That the plea of self-defense, or of necessity, may become a shield, even to an original assailant, was announced by Lord Hale, and is doubtless the doctrine of modem authority. Lord Hale said:
“Suppose that A. by malice makes a sudden assault upon B., who strikes again, and, pursuing*85 bard upon A., A. retreats to tbe wall, and in saving bis own life kills B.; some bave beld tbis to be murder, and not se defendendoJ because A. gave tbe first assault. But Mr. Dalton tbinketb it to be se defen-dendo, tbougb A. made tbe first assault, either witb or without malice, and then retreated. It seems to me if A. did retreat to tbe wall upon a real intent to save bis own life, and then merely in bis own defense billed B., that it is se defendendo. But if, on tbe other side, A., knowing bis advantage of strength, or skill, or weapon, retreated to tbe wall merely as a design to protect himself under shelter of tbe law, as in bis own behalf, but really intending to kill B., then it is murder or.manslaughter, as tbe circumstances of tbe case require.” (1 Hale’s P. C., 479, 480.)
Speaking of tbis species of homicide, Sir William Blackstone says:
“If tbe slayer has not begun tbe fight, or (having begun) endeavors to decline any further struggle, and afterwards, being closely pressed by bis antagonist, kills him to avoid bis own destruction, tbis is homicide excusable by self-defense. Bor which reason tbe law requires that tbe person who kills another in bis own defense should bave retreated as far as be conveniently or safely can, to avoid tbe violence of tbe assault, before be turns upon bis assailant ; and that not factitiously, or in order to watch bis opportunity, but from a real tenderness of shedding his brother’s blood.” (4 Bl. Com., 134.)
In 1 McClain, Grim. Law, section 310, it is said:
“One who voluntarily enters into a combat or is tbe original aggressor cannot excuse a subsequent homicide, committed in consequence thereof, on tbe ground of self-defense, it being bis duty to withdraw; but there must be allowed room for repent*86 anee 'and abandonment, and if the defendant, though originally in the wrong, does thus abandon his purpose, he may afterwards exercise the right of self-defense. The withdrawal, however, must be in good faith. If the original assailant merely ceases to advance for the purpose of-watching his opponents movements, and without attempting to avoid the encounter, he will not be excused for what he afterwards does on the ground of self-de fense.”
Mr. Bishop, in his work on Criminal Law, after an able examination of this subject, and, as appears, agreeing with the opinion of Lord Hale, states his conclusion thus:
“This space for repentance is always open. And where a combatant in good faith withdraws as far as he can, really intending to abandon the conflict, and not merely to gain fresh strength or some new advantage for an attack, but the other will pursue him, then, if taking life becomes inevitable to save life, he is justified.” (1 Bish. Grim. Law, sec. 871.)
In Stoffer v. State, 15 Ohio St. 47, 86 Am. Dec. 470, where the defendant was originally in the wrong, having made an assault upon one Webb with intent to murder him, but then desisted from the conflict, declined further combat, and retreated, whereupon Webb and another pursued him, and in the conflict which immediately ensued the defendant killed Webb, Mr. Justice Banney, speaking of a defendant in such a case, said:
“While he remains in the conflict, to whatever extremity he may be reduced, he cannot be excused for taking the life of his antagonist to save his own. In such case it may rightfully and truthfully be said that he brought the necessity upon himself by his own criminal conduct. But when he has succeeded in wholly withdrawing himself from the contest, and that so palpably as at the same time to*87 manifest bis own good faith and to remove any just apprehension from his adversary, he is again remitted to his right of self-defense, and may make it effectual by opposing force to force, and, when all other means have failed, may legally act upon the instinct of self-preservation, and save his own life by sacrificing the life of one who' persists in endangering it.”
So in People v. Wong Ah Teak, 63 Cal 544, Mr. Justice Sharpstein said:
“A person who has sought a combat for the purpose of taking advantage of another may afterwards endeavor to decline any further struggle, and, if he really and in good faith does so before killing the person with whom he sought such combat for such purpose, he may justify the killing on the same grounds as he might if he had not originally sought such combat for such purpose.”
Nor is, in such cases, where the defendant makes the first assault, the right of self-defense limited to cases where there are two or more assaults in the affray.
In People v. Button, 106 Cal. 628, 39 Pac. 1073, 28 L. R. A. 591, 46 Am. St. Rep. 259, the defendant had assaulted the deceased in the first instance, and the trial court instructed the jury, among other things, that if they found from the evidence
“that after the first assault had ceased, and there had an interval elapsed between said first assault and the final assault, making said assaults respectively, although in some degree related to each other, yet substantially distinct transactions, each attended with its own separate circumstances, the deceased procured his gun and made such an attempt to shoot defendant as gave the defendant reasonable ground to apprehend and fear that the deceased was about to take his life, and that, acting under*88 such reasonable apprehension alone, the defendant shot the deceased, then you will acquit the defendant.”
The Supreme Court of California, holding such charge erroneous, said:
“It deprived the defendant of the right to go before the jury upon the plea of self-defense, if there was but one assault which led up to the homicide. The right of the defendant to act in self-defense was in no way dependent upon the commission of two assaults. If there was but one assault which caused the combat, and was made by the .defendant, still he had the right of self-defense if .his subsequent conduct was such as to indicate -to the assaulted party that he had withdrawn in good faith from the struggle. The effect of the modification was to plainly intimate to the jury that, if the whole affray was but one connected quarrel or altercation, then the defendant, under no possible set'.of cireum-stances, could be justified in law in killing'his adversary. This is wrong. As to the true solution of the question by the jury which the court was then discussing, it was entirely immaterial whether or not there was one or two assaults.”
(1 Whart. Crim. Law, sec. 486; 1 Bish. Crim. Law, secs. 811-874; 25 Am. and Eng. Ency. Law, 270-271; People v. Button, 106 Cal. 628, 39 Pac. 1073, 28 L. R. A. 591, 46 Am. St. Rep. 259; State v. Rogers, 18 Kan. 78, 26 Am. Rep. 754; Parker v. State, 88 Ala. 4, 7 South. 98; State v. Smith, 10 Nev. 106; State v. Cable, 117 Mo. 380, 22 S. W. 953; People v. Robertson, 67 Cal. 646, 8 Pac. 600; State v. Edwards, 112 N. C. 901, 17 S. E. 521.)
It seems that the trial court recognized the fact that the question of abandonment by the defendant of his intent to rob exists in the case, for after defining robbery, and stating the law relating to the right of the person against whom an attempt to rob is made to arrest the robber and prevent his
I am of the opinion that the questions of abandonment in good faith by the prisoner of his original felonious purpose, and of retreat, ought to have been properly submitted to the jury, and that, under the evidence contained in the record, the court had no right to refuse to submit to the jury the very theory, and the only one, upon which the defense was conducted. Upon this ground only I concur in reversing the judgment.