I dissent. I concur with much that is said in the opinion of Mr. Justice WADE, but after skillfully driving the car around several dangerous curves, the driver, in an effort to dodge a chicken in the road, seems to lose control of the *Page 323 car and is thrown into the barrow pit. I concur in holding that where defendants are tried jointly, their peremptory challenges of prospective jurors allowed by Sec. 105-31-15, U.C.A. 1943, must be exercised collectively. The additional challenges allowed by Section 105-31-2, U.C.A. 1943, to each defendant tried jointly, are to enable one such defendant to excuse a prospective juror as to whom a co-defendant does not join in challenging. This allows the defendants tried jointly more challenges in comparison to those allowed the state than if they were tried separately.
I agree it was not error to admit in evidence the testimony relative to the conduct of defendants in attempting to elude capture after their escape from prison. I subscribe to the pronouncement that the definition of malice in Instruction 9 was an erroneous definition of malice as the term is used in Sec. 103-7-12, U.C.A. 1943; and agree that "malice" as there used has the same meaning as the malice involved in the term "murder" as defined in State v. Russell, 106 Utah 116, 145 P.2d 1003. Although Instruction 9 was somewhat confusing and erroneous, and should not have been given, it was not of such prejudicial nature as to disturb the judgment. Instructions 15, 16 and 17 were such as to make it unreasonable to believe the jury could have been misled by such an abstract statement of law as Instruction 9.
The prevailing opinion holds it was error to admit in evidence the testimony of Lote Kinney quoting statements made to him by Standard a year before the offense, as to his occupation. I am unable to determine from the opinion if such constitutes reversible error or whether the discussion is merely cautionary in view of a new trial being ordered. If it is to be assumed as holding this admission of evidence necessitates a reversal of the judgment, from such conclusion, I dissent. I am not prepared to say it was error at all. Justification for this evidence need not rest upon the theory that defendant had put his general character and reputation in evidence by testifying that he had been in the navy and that he had worked in a glass factory. The defendant made himself a witness, and as such he was subject *Page 324 to cross-examination the same as any other witness. State v.Vance, 38 Utah 1, 110 P. 434; State v. Hougensen, 91 Utah 351,64 P.2d 229; State v. Turner, 95 Utah 129, 79 P.2d 46. On cross-examination, he was asked if a year earlier he had not stated to Lote Kinney that his occupation was "hoistman, gambler, burglar, bunco and all those things." That such question on cross-examination is not objectionable and permitting it not error is recognized by almost all the authorities. State v.Hougensen, supra. The only objection that could be urged is that it is collateral matter and irrelevant, an objection which does not lie to cross-examination. The rule is generally stated that one may cross-examine on collateral matters, but the witness is not subject to impeachment. Williams v. State,62 Okla. Crim. 394, 71 P.2d 781; State v. Johnson, 192 Wash. 467,73 P.2d 1342; People v. Pollack, 31 Cal. App. 2d 747,89 P.2d 128; People v. Burness, 53 Cal. App. 2d 214, 127 P.2d 623. This, however, is not exactly a correct statement of the rule. The scope of cross-examination on collateral matters is within the discretion of the trial court, and its rulings thereon will not be disturbed if within a reasonable discretion. So, too, impeachment of a witness for such statements made on cross-examination is a matter on which the trial court should be permitted reasonable latitude. If the situation or the statement is such as might be of value in determining the credibility of the witness, it should be permitted. It is excluded only when the court can say it is so far collateral, or so irrelevant that its tendency to distract the mind of the jury from the real issue would be greater than the value of the evidence as an element in determining credibility. The evidence here involved is not evidence of other crimes nor is it evidence of reputation, sometimes called character evidence in the decisions. It is defendant's own statement which reflects his state of mind and method of speech at serious moments. It may imply a loose habit of expression, a braggadocio attitude, a lack of careful intelligent response, which may be of moment in considering the reliability and weight of his testimony. It is not what other people say or *Page 325 think of him. It is his own characterization of himself, or a devil may care boastful way of talking on serious questions that may affect his credibility much more than it might mislead the jury as to the issue. As to what purpose it could serve and what effect it might have is a matter the trial court could better determine than this court. I am inclined to think its admission is not error. Certainly it was not of such nature as to require a reversal of the judgment. See Schooley v. State,176 Ark. 895, 2 S.W.2d 67; People v. Arnold, 199 Cal. 471, 250 P. 168;People v. Baxter, 245 Mich. 229, 222 N.W. 149; People v.Goodwin, 105 Cal. App. 122, 286 P. 1087; Hall v. UnitedStates, 8 Cir., 277 F. 19; Fuller v. State, 21 Ala. App. 300,107 So. 731; Mullins v. Commonwealth, 246 Ky. 748,56 S.W.2d 370; State v. Tyler, 220 Mo. App. 317, 286 S.W. 408.
Section 103-7-12, U.C.A. 1943, under which defendants were prosecuted, reads:
"Every convict undergoing a life sentence in the state prison, who, with malice aforethought, commits an assault upon any other convict, or upon the warden or any guard or upon any other person whomsoever, with a deadly weapon or instrument of any kind, or by means of force, or by administering any poisonous or deleterious substance which will likely produce great bodily injury, is punishable with death."
The prevailing opinion reaches the conclusion that this section applies only to persons who are serving a definite life term in prison, and does not apply to persons who under the indeterminate sentence law, may not be required to serve a life term. This conclusion, I understand, is arrived at largely upon the ground that it is deemed desirable to limit the number of convicts who are subject to the section. The court should remember its own pronouncements in prior cases, that it is the duty of the court to apply the substantive law as it is written. It is not our right to absorb the legislative function and write new provisions and meanings into the law because we may find the legislative pronouncement not in harmony with our penalogical wisdom. This section *Page 326 was first enacted in 1909, as Chapter 10, Laws of Utah 1909, p. 8. As stated in the prevailing opinion, this was four years before the enactment of the indeterminate sentence law, and when passed "a life sentence" clearly meant a sentence of incarceration for life. That is to say that unless the judgment and sentence of the trial court was reversed on appeal, or unless a writ of habeas corpus from a proper court released the prisoner, or unless executive clemency was extended by the Governor or the Board of Pardons, the warden was required to keep the prisoner confined in prison until death. Sec. 105-36-20, U.C.A. 1943. At that time a life sentence could be imposed for murder in the first degree; murder in the second degree and rape. In 1911, robbery was added as an offense for which a life sentence could be imposed. In 1933, kidnapping was made an offense for which a life term might be exacted. These are the only offenses since statehood for which one could be required to undergo a life sentence.
In 1913 the Legislature enacted what we call the indeterminate sentence law, now Section 105-36-20, U.C.A. 1943, which by express provisions declares that indeterminate sentences are definite sentences for the maximum period. Lee Lim v. Davis,75 Utah 245, 284 P. 323, 76 A.L.R. 460; State v. Roberts,91 Utah 117, 63 P.2d 584; Walsh v. State, 106 Utah 22,144 P.2d 757; Thompson v. Harris (Demmick v. Harris), 106 Utah 32,144 P.2d 761; Cardisco v. Davis, 91 Utah 323, 64 P.2d 216;Lee Lim v. Davis, 75 Utah 245, 284 P. 323, 76 A.L.R. 460;People v. McNabb, 3 Cal. 2d 441, 45 P.2d 334. The sentences imposed now are for a definite term just as much as were those imposed prior to enactment of section 105-36-20. The so called indeterminate sentence law does not in any way affect the period of incarceration fixed by the sentence. It merely provided for a parole system whereby the Board of Pardons may put prisoners on parole outside the prison and may also terminate or commute the sentence or pardon the prisoner.
The legislature when it first enacted Sec. 103-7-12, under *Page 327 which this action is brought, also enacted what is now Sec. 103-7-11, U.C.A. 1943. That section provides that:
"any convict sentenced to imprisonment in the state prison for a term less than life, who commits an assault * * * shall be punished by imprisonment in the state prison for not less than three nor more than twenty years."
The legislature thus clearly distinguished between convicts sentenced to a term less than life and convicts undergoing a life sentence. Put in another way, it put in one class those convicts doing time for the more heinous offenses — offenses that shock the social conscience; into another class it put offenses that involve property and the violation of personal rights of less serious consequences. These statutes were enacted with the purpose of safeguarding the lives of the officials, guards, and others at the prison, and maintaining a disciplinary control over the inmates that would prevent assaults and riots within the prison. The legislature may well have done, and probably did reason, that a convict who was under sentence which could keep him imprisoned for life unless the Board of Pardons intervened, would be more likely to commit assaults with deadly weapons in efforts to escape or otherwise, since no further incarceration could be imposed upon him, than would a prisoner whose confinement could be lengthened twenty years, which to many might be tantamount to a life sentence and thus a deterrent to an assault. Then again, I think it clear that the legislature had in mind that a person who had committed a crime of such nature as to fall within the category for which the legislature had prescribed a penalty of life imprisonment is a person who must walk a chalk line or meet the most drastic exaction of the law. The prevailing opinion has implicit in its rationale the idea that when the legislature prescribed a sentence of life imprisonment for an offense it did not mean that such offense was to be considered more serious than one for which a ten year penalty is prescribed. It seems clear to me that what the legislature meant was to say to persons who committed the few serious crimes for which a life *Page 328 sentence is imposed: "Within this prison you must be on your best behavior. We want no further violence from you. You have already forfeited your liberty. For any further serious violence on your part, you will pay with your life. We are not risking the lives of others for the life of such as you."
Since the section here involved was enacted in 1909, and the so-called indeterminate sentence law in 1913, the legislature has met fifteen times, and have not seen fit to make changes in either. Furthermore, in 1933, the legislature at the same time re-enacted both sections. And since they are in harmony, sound in reason, and logical in action, I can see no reason why we should take out of them what the legislature put in, or read into them what the legislative assembly left out. To do so is to invite assaults, disorder and difficulties in discipline, and increase the danger to the employees at the prison. I see no sound way of escaping from the conclusion that a convict serving a sentence under which he can be kept in prison for life is "undergoing a life sentence" and subject to the death penalty for violation of section 103-7-12, U.C.A. 1943.
Because I think the opinion of my associates in error on these two points, I dissent. I think the judgment should be affirmed.
MOFFAT, J., participated in the hearing but died before the publication of the opinion. *Page 329