The objection most relied on relates to the exclusion of the evidence of Bennett. At the beginning of the trial, the presiding judge had passed an order, at the defendant’s request, excluding the witnesses on both sides from the court room. There was no exception in favor of Bennett, or of any class of witnesses; and Bennett did not withdraw, but remained in court, taking notes of the testimony as an assistant to the defendant’s counsel. He had also taken notes at a former trial of this case; and he was now called as a witness for the purpose of contradicting a witness for the government, by testifying that the latter’s testimony on material points at the former trial had been different from that given on the present trial.
The defendant’s counsel stated to the court that, when the witnesses were excluded from the court room, he did not know that it would be necessary to call Bennett, and that he had excluded all the witnesses at the time of the beginning of the *128trial that he intended to call, and did not then know that he would be obliged to call any witnesses for the purpose of rebutting the testimony of a government witness.
The bill of exceptions, however, goes on to recite that the trial lasted for two and one half days, the larger part of which was occupied by the government in putting in its case; that several of the government witnesses were inquired of by the defendant’s counsel if they had not testified at the previous trial differently from what they testified at this; and that the counsel when putting these questions apparently read from notes of the previous trial, stating especially in each question facts at variance with those last testified to. From this recital we infer that the court thought that the defendant’s counsel was in fault, after having procured the order of exclusion of the witnesses, in not causing Bennett to withdraw during the progress of the trial, and as soon as the idea occurred to him of contradicting any of the government witnesses by calling Bennett with his notes of their former testimony. Although in fact Bennett was only offered to contradict a single witness, the cross-examination of several of the government witnesses indicated that the counsel might have it in mind to cáll him as to their testimony also. The facts recited in the bill of exceptions warranted the judge in thinking the defendant’s counsel was in fault, and therefore the question of law which is presented for our determination is whether on this assumption he might lawfully exclude Bennett’s testimony. We are not called upon to determine what the rule should be in a case where the party himself and his counsel are free from fault.
Under the circumstances stated, we are of opinion that it was within the discretion of the court to exclude the testimony. In Solder v. United States, 150 U. S. 91, it is said, “ The right to exclude under particular circumstances may be supported as within the sound discretion of the trial court.” This right, where the party or his counsel has been in fault, is directly or by implication supported by various decisions, and sanctioned by text writers. State v. Gresell, 124 Mo. 531. O'Bryan v. Allen, 95 Mo. 68, 75. Dyer v. Morris, 4 Mo. 214. State v. Thomas, 111 Ind. 515. Burk v. Andis, 98 Ind. 59, 64. Davis v. Byrd, 94 Ind. 525. Jackson v. State, 14 Ind. 327. Bird v. State, 50 *129Ga. 585. Hey v. Commonwealth, 32 Grat. 946, 949. Hubbard v. Hubbard, 7 Oregon, 42. 1 Bish. Crim. Proc.. § 1191. Whart. Crim. Ev. § 446.
The defendant’s request for instructions as to the right of one who is attacked to pursue his adversary was rightly refused. There was no testimony in the case which tended to show that the defendant pursued his adversary after being attacked. On the other hand, his own testimony was explicit to the contrary. His account of the fatal occurrence was as follows: “ As I was getting up, the man got his arm around my neck, and commenced to hit me in the face ; I could not do anything to save myself; I had no chance to get away from him; I was stooping down, with his arm around my neck, and he commenced to hit me in the face, split my lip, and choked me, and took away my breath. My wind was right out of me; I could not stand it a second longer. I had this knife in my hand, and I raised it up, when I felt his hold get loose of me. I did n’t intend to kill him, — I did n’t know that I had killed him.” The instructions asked for were not applicable to the case in hand, and were rightly refused. Drake v. Curtis, 1 Cush. 395, 414. Coker v. Ropes, 125 Mass. 577. Salomon v. Hathaway, 126 Mass. 482. Pratt v. Amherst, 140 Mass. 167.
The defendant contends that the argument of the district attorney to the jury was objectionable in saying that “ the defendant upon these facts might well have been indicted for the crime of murder.” The indictment was for manslaughter. There was no statement by the district attorney of any fact not in evidence, and no misstatement of the evidence. The defendant’s objection rests on the ground that this argument was a charge of an offence for which he was not on trial. But we see no legal error in allowing the district attorney to urge that the facts in evidence showed a homicide of a higher grade than that for which the defendant was indicted. Nor can we say that this view of the facts was not warranted by the evidence.
The points urged in support of the motion in arrest of judgment are covered by the recent decision in Commonwealth v. Brown, 167 Mass. 144.
• ¡Exceptions overruled.