OPINION OP THE COURT.
M'cPIE, J.1 The first assignment is that the court erred in refusing to grant the appellant a change of venue. A motion for change of venue was made by counsel for the appellant in the court below, supported by an affi davit of the appellant, setting up substantially that the appellant could not have a fair trial, because of the prejudice of the inhabitants of the county of San Migual against him, and for that reason a fair and impartial jury could not be obtained in the county of San Miguel, and -that the same objection existed as to- the counties of Mora and Guadalupe. This affidavit was supported by two citizens of San Miguel county, Amador Ulibarri and Guadalupe Lopez. The court required the supporting witnesses to be examined under oath as to their knowledge and interest, so as to enable the court to determine the sufficiency of the affidavit. This examination disclosed the fact that the supporting witnesses knew nothing about any prejudice existing against tbe appellant in either of the counties named. The sole reason given by them for making the. affidavit was that there was a secret organization in the county called the Society of Jesus, and that it was a large society, as he was informed, and existed in a large part of San Miguel county, and that one of the members, Augustine Prada, had told him that the society was going to push the prosecution; that this was the only person who had said anything to him about the matter; that no one had said they wei e prejudiced against him; that he knew nothing about Mora and Guadalupe counties, and that Prada had not told him anything about these counties; that he understood this society also existed in these counties. This Avas substantially the testimony of Ulibarri. Lopez testified substantially that he had lived in Mora county six years before the time of the trial; that he had not lived there since the killing occurred; that he had not talked to any of the people of Mora county about the killing, nor with any of. the people of Guadalupe county; that he did not know of any excitement existing in either of those counties by reason of the killing. Was asked if he found any of the people in Las Vegas who were prejudiced against the appellant, and he ansAvered no; that he had not talked with any people who were prejudiced against Gonzales; that he had not found any people prejudiced against the appellant in any of the precincts that he had visited. All he kneAV was what he had been told at Pecos by some parties, and that the killing occurred in the neighborhood of Pecos, and that he never heard anything about it except there; that the deceased.was a member of this society, and that he believed it was a large society, and that the deceased frequently asked him to unite Avith the society and intimated to him that the members of the society would stand by each other, and these were the only reasons given by the witness for his affidavit supporting the change of venue. After hearing the testimony of these supporting witnesses, the court overruled the motion for change of venue.
The contention of appellant’s counsel .is, that the present change of venue law of this Territory is mandatory, and that the court has no discretion, but must grant the change of venue when the affidavit substantially complies with the language of the statute, and is supported by two witnesses who state that they believe the defendant. cannot have a fair and impartial trial for the reason stated in his affidavit.
This matter has been considered by this court in the case of the Territory v. Leary, 8 N. M. 180. In that case the precise point was made that is made here, and in considering the case, the court determined that as to the oaths of the supporting witnesses, the trial court had a large discretion, which it was proper for the court to exercise in considering the oaths of such witnesses, and that the court had the power to require an examination of such witnesses under oath. In that case the court said:
“The statute does not say that the proofs in support of defendant’s affidavit may be made by the oath of any person, but requires that such person shall be disinterested. Who is to determine whether the persons offered are disinterested? There can be but one answer ■ — the court alone. If the persons offered as disinterested can by their mere ex-parte affidavits close the door against their own examination upon that point in open court, notwithstanding the trial court requires it, a thing so extraordinary, could only be justified by the clear terms of the statute, or rule of court, and there is none. The ease and facility with which change of venue is taken, often to the great delay of causes, the •defeat of justice, and the hardship of witnesses, does not require us to construe the change of venue law beyond its plain terms, and in the full and efficient protection of the defendant in a fair and impartial trial.” Eurther on in the opinion of the court the question of whether the word “disinterested,” as used in the statute, should be considered in its narrow sense, or whether it ■should be considered in a broad and comprehensive sense, the court further says:
2 “So here, while the law makes the oath of two disinterested persons conclusively sufficient in support of the defendant’s affidavit, the court is vested with a discretion in ascertaining whether such persons are disinterested. For the purposes of this case it will be unnecessary to determine whether the Legislature used the word ‘disinterested’ in the narrow sense distinguished between persons qualified and those disqualified at common law from testifying, or whether it used it in the broader sense as synonymous with fair-minded and impartial. The statute was passed long after the Legislature had swept away the disqualification of witnesses arising from interest, and it may well be that the rule laid down in Freleigh v. State, 8 Mo. 607, would not apply, but that, construing the statutory expression in the light of the present condition of the law as to the qualifications of the persons testifying (Suth., Const, sec. 247) we should consider the legislative intent to be that those whose oaths were to inform the court and set in motion in judicial action, should be indifferent to the cause in the. broader sense of being impartial and fair-minded.”
!ln the decision above referred to, this court has held that the court is vested with a discretion in the matter of determining whether the subscribing witnesses are such persons as the statute contemplates by the expression “disinterested” in the broad sense of being fair-minded and impartial. This decision was rendered by this court on the eighteenth day of October, 1895, aud the present rules governing this court were adopted by it on the first day of September, 1897, and were in force at the time of the trial of this cause in the court below. Rule 9 in regard to change of venue was adopted in the light of this decision, and, therefore, was intended to be a rule within the decision of the court in that case. The force and effect of a rule of court has been determined in the case of the Rio Grande Improvement Company v. Gildersleeve, 174 U. S. 608, in which it was held that a rule of court has the force and effect of a statute and practically amounts to an amendment of the statute. The third paragraph of rule 9 is as follows: “On motions for change of venue the judge may examine the supporting witnesses upon oath as to their knowledge and interest, and may determine the sufficiency of the affidavit accordingly.”
It will be observed that this rule authorizes an examination as to the knowledge and interest of the supporting witnesses as is contemplated by the decision above quoted, in that it was declared that the word “disinterested” should be construed in its broad and comprehensive'sense. The counsel contend that the knowledge of the witnesses cannot be inquired into; that the term “disinterested” does not involve the knowledge of the supporting witness to an affidavit for change of venue, but in the light of this decision and the rule of court above referred to-, this contention cannot be supported, and it might be remembered further, that there is a very intimate relation between the knowledge of the witnesses and the disinterestedness required by the statute, because it may well be doubted whether a witness supporting an affidavit for change of venue is a disinterested withness1 who will make an affidavit without any knowledge of the matters and things sworn to by him, and yet, this would be the logical conclusion of the contention of counsel in this case. If the knowledge of the witness cannot be inquired into1, then a stranger knowing nothing whatever of the matters sworn to, would be able to compel the granting of a change of venue, although the oath made by him was absolutely false. It certainly could not have been the intention of the Legislature to take away from the courts the power to protect their proceedings from being controlled and directed in the matter of changes of venue by witnesses who are rank perjurers. If, therefore, the court had the power to inquire concerning the knowledge, interest, impartiality and fair-mindedness of the supporting witnesses, as declared by this court, both in the decision above referred to and the rule adopted by it, the court was vested with a discretion in regard to this motion for change of venue. To reverse this case upon this assignment of error, we must hold that there was an abuse of discretion in the court below in overruling the motion for change of venue. Under the testimony given by the supporting witnesses, there was no abuse of discretion. As to the assignment of error, that the verdict was contrary to the evidence and the weight thereof; it is only necessary to say, that this court has repeatedly held that if it appears there was evidence for the prosecution, which, if true sustains a verdict of guilty, the verdict will not be disturbed on appeal. Territory v. Webb, 2 N. M. 148; Territory v. Maxwell, 2 N. M. 250; Hicks v. Territory, 6 N. M. 596; Trujillo v. Territory, 7 N. M. 43.
3 The evidence in this case was conflicting, but from the fact that the jury found the appellant guilty of mur-derin the second degree, it is very evident that they believed the testimony of the Territory, and if they believed the evidence given for the prosecution to be true, there was undoubtedly sufficient evidence in this case to sustain the verdict of the jury.
The fifth assignment of error relates to the fourth paragraph of the court’s instructions, and the objection made is, that in the definition of murder in the first degree, in quoting the clause “or perpetrated by an act greatly dangerous to the lives of others” the court used the word “or” instead of the word “of” others, but the transcript filed in this court does not bear out this assignment. That clause is correctly quoted, and the word “of” appears before the word “others” in that clause of the instruction of the court. This court, of course, must be guided by the transcript in its possession, and the word “of” is there very plainly, and there is no evidence of any erasure or change in the transcript.
The sixth assignment of error criticizes the court’s explanation of the meaning of the word “deliberately,” as used in paragraph four of the court’s charge, and urges- that it is inaccurate, misleading and prejudicial to the appellant, but it does not seem to be subject to the objections made. Of course, this word might be explained in different language, but substantially it charges that the word “deliberately” is to be understood to mean that the act was done intentionally, or purposely, and in a cool state of the blood, so that the party would be capable of forming a deliberate design to accomplish the unlawful purpose charged, and it is also correct in informing the jury that the word does not mean that the act was brooded over, or reflected upon, for any considerable length of time, or for any length of time. In our opinion, this charge was not calculated to prejudice the appellant, or mislead the jury.
The next objection is to the seventh paragraph -, of the court’s charge in which the court defines express malice, but an examination of this charge will show that the charge is substantially in the language of the statute. The language of the statute, the statutory definition, uses the words “Manifested by-external" circumstances capable of proof,” whereas the charge in this case uses the words: “manifested by external circumstances shown in evidence.” This is simply a change of phraseology, adapting the statutory definition to the evidence in this particular case, and certainly could not mislead the jury as contended for by the appellant’s counsel.
4 In the eighth assignment of error, counsel quotes a portion of the fifth paragraph of the court’s instructions to the jury, and the objection made to it is found in the use of the word “can” in the clause “then you can find him guilty.” To understand this objection, it is necessary to refer to the entire paragraph. Examining that, it will be found that that paragraph informed the jury that if they believed that the defendant is not guilty of murder in the first degree, that they can find the defendant guilty of murder in the lesser degrees, or if they believed that the act committed was justifiable homicide, as defined, in the instructions, or if they entertained a reasonable doubt of the guilt of the defendant in any degree, that the jury can find the defendant not guilty. Used in this connection, which a reading of the entire paragraph shows, we see no objection to the use of the word “can,” because undoubtedly the court was correct in giving the jury the information that although they might find the'defendant not guilty of murder in the first degree, they could find him guilty of murder in the lesser degrees, or they could find him not guilty, and the use of the word “can” in an instruction of that nature is unobjectionable. The court was not charging the jury in that instruction as to the language of the verdict, in the event of their finding the defendant guilty or not guilty, but was informing them of the latitude allowed them by law under an indictment, which, on its face, was an indictment for murder in the first degree. The entire paragraph of the charge must be considered and not a fragment of it, such as is selected by counsel in the eighth assignment.
5 Counsel further objects to the fifth paragraph of the court’s charge.by selecting another fragment of the paragraph which says: “In this case, therefore, it will be your duty to find the defendant guilty of murder in the first degree, or guilty of murder in the second degree, or guilty of murder in the third degree, or not guilty.” This is the concluding portion of the fifth paragraph of the court’s charge, and we can see no error in that portion of the charge in the connection in which it was used by the court. The counsel’s criticism upon this charge is, that it amounted to the court’s telling the jury that they must of necessity agree on one or the other of the verdicts referred to, and then counsel suggest that juries have a right to disagree and entertain an honest opinion. It is apparent, however, that it would he highly improper for a court in any way to suggest in its instructions that the jury had a right to disagree or in any way encourage a jury in failing to agree upon a verdict, and it is perfectly proper for the court to inform a jury that it is their duty to agree upon such verdict as may he proper in the case, giving them, of course, perfect freedom as to determining what their verdict shall be from the evidence in the case. The impropriety of suggesting to a jury in an instruction that they had a right to disagree is apparent at once from the statement of the proposition, and it may not be improper for the court to remark in this connection, that a large majority of the cases in which juries disagree and necessitate a retrial of the cause, grows out of the' failure of juries to regard it as their duty to arrive at a verdict, but of course, we do not wish to be understood as saying that a case cannot arise in which a jury would not be warranted in failing to agree.
6 Paragraph six of the court’s instructions is also objected to. In this paragraph the court informed the jury under what circumstances they would be warranted in finding the appellant guilty of murder in the first degree and the objection made is, that at the close of this paragraph, the court should have added.“unless they find that the homicide had been either excusable or justifiable under the law.” This objection is not well taken. In the first place there is no requirement to that effect in the statutory definition of murder in the first degree, but while a homicide may be justifiable, or excusable under certain circumstances without regard to the degree of murder charged, it is not required that the court shall include in each of his instructions as to the degrees of murder the clause relating to excusable or justifiable homicide. It is sufficient if the court shall fully instruct the jury upon this objection in some portion of his charge, but this can be done, and it is perfectly proper to do it, in a separate paragraph, and a reference to paragraph 13, of the court’s instructions it is found that the whole law on the subject of justifiable and excusable homicide was given the jury.
The eighth paragraph of the court’s instruction, which informs the jury under what circumstances it would be warranted in finding the defendant guilty of murder in the second degree, is objected to for using the following words: “Such killing was unlawful, or perpetrated in the heat of passion without the design to effect death, but in a cruel, or inhuman manner.” Counsel argue that this portion of the court’s instruction as to murder in the second degree was not applicable under the evidence in this case, and was calculated to prejudice the jury against the appellant. The language quoted is a portion of the statutory definition of murder in the second degree, and the circumstances of the killing in this case, in our opinion, warranted the giving of this portion of the statutory definition. The circumstances of the killing were shown by the evidence, and the question as to whether the killing was done in the heat of of passion without a design to effect death, or in a cruel or inhuman manner was for the jury under the circumstances shown by the evidence. The evidence for the prosecution, which the jury seems to have believed, certainly tended to show that this killing was perpetrated in the heat of passion, his coming to the dance uninvited, his angry, bitter conduct during the evening and at the time being considered, and it was proper for the court to inform the jury that if they so> found, they should find the appellant guilty of murder in the second degree.
7 Paragraph 14 of the court’s charge is also objected to by counsel for the appellant, and in connection with this, the first and second paragraphs of instructions asked for on the part of the Territory will be considered as they all relate to the subject of self-defense. Tbe first instruction given by tbe court at tbe request of. tbe Territory is as follows: “Tbe court instructs tbe jury that a person charged with tbe murder of another cannot avail himself of tbe claim of necessary self-defense if tbe necessity for such defense was brought on by bis own deliberate wrongful act.”
This instruction is in almost tbe identical language used bv tbe court and approved in the case of Adams v. People, 47 Ill. 376. The language used by tbe court in that case was as follows: “Tbe defendant cannot avail himself of necessary self-defense, if tbe necessity of that defense was brought on by tbe deliberate and lawless acts of defendant, or bis bantering Bostic to a fight for tbe purpose of taking bis life, or committing a bodily barm upon him in which be killed Bostic by tbe use of a deadly weapon.” Horrigan & Thompson on Self-Defense, page 208; Stewart v. State, supra 191. Of course tbe instructions of tbe court must be interpreted in tbe light of the evidence in the case showing tbe circumstances under which tbe killing was done, and this paragraph of tbe court’s instructions was a proper instruction in tbe event of tbe jury believing tbe testimony for tbe prosecution and disbelieving tbe testimony given on behalf of the defense.
The evidence for tbe prosecution disclosed the facts that when the deceased was going with bis wife and a friend quietly and peaceably toward tbe home of bis mother-in-law, tbe appellant who was evidently standing near tbe door from which be was expected to emerge, and after deceased bad gone some distance beyond tbe appellant, used vile and opprobious language and challenged tbe deceased to come to him, and tbe deceased did so, but in doing so, he was shot by the appellant before be reached him, without any evidence that tbe deceased had any weapons about him, and it being shown that be bad none on his person or in bis bands so as to endanger tbe appellant either in tbe loss of bis life or in suffering great bodily injury, and under these circumstances no right of self-defense existed in the appellant, as has been decided in numerous cases upon that subject. In the case of Territory v. Baker, 4 N. M. 117, this court said: “In order to justify an assault and to slay an assailant within the meaning of this section, there must be an apparent design on the part of such assailant to either take the life of the person assailed, or the infliction of some great personal injury amounting to a felony if carried out; and in addition thereto, there must be immediate danger of such design being accomplished.”
In this case there was not even a fight between the parties, nor any difficulty whatever at the time the shots were fired, at least between the deceased and the appellant, and the only evidence of any combat was that Valencia took hold of the revolver and the appellant and Valencia scuffled for the possession of the revolver, Valencia simply endeavoring to prevent the appellant from firing any more shots at the deceased, and the evidence of the appellant himself was to the effect that when he shot, he shot at the deceased. The court in this instruction was submitting the case to the jury under the evidence and upon the theory of the prosecution, and this is perfectly proper when the court also submits the case to the jury under the evidence and upon the theory of the appellant. In paragraph 14 the court gave another instruction upon this subject, as follows: “You are instructed that before the defendant can avail himself of the plea of seif-defense, and justify himself of the killing charged against him, it must appear from all the evidence that there was a reasonable ground on the part of the defendant to apprehend a design on the part of the deceased, Marcelino Ceballes, or those w;hom defendant claims were with him, to do him, the defendant great .personal injury, and that at the time there was imminent danger of such design being accomplished, and that the said defendant then and there honestly believed that he was in imminent danger of then and there receiving from the deceased and those whom defendant claims were with said deceased, some great personal injury; and that the said deceased, Marcelino Oeballes and those whom defendant claims were with him were in a position and had the ability then and there to do the defendant great personal injury, and that the facts and circumstances were at the time sufficient to convince the defendant of an honest belief that he was then in imminent danger of receiving some great personal injury from the deceased, Marcelino Oeballes, or those whom defendant claims were with Marcelino Oeballes.”
This instruction is very full and presents the law substantially within the doctrine laid down in the case of the Territory v. Baker, supra, above quoted. This paragraph is objected to by appellant’s counsel, and it is argued that it is not essential'or even required that the deceased or those who- acted with him should have been in a position, or should have had the ability then and there to do the appellant a great personal injury, but it is only necessary and it was sufficient that it should have reasonably appeared to the appellant that the. deceased and those acting with him were then in a position and had the ability to do him serious bodily injury. The appellant’s counsel’s claim is substantially that the state of mind of the appellant at the time of the homicide is all that is to be considered. It is obvious that the jury cannot determine the state of mind of the appellant at the time the killing occurs. The appellant alone can know that, and the appellant acts at his peril. When the actions of the defendant are being considered by the jury, upon the trial of the cause, it is for the jury to determine whether the defendant had reasonable grounds for believing that he was in danger of losing his own life, or of receiving great personal injury, unless he took the life of his assailant. The mere fact that the appellant testifies that he so believed, is not sufficient unless he is able to satisfy the jury that he had reasonable grounds for apprehending such danger. If the mere testimony of the defendant, that he believed his life was in danger, or that be believed that be was in danger of receiving great personal injury was final and conclusive •upon tbe jury, then it would be easy for tbe defendant to secure an acquittal, even in a case where tbe defendant was in no danger whatever and tbe circumstances .did not warrant him in entertaining tbe belief that there was any such danger at tbe time be took tbe life of another. But tbe law does not leave it entirely with tbe defendant to acquit himself by simply testifying to bis own belief, but on tbe contrary, tbe circumstances of tbe killing must be such as to enable tbe jury to determine whether tbe appearances of danger were sufficient to convince a reasonable man, in tbe situation of tbe accused, that' death, or great personal injury upon tbe person of the defendant was intended, and that there was imminent danger that such a design was about to be accomplished. This is one of tbe questions of fact which tbe jury must determine under the instructions of tbe court, and to secure an acquittal on tbe grounds of self-defense such circumstances must appear, at least, as would raise a reasonable doubt in'the minds of tbe jury as to whether or not tbe defendant bad reasonable grounds for apprehending such danger. Thompson on Trials, sections 2060 and 2167; Territory v. Baker, supra; Sackett on Instructions, page 703; People v. McLeod, 1 Hill 377, Horrigan & Thompson on Self-Defense, page 784; Rippy v. State, ibid 345; Williams v. State, ibid 349; Wesley v. State, ibid 319; Dyson v. State, ibid 304; State v. Scott, ibid 163; Hinton v. State, ibid 83; Harrison v. State, ibid 71; Cotton v. State, ibid 310.
8 9 But tbe appellant contends that these instructions do not fully inform the jury that the grounds for apprehension of danger should be judged by them, from tbe standpoint of tbe defendant, and as tbe same would reasonably appear to tbe defendant at tbe time be killed tbe deceased. Where counsel for appellant objects to tbe instructions given by tbe court, as not fully and fairly presenting tbe law of tbe case to tbe jury, counsel in the court below, should, while the matter is before the trial court, and is within the power of the court to correct, offer such instructions as would fully cover the defects claimed and where no attempt has been made to do this in the trial court, such assignment will not justify reversal in the appellate court. Territory v. O’Donnell, 4 N. M. 196; U. S. v. De Amador, 6 N. M. 173. But in this case the counsel for the appellant did his duty and requested the court to give instructions covering the points desired, and we find that the court granted the requests. By reference to these instructions, five in number, it will be found that every point of objection to the paragraphs of the court’s charge, and the instructions given at the request of the Territory as to the issue of self-defense, have been fully covered by the instructions asked for by appellant. At the request of the appellant the court charged the jury that: “If they believed from the evidence that the defendant at the
time the wound was inflicted from which the deceased subsequently died, that the deceased, either alone or acting together with other persons, assaulted the defendant, and that it then and there reasonably appeared to the defendant that he was in imminent danger of being wounded or receiving great personal injury at the hands of the deceased, Marcelino Ceballes, and other persons acting in concert with him, and that the defendant fired the fatal shot in the protection of his person, while he was so under the impression that he was in imminent danger of being murdered, or of receiving some serious personal injury to himself, then if you so believe you will find the defendant not guilty.”
In the second instruction requested by the defense, the court instructed the jury as follows: “You are further instructed that under the facts and circumstances of this cause the determination of the question as to who provoked the affray and made the first assault materially affects the logical conclusions and the responsibility of the defendant, and inasmuch as under the law it becomes the duty of the prosecution to prove every material ingredient of this, crime beyond any reasonable doubt and to the satisfaction of the jury, before you can be authorized in convicting the defendant, you must be satisfied in your own minds -beyond all reasonable doubt that the defendant provoked the fight — made the first assault on the deceased; therefore, if you are in doubt on this point, that is, if your minds are not satisfied whether the defendant provoked the fight and made the first assault or whether the deceased did so; then it becomes your duty under the law to give the defendant the benefit of the doubt and acquit the defendant.”
In the third instruction asked for by the defense, the court instructed the jury that: “In determining whether the circumstances existed that would justify the defendant in inflicting the wound upon Marcelino Ce-bades which subsequently resulted in his death, you are instructed that you must determine that fact from the condition and circumstances that surrounded the defendant at the time and place of the affray as they reasonably appeared to him at the time, that is, by placing yourselves in your OAvn minds as far as may be possible from the evidence under the same circumstances in which the defendant was placed at the time of the shooting, taking into consideration as far as the evidence may enable you to do so, the temperament of the defendant and his moral and physical courage or the lack thereof.”
In the fourth instruction asked for by the defense, the court instructed the jury that if the defendant was attacked he did not need to retreat, but could stand his ground and resist an assault made on him, even to the extent of killing the- deceased, and the fifth instruction given for the defense, was a repetition of the law of the Territory on the subject of justifiable or excusable homicide.
An examination of the instructions given at the request of the defendant will show that every point which defendant’s counsel has argued as error in the other instructions given by tbe court, has been cured by the instructions given by the court at the request of the appellant, and, indeed, the law laid down at the request of the appellant, was exceedingly liberal to the appellant, and if any error.existed at all, it is in the extreme liberality of the instructions in his favor, but of this, of course, he cannot complain. The instructions of the court fully and fairly submitted the whole question of the rights of the appellant as to self-defense, and the assignments of error as to those instructions will be overruled.
10 Paragraph 19 is objected to upon the ground that the court erred in giving the name of the appellant in his instructions as to the weight of evidence and what might be taken into consideration by the jury in determining the credibility of the witnesses. It is argued that the court erred in singling out the defendant by naming him. An instruction of this nature and broader than the one given by the court in this case, was under consideration in the case of the Territory v. Romine, 2 N. M. 114. It is true that the court in that case intimates that it would be better practice not to name the defendant, but tire court does not hold the instructions to be error, because the defendant was referred to. This matter was again before the Supreme Court of this Territory, in the case of the Territory v. Faulkner, 6 N. M. 464. In that case the instruction given by the court was as follows: “The fact that such witness is especially interested in the result of the action or of your own deliberations may be taken into account by you, and you may give such testimony only such weight and credit as you think it fairly is entitled to receive under all the circumstances of the case, and in view of the special interest of such witness in the result of the action.”
It was argued in that case that this instruction not only singled out the defendant, but was calculated to discredit his testimony before'the jury, but the court held that such an instruction was not error.
Tbe instruction complained of in this case is as follows: “Tbe court instructs tbe jury that although tbe law makes tbe defendant in this case a competent witness, still tbe jury are tbe judges of tbe weight which ought to be attached to bis testimony, and in considering what weight should be given to it, tbe jury should take into consideration all of tbe facts and circumstances surrounding tbe case as disclosed by tbe evidence and give tbe defendant’s testimony only such weight as they believe it entitled to in view of all tbe facts and circumstances proven on tbe trial.”
By comparing tbe instruction given in tbe case of tbe Territory v. Faulkner, supra, with the instruction numbered 19 in this case, it will be found that tbe instruction in this case is not as strong as tbe instruction given in the other case, in this, that it omits tbe following language: “and in view of tbe special interest of such witness in tbe result of tbe action,” tbe court sustained tbe instruction given, and in that case it is, therefore, authority for sustaining tbe instruction numbered 19 complained of in this case.
Paragraph 20 of tbe court’s instructions is objected to on two grounds: First, it is objected that while tbe court instructed tbe jury that it was their duty to reconcile all tbe testimony if possible, tbe court did not further instruct them, tbe purpose of such reconciliation, and second, that tbe court limited tbe discretion and curtailed tbe functions of tbe jury, when tbe court instructed them that although a witness may be mistaken in some part of bis evidence, it does not follow as a matter of law that be bad willfully told an untruth, or that tbe jury would have tbe right to reject bis entire testimony. These objections are of a trivial nature and do not furnish any basis for a reversal of this case. It is perfectly proper for tbe court to instruct tbe jury to harmonize tbe testimony in tbe case, if they can do so. Tbe charge of tbe court clearly defined the issue to be tbe guilt of tbe defendant, and tbe jury could not be misled as to the meaning of the court’s language in suggesting that it was the duty of the jury to harmonize the testimony. The court did not inform the jury that they must harmonize the testimony, but that it was their duty to reconcile the testimony if they could do so-. The whole purpose of such reconciliation as the jury would clearly understand from the charge of the court, was to determine its bearing upon the charge against the defendant, and it is not error for the court to inform the jury that it is their duty to reconcile apparently conflicting evidence, in order to establish the true facts in the case, upon which to base their verdict. The portion of this paragraph to which the second objection is directed does not show the purpose of the entire instruction. In the former part of the same instruction, the jury had been informed, that if they believed that any of the witness had testified intentionally and deliberately false as to any material matter in issue, that the jury had a right to disregard the testimony of such witness, unless the same was corroborated by other credible evidence, and in that connection the court deemed it proper to inform the jury that if they believed that a witness was mistaken and did not willfully testify falsely, that then it did not follow as a matter of law, that his entire testimony should be disregarded. This instruction states the law correctly, because juries are not at liberty to disregard the entire testimony of a witness, if they believed that the witness had testified erroneously, but in doing so was simply mistaken and did not do so knowingly and willfully. In our opinion, neither of the objections made to this paragraph of the instructions are well founded.
The last objection is, that the instructions of the court taken as a whole are confusing, unintelligible and calculated to mislead the jury. The instructions of the court in this case are not subject to this objection.. The instructions of the court presented the case to the jury under the evidence in the case, both from the standpoint of the prosecution and that of the defense in a full, fair and impartial manner, and upon the issue of self-defense upon which the appellant relied for justification, the instructions not only presented the issue and the rights of the appellant fully and clearly, but in a manner decidedly favorable to the appellant, and taken as a whole the charge upon that subject was wholly unobjectionable from the standpoint of the appellant. Every theory of appellant as to his justification on the ground of self-defense was given to the jury in language prepared and requested by the appellant’s counsel.
In paragraph 16 of the court’s instructions, the jury were informed of the presumption of innocence- in behalf of the appellant in the following forcible language; “The defendant is presumed to he innocent of the crime charged against him and this presumption continues with him until overcome by proof of his guilt beyond a reasonable doubt. This presumption is not a mere form, but is a substantial right, belonging to the defendant, and if you have a reasonable doubt of defendant’s guilt, you should acquit him.”
And in paragraph 12 of the court’s instructions, the jury are again instructed that the defendant must have the benefit of every reasonable doubt whether upon the main case, or as to whether the killing was excusable or justifiable homicide, and the court even goes further and says, if for any other reason they are not satisfied of the defendant’s guilt, it is their duty to find the defendant not guilty.
An examination of the entire charge of the court shows it to have been not only not prejudicial to the appellant, but clearly preservative of all his rights und’er the law and the evidence. The errors assigned, and which have been specifically referred to above, were' all embodied in the motion for a new trial in this case, which the court below overruled.
From the conclusion reached by this court upon the errors assigned, it follows that the court below, did not err in overruling tbe motion for a new trial and entering judgment upon the verdict of the jury. The judgment of the lower court will, therefore, be affirmed with costs.
Baker, McMillan and Parker, JJ., concur. Chief Justice Mills tried this case in the lower , court, and therefore did not sit in the hearing in this' court.