(after stating the facts.) The appellant was indicted for murder in the first degree, and convicted of murder in the second degree, in Crawford circuit court, for the killing of one Dank Davis. Several motions were made for continuance of the cause, which were denied, and which we do not and need not discuss.
1. Right defeadaut t< compulsory process. °f At the beginning of the November term, 1893, of the Crawford circuit court, the judge made, published and had entered of record the following, among other, rules:
“1. The clerk of the court is prohibited from issuing suboenas for more than three witnesses on a side, anl more than five witnesses on a side in felony cases, without the order of the court or judge.
“2. The order of the court, or judge for more than the number of witnesses mentioned in rule 1 may be procured by presenting a written application, made under oath, to the court or judge, showing the necessity and materiality of such witnesses.”
The appellant applied to the clerk of the court for subpoenas for eighteen witnesses, which were refused by the clerk upon the ground that the appellant had had subpoenas for five witnesses, thee number allowed under the rule of the court, without written application for a greater number, and order of the court or judge. The appellant then made a written application to the court, stating the facts, and that the witnesses were material, but not stating how they were material, and praying an order directing the clerk to issue the subpoenas, which was denied by the court, to which the appellant excepted, the court finding that the application was made for the purpose of testing the validity of the rule. The action of the court in this behalf is assigned as error in the motion for a new trial.
It does not appear that the appellant was prejudiced by the absence of these witnesses. He made no application for continuance to obtain their testimony, and a majority of the court are of the opinion that the case should not, on this ground, be reversed. But we are of the opinion that such rules cannot be approved, and that there is neither authority or precedent for them to be found in the history of the jurisprudence of this State. Dispatch in business and economy in the administration of the law are desirable and commendable ; but the constitutional right of a defendant on trial for felony is made inviolable by the constitution, sec. 10, art. 2, of which provides that “in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, * * and to have compulsory process for obtaining witnesses in his favor.”
We know of no authority that would warrant the incumbering of the free enjoyment of this right by the condition imposed under the above mentioned rules of the court.
Upon the trial the appellant testified that, at the time of the killing, the deceased “started toward me, saying-, ‘Keep your hand out of your pocket.’ I backed, but he followed, and struck me with a round piece of iron, and cut a hole in my shirt, and cut my shoulder. I backed again, and he still followed, when I shot him.”
There was other testimony that an iron was found oil the ground near the body of the deceased after the killing-.
% Right of assailant to withdraw from combat. The court gave to the jury, among others, the following instructions: If defendant sought, intentionally provoked, or voluntarily and wilfully engag'ed in a difficulty with deceased at the time of the killing', then defendant cannot invoke the law of self defense, no matter who made the first assault in the difficulty that resulted in the death of Davis, and defendant would be guilty of some grade of criminal homicide ; and this would amount to murder if defendant sought, provoked, or voluntarily and willingly engaged in the difficulty with the intention of killing' deceased in the difficulty, and would be murder in the first degree if done after deliberation and premeditation, as explained in these instructions” — to the g'iving' of which the defendant excepted.
“ It is true, as a legal proposition, that where a defendant brings upon himself a difficulty in which he continues until he brings upon himself a necessity to kill, the law would not hold him guiltless ; yet it is not to be doubted that a person accused of crime may show in justification that, althoug'h he brought upon himself an imminent danger, he, in the presence of that neces-' sity, changed his mind and conduct, and honestly endeavored to escape from it, but could not without striking the mortal blow. There should always be left room for repentance and the abandonment of an evil and unlawful purpose. People v. Simons, 60 Cal. 72. This space for repentance is always open,’ says 1 Bishop, Cr. Law, sec. 871. When, therefore, a combatant, to abandon the conflict, and not to gain fresh strength or a new advantage, withdraws as far as he can, but the other will pursue him, if the taking of life becomes inevitable to save life, he may lawfully kill his pursuer. But a mere colorable withdrawal avails nothing'. Id. n. 1.; Hale’s P. C. 479, 480.” Johnson v. State, ante, p. 57.
The idea here expressed should have been embodied in this instruction. The instruction, without it, was not full enough, and was erroneous in this case.
For the error in this instruction, as indicated, the judgment is reversed, and the cause is remanded for a new trial.