delivered the opinion of the court.
At the October, 1895, term of the district court of Boulder county, the defendant J. J. Ritchey was informed against for the murder of B. E. Rhodes in said county on the 11th day *316of May, 1895. He was tried at the same term, convicted of murder of the second degree, and sentenced to confinement in the penitentiary for a period of twenty years. To reverse the judgment upon this writ of error his counsel rely upon three alleged errors of the district courts
The defendant admitted the killing, and justified under a plea of self-defense. He was the owner of a tunnel and a mine in Boulder county which were under lease by him to the deceased, Rhodes, and McClelland Brown. A forfeiture of the lease was claimed by the defendant for a failure by the lessees to comply with certain covenants, for the breach of which the lessor, by the terms of the lease, might declare a forfeiture and reenter and take possession. The lessees denied this forfeiture.
On the morning of the 11th of May, 1895, during the temporary absence of the lessees, and at an early hour in the day, before they began work, the defendant, in company with three or four of his employes, peaceably entered upon the premises and took possession. When Rhodes arrived a short time thereafter, it appears that he learned of what the defendant had done, and upon his endeavor to go into possession himself and oust defendant and his assistants, and while deceased and defendant were alone in the tunnel and out of sight of the witnesses, the altercation arose in which Rhodes lost his life at the hands of Ritchey.
So far as the record discloses, there is no living witness to the shooting except the defendant himself, and his testimony is that in the endeavor to oust the defendant and regain possession for himself, during the controversy the deceased violently assaulted the defendant with a rock and a knife, and in order to repel the assault and save his own life, which he then believed to be in peril, he, the defendant, fired the shot that killed Rhodes.
While, upon one hand, under the hypothesis that the jury might believe the evidence introduced in behalf of the people tending to show that defendant sought out and provoked the difficulty that he might have a pretext for the killing, an *317instruction would have been proper the effect of which was to deprive the defendant of his plea of self-defense; nevertheless, there was evidence before the jury, produced in defendant’s behalf, which made pertinent instructions by the court defining the law pertaining to the right of self-defense, .especially where at the time in question the defendant was in a place where he had a right to be, and whilst he was engaged in a lawful business, and in defending his person and property. It was necessary, therefore, for the jury to be correctly instructed upon the law of the case, upon the supposition that they might believe the evidence introduced in behalf of the defendant.
The first contention of plaintiff in error is that the evidence was insufficient to justify the verdict. In view of the fact that there must be a retrial of this case, we decline to enter upon a discussion of the evidence further than to say that after a careful examination of the record we find no reason for disturbing the judgment upon this ground.
Another of the errors assigned is that the court improperly received the testimony of Patrick Casey, a deaf-mute, and also, after its admission, erred in not granting the defendant’s motion to withdraw it from the jury. The method of examining this witness was by submitting to him written questions to which he replied in writing, and the questions and answers were then read to the jury. His testimony in part related to alleged conversations had between him and the defendant, in which Casey swore that the defendant, some time prior to the homicide, threatened to shoot the deceased.
No objection was made to this testimony as it was given, and not until the district attorney had practically closed his. examination in chief. Then counsel for the defendant moved the court to withdraw all the evidence given by the witness,, and based their application upon three grounds: first, that no exact time was fixed when the threats were made; second, because of the difficulty of examining the witness; third, because it appeared that the conversation between Casey and the defendant, during which these threats were made, was *318through and by the medium of written questions and answers; and before a witness is permitted to testify as to the contents, it should first be shown that the written questions and answers are not to be had in court. The court overruled the motion.
That difficulty attends the examination of a deaf-mute is no reason why his testimony should be excluded. Contrary to the assertion of counsel, the time of the conversation at which the threats were said to have been made the record shows was specifically stated. Assuming, but not so deciding, that such portions of the testimony of Casey as purported to recount the conversation which he had with the defendant concerning the threats were reduced to writing, and hence were inadmissible until'proof of loss of the original writing was made, it does not necessarily follow that the court erred in refusing to grant defendant’s motion to strike out the testimony. Gasey had given important testimony as to other matters. In his testimony defendant claimed that in the previous November his trunk had been broken open, and from it, among other things, was stolen a knife. This knife was found in the tunnel near where Rhodes was killed a few minutes after the homicide, and the defendant testified that it was with this knife that Rhodes made the felonious attack upon him, and that with it Rhodes had in several places cut the defendant’s shirt in the attempt to inflict upon him bodily injury, just before the defendant resisted the assault by firing the fatal shot. When Casey was upon the stand he testified that defendant had this knife in his possession and at his house and on his person long after November and until shortly before the homicide, and that during this period of time he, Casey, had often used this knife to sharpen pencils and to trim his nails. It must be borne in mind that this motion went to the entire evidence. If any portion of it was admissible, the motion ought not to have been granted. That the evidence relating to the knife was properly admitted is beyond controversy. The court, *319therefore, was not obliged to subdivide the defendant’s motion, and its ruling rejecting the same was right.
Upon the foregoing the court is unanimous.
The remaining error argued pertains to the giving by the court of instruction numbered 18, which is in words as follows :
“ A person may repel force by force in defense of his person, habitation or property, against one who manifestly intends or endeavors by violence or surprise to commit a felony on either; and if a conflict ensue in such case and life is taken, the killing is justifiable, but in case of assault it must be proved that the assault was eminently perilous, and unless there be an apparent manifestation of a felonious intent no assault will justify killing the assailant. A party is not compelled to flee from his adversary who assaults him, but before he can justify the homicide, the assault must he so fierce as to not allow the party assailed, to yield without manifest danger to his life, or enormous bodily harm. In such case, if there he no other way of saving his own life, or saving himself from great bodily harm, he may in self-defense kill his assailant.”
This concerns the right of self-defense, and, in part, goes to the doctrine of retreat. With much vigor counsel for plaintiff in error assert that the vice in this instruction is so glaring that the act of the court in submitting it to the jury was error most harmful. This instruction finds recognition in the authorities (2 Thompson on Trials, sec. 2163; State v. Kennedy, 20 Iowa, 569).
The doctrine attempted to be stated by the trial court in this case is laid down in the Iowa Case, supra, and thence copied into Judge Thompson’s valuable work on trials. The learned author, however, makes certain changes and omissions in the language, and as thus modified, the trial court here gave the instruction which counsel insists but accentuates the error contained in the original. Counsel contend, and this court has already so decided, that this instruction, whether expressed as in the Iowa Case or in the language of J udge Thompson, is not, unless taken with certain well understood *320exceptions, a correct statement of the law as sustained by the weight of modern authorities. Babcock v. The People, 13 Colo. 515; Boykin v. The People, 22 Colo. 496.
The portions of this instruction as above italicized by counsel with particularity indicate the objectionable features. Down to the semicolon the first sentence seems to be predicated upon section 1186 of Mills’ Ann. Statutes (Gen. Stats. ’83, sec. 719), wherein the homicide, in the specified cases, is declared to be justifiable where the deceased manifestly intends to commit a known felony upon the defendant. The rest of the sentence down to the first period introduces the element of assault, as embraced in section 1188 of Mills’ Ann. Statutes (Gen. Stats. ’83, see. 721), and, in effect, states, that before the defendant is justified in killing his assailant, not only must the assault be eminently perilous, but there must be an apparent manifestation of a felonious intention upon the part of the assailant. Under section 4 of article 18 of our constitution a felony means any criminal offense punishable by death or imprisonment in the penitentiary, and none other.
The criticism upon this particular part of the instruction is that, although under the latter section of our statute a person may kill his assailant if all the other necessary elements are present, not only to save his own life, but, as well, to prevent his receiving great bodily harm, the jury are, nevertheless, told that if the assailant intends merely to inflict upon the defendant great bodily harm (which, under our statute, is nothing but a misdemeanor and punishable by fine or imprisonment in the county jail), the defendant may not resort to self-defense, and may do so only when the assailant intends to commit upon the defendant a crime of the grade of felony.
If, by the use of felonious, is meant that the crime which the assailant intends to commit must be of the grade of a felony, this instruction is erroneous. If, however, the court meant merely that the assault must be accompanied by the intent to commit a crime, or with a criminal intent, it was not, in this respect, faulty. The only proper and safe prac*321tice, and one that removes all doubt, in a case like the one before us, in an instruction upon this point, is to state that the defendant not only may resort to self-defense if absolutely necessary to save his own life, but, also, to prevent his receiving great bodily harm.
The second and third sentences, however, are the ones which demand more serious consideration. The use of the word “enormous” instead of the word “great” is disapproved in McDonald v. The State, 89 Tenn. 161, and the case was reversed upon that ground. It was there said that “ enormous ” is a word of richer, deeper color than the word “ great,” and its use naturally had a tendency to lead the jury to believe that something more than great bodily harm must be apparent. As in the last sentence of the instruction the court here uses the word “great” as apparently synonymous with the word “ enormous ” (which has authority in Webster’s. Dictionary), it is possible that the jury were not misled. It is appropriate for us, however, in connection with this and the preceding point, to add with our approval the following language of the court in the McDonald Oase, supra: “ When the path is plain and well marked by long and consistent travel, it is always safe to pursue it, while it is always dangerous to undertake to make a new one to the same end, or to qualify old, unbroken, and well-understood expressions of what the law is.”
But the vital objection to this instruction, in our view, is that it seems indiscriminately to apply to the facts of the case the common law doctrine of retreat to the wall. Had the court in apt language limited this doctrine to that class of cases to which it has been held applicable—in which the case as made by the people might be included—the objection made here by the plaintiff in error would not be tenable. But where, as here, in the form of an abstract proposition of law, in terms as relevant to the case made by the defendant as to a ease where the provocation was but a mere assault, the jury are instructed that the defendant, in every case, must retreat to the wall before he is entitled to resort to *322self-defense, the error is manifest. We have so lately had occasion to determine and enunciate the rule in this jurisdiction, and to discriminate between the classes of eases wherein the doctrine is, and wherein it is not, applicable, that we merely refer to the Boykin Case, supra, with our approval of what is therein said.
As to the last proposition the members of this court are agreed that instruction numbered 18 was an incorrect statement of the law. My brethren are of the opinion that it was prejudicial error, for which the judgment should be reversed. In the latter conclusion the writer of this opinion does not concur. His reasons are: Plaintiff in error, by reason of not having, as the writer believes, properly objected and preserved exceptions to the giving of the objectionable part of this instruction, and not having properly assigned error to the said ruling, is not in a position to question the same. Were this not so, still this instruction is but an incorrect statement of the doctrine in the abstract. No attempt is made to apply it to the facts of this case, either as made by the people or by the defendant. In instruction No. 34 is to be found an instruction upon the doctrine of retreat in which the jury are explicitly told, in terms as favorable to the defendant as he could ask, that the doctrine is inapplicable to the kind of a ease which is there stated the defendant’s evidence tends to establish; and so, while the law in the abstract was incorrectly given, its application to the facts of the case, which defendant’s evidence tended to establish, was correctly made.
My brethren, however, are of the opinion that the error was prejudicial, and that by the giving of this instruction the jury may have been, and probably were, misled, or their minds confused, to the extent that the error found in instruction No. 18 contributed to the verdict which they returned.
The judgment, therefore, based upon this verdict, must be reversed, and the cause remanded for a new trial.
Reversed.