*323opinion upon petition for rehearing.
Chief Justice Haytdelivered the opinion of the court.
The defendant was tried and convicted of murder in the second degree and sentenced to confinement in the penitentiary at hard labor for the term of twenty years. Upon review the judgment of the district court was recently reversed in this court, for error in the instructions.
A petition for rehearing has since been filed, together with what counsel designate as a “ brief,” in support of the same. Although the latter document covers twenty-five pages, it contains no argument tending to show that this court was in error in any one of the three specifications of error pointed out in the original opinion as occurring in instruction No. 18. Notwithstanding the fact that some brief allusion is made in the document to what is termed the “ shadowy distinction ” between the words “ great ” and “ enormous,” it is evident that the so-called “ brief ” was not filed for the purpose of pointing out any error in our former opinion, as the judgment of the district court was not reversed for the incorrect substitution in the instructions of the word “ enormous ” for the word “ great.”
In order that similar errors may be avoided in the future, we will, in this connection, call particular attention to our statute (Mills’ Annotated Statutes, sec. 1188):
“ If a person kills another in self-defense, it must appear that the danger was so urgent and pressing that, in order to save his own life, or to prevent his receiving great bodily harm,, the killing was absolutely necessary.”
Stating the proposition conversely, the law will justify the killing in self-defense by one otherwise without fault, where the danger is so urgent that, in order to save his own life, or prevent his receiving great bodily harm, the killing was absolutely necessary. The term “great bodily harm,” as here used, is one to which courts and juries in this state have become familiar by frequent repetition and long-continued *324usage, and for this reason the language of the statute should not be departed from; and it is particularly dangerous to copy instructions from other states having dissimilar statutory provisions.
It may be instructive, in this connection, to refer briefly to two decisions in other states upon statutes like ours. In the case of Reams v. The People, 30 Ill. 256, the trial court substituted for the language of the statute the term “ most serious bodily harm,” and the supreme court said this required too great a degree of danger, and reversed the case for this and other errors. In McDonald v. The State, 89 Tenn. 161, the court reversed a judgment of manslaughter for the reason that the word “ enormous ” was substituted in the charge for the word “ great,” as in the case at bar; but in this case the judgment of the district court was reversed for other errors particularly pointed out in our former opinion, at least one of which (that in reference to “ retreat to the wall ”) is more serious than the substitution of the word “ enormous ” for the word “ great.” Babcock v. The People, 13 Colo. 515 ; Boykin v. The People, 22 Colo. 496 ; Beard v. United States, 158 U. S. 550.
The errors in instruction No. 18 are so apparent upon its face that, as soon as the court’s, attention was called to the instruction, the writ of error was made to operate as a supersedeas. All the members of this court agree as to its erroneous character. In the opinion of Mr. Justice Campbell, instruction No. 34 cures the error occurring upon the doctrine of “ retreat to the wall,” in instruction No. 18, and for this reason he cast his vote for an affirmance of the judgment of the district court. A majority of the court are, however, of the opinion that it will not do to assume, in case two instructions are given, one correct and the other incorrect, that the jury followed the correct statement of the law. Clare v. The People, 9 Colo. 122. Moreover, the latter instruction fails to cover two of the errors occurring in instruction No. 18, as a reading of instruction No. 34 will disclose:
“ 34. The court instructs the jury that to justify homicide *325on the plea of self-defense, it is not necessary that the defendant should have had no other possible or probable means of escaping. A man who is rightfully going about his lawful business is not compelled to employ all the means in his power to avert the necessity of self-defense before he can exercise the right of self-defense. Should you find from the evidence that defendant had possession of the property and yet had reason to believe that if he sought to maintain possession of the tunnel, he would be attacked by another and be compelled in self-defense to kill his assailant, yet he was not required by law to give up possession or leave the prem- , ises to avoid the attack.”
It is true that an instruction similar to No. 18 was approved by the supreme court of Iowa, in The State v. Kennedy, 20 Iowa, 569; but that was a case of mutual combat, and in such cases the rule is not the same as in a case of deadly assault, where the deceased was the aggressor, as is claimed in this case by the defendant. Boykin v. The People, supra.
In the document filed by the attorney general the following language appears :
“We search the opinion of this court in vain for any discussion or even mention of the proposition of counsel for the people that there is no bill of exceptions in the record. The opinion is absolutely silent upon this matter, and under these circumstances we are bound to presume, inasmuch as the position of counsel for the people, if well taken, would be conclusive of the case, that the court overlooked this proposition. If the proposition has been overlooked by this court, we can but blame ourselves for not giving greater prominence to this proposition, and for not having urged it with greater force in our briefs as well as in the oral arguments. We shall take care that the matter be clearly presented to the court in this brief.”
The attorney general should know why the former opinion of this court is silent upon the matter of the bill of exceptions. It was a matter finally passed upon by the court months before the final hearing, upon a motion to strike, *326and it has not since been an issue in the case, although the attorney general, in his final brief, devotes more space to its consideration than is given to all the other issues. One reason for not sustaining the motion to strike the bill of exceptions was, that the attorney general, by his laches, had waived his right to have such motion favorably considered. This conclusively appears from the proceedings in this court, viz.:
The transcript and the bill of exceptions were filed in this court on the 26th day of December, 1895, and on the same day we granted a supersedeas upon the errors in instruction No. 18, which instruction appeared only in the bill of exceptions, which the attorney general argued and submitted to the court without any intimation that it was not properly a part of the record in the cause. Thereafter, andón the 27th day of January, a motion was made to modify the supersedeas order, and this motion was argued exhaustively, orally and by printed briefs, upon the bill of exceptions and transcript on file. A written opinion was filed by the court upon the record as then presented. On the 17th day of March a motion was filed by the state to dismiss the writ of error because no abstracts or-briefs had been filed by plaintiff in error. When counsel again appeared, as they did three da}rs later, explanations were made which resulted in the abandonment of this motion to strike, whereupon further time to file such abstracts and briefs was given by consent of the state. At this time counsel for the state asked that the cause be set for final hearing and oral argument, and two days thereafter the cause was accordingly set down for oral argument upon June 1st.
On April 16th counsel for plaintiff in error filed his printed abstracts and briefs, prepared at much labor and expense, and it was not until May 1st that the motion to strike the bill of exceptions was filed. More than four months had then elapsed since the case was lodged in this court, during which time many arguments had been submitted by the attorney general, based on the bill of exceptions, and considered by the court. In these circumstances we are surprised *327that any attorney would expect favorable action upon a motion to strike the bill from the files. Murphy v. Cunningham, 1 Colo. 467; City of Central v. Wilcoxen, 3 Colo. 566 ; Gilpin v. Gilpin, 12 Colo. 504; Greig v. Clement et al., 20 Colo. 167.
It is true the court suggested the advisability of applying to the district court for an amendment to the record proper, but it does not seem to have occurred to the attorney general that this may have been for the purpose of avoiding passing upon the laches charged against his office. We at that time thought the amendment would certainly be made, and a way thereby opened to settle the matter without embarrassing counsel. This belief was based upon the fact that the district judge had certified into this court, under his hand and seal, a statement of facts which not only justified, but required, such amendment.
As the amendment was not, however, allowed, and as much stress is laid upon such refusal, we shall briefly review the facts, with reference to the action of the lower court in this particular. The case was finally disposed of and the defendant sentenced by the district court on the 10th day of December, 1895. Counsel for plaintiff in error states upon oath that he then asked in open court, and was allowed by the court, ten days in which to prepare and file his bill of exceptions. The attorney general claims that no such order was made, and for this reason the bill of exceptions ought not to have been considered. In support of the position taken by plaintiff in error, he relied upon the following additional facts, viz.:
First. The bill of exceptions was prepared at the earliest possible moment, and a special trip made by counsel from the city of Denver to Ft. Collins to procure the signature of the district judge thereto, within the ten days.
Second. The bill of exceptions, which was, in fact, certified by the district judge under his hand and seal on, to wit, December 20, 1895, states, inter alia, “ And forasmuch as the matters above set forth do not fully appear of record, *328the defendant has duly and regularly, within the time allowed, tendered this, his bill of exceptions, etc.”
Third. On May 29, 1896, the following order was made and entered of record:
“ State oe Colorado,
County oe Boulder.
In the District Qou/rt.
“ The People oe the State oe Colorado,
vs.
John J. Ritchey.
“ Be it remembered, that upon this, the 28th day of May, 1896, came on for hearing before Jay H. Boughton, judge of the district court of the eighth judicial district of the state of Colorado, the motion of' the defendant, John J. Ritchey, for the entry of an order nune pro tune as of the 10th day of December, 1895, showing that on said date the court made an order allowing and granting to the said defendant ten (10) days within which to prepare and tender to the court his bill of exceptions.
“ And thereupon, it appearing to the court from the testimony presented that upon the 10th day of December, 1895, the defendant in open court, excepted to the rulings and judgment of the court that day made, overruling the defendant’s motion for a new trial, and sentencing the defendant, and asked for ten (10) days’ time within which to prepare and tender his bill of exceptions; and it further appearing that the court granted the defendant's request for time and so ordered, hut that through inadvertence or mistake no entry was made upon the clerk's minutes of the granting of the same ;
“ It is now, therefore, ordered, as of said December 10th, 1895, that the defendant is allowed ten (10) days in which to prepare and tender his bill of exceptions; and it is further ordered that said order be entered nunc pro tunc, thereby reserving to the defendant all of his rights the same as if said order had been entered of record at the time it was made.
[Signed] “ Jay H. Boughton, Judge.”
Certificate of clerk.
*329It is true that both these papers were procured upon ex parte applications; but when the case was again heard, before the same judge, a few days after making the latter certificate, he did not base his refusal to allow the amendment upon any finding that time was not, in fact, given by the court to present the bill of exceptions, as theretofore stated, but said: “ Had I any doubt at all as to the justice of this conviction, and as to whether the defendant had received a fair and impartial trial, I might be disposed to look upon this question differently. I had no doubt at all as to these questions. There is no doubt at all in my mind that the defendant has received merited punishment, and the sentence should be carried out.” At that time a majority of this court had determined that the defendant had not received a fair trial— a right which Liberty has guaranteed to her children—and had issued a supersedeas. The question of the fairness of the trial was at that very instant before this court for determination, and could not properly have any bearing upon the question as to whether or not time for filing a bill of exceptions had been allowed by the district court of Boulder county. In these circumstances we think that it would have been manifestly unjust and improper to have stricken the bill of exceptions from the files, and thereby have deprived the defendant of a review.
The instructions in the case—thirty-nine in number—are in separate paragraphs and separately numbered. The exceptions to these instructions were taken as follows: “ And to the giving of which instructions, and to each and every of them, the defendant, by his counsel, then and there duly and severally excepted.” This is the usual and customary manner of taking exceptions where the charge is written out and in numbered paragraphs. Perhaps in three fourths of the cases brought to this court the exceptions are not otherwise taken. That is a better system of practice which requires counsel, at the time instructions are given, to come forward' and minutely specify their objections to the same; but we all know that in the haste of nisi prius trials this is seldom *330done. We believe that the time of the trial courts could not be spent to better advantage than by requiring counsel, at the time of giving instructions, to specify their objections thereto, giving them time to examine the same in order that errors, if any, may be pointed out and corrected at the trial. Many reversals would undoubtedly be prevented by such a practice.
This court, while condemning the practice which permits exceptions to be reserved as in this case, has never refused to consider such exceptions, if made to instructions duly paragraphed and numbered, although it has refused to review such exceptions where the charge is general and delivered orally. In the case of Miller v. The People, 22 Colo. 530, the charge excepted to was given orally, as a general charge. In Keith v. Wells, 14 Colo. 321, and Edwards v. Smith, 16 Colo. 529, the instructions were given in the nature of a general charge, and the court held that a simple statement at the close, that counsel desired an exception to each and every instruction, was not sufficient. These cases proceed upon the basis that an oral charge is not as carefully prepared as a written charge, and that counsel, being listeners, are more apt to detect errors than the court.
The case of Kansas Pacific Ry. Co. v. Ward, 4 Colo. 30 (cited by defendant in error), does not sustain his contention. The court there held that when the instructions are in the nature of a general charge, excepting to each and every of the instructions will not avail; but in that case the instructions refused, being numbered, a like exception was held sufficient. In reference to the instructions refused, the court says: “ They are a series of separate-and distinct propositions of law, each standing independent and alone, and against each of which the court was enabled to write on the margin the words ‘ given ’ or ‘ refused.’ They each enunciated some rule of law which the appellant claimed at the trial should be given. As it was necessary for the court to either give or refuse them separately, each and every instruction was, therefore, called to the attention of the court, and *331the exceptions to the ruling of the court, in refusing to give such instructions, and each and every of them, was held sufficient, although the instructions refused were in that case not numbered.”
In the document filed by the attornej' general this language occurs:
“ It is well understood by the bench, bar and the public at large that, in the majority of criminal cases, the jury have determined upon their verdict of conviction or acquittal long before the instructions of the court are read, and, except in rare cases, where the instructions are more than usually conclusive as to the duty of the jury either to convict or acquit, have little or no weight with the jury or effect upon their verdict. Certain it is that the instructions are not carefully weighed, nor a nice discrimination used by the jury in the jury room to determine the delicate shades of meaning of the words used by the courts in the charge. Courts are altogether too ready to reverse a case where the guilt is plain and the injury arising from an erroneous instruction rests more in conjecture than in probability or solid substantial reason. It is this disposition of courts that produces disrespect and distrust of the courts in the eyes of the people, and induces resort to summary justice.”
The statement is on a par with many other reckless statements contained in the document so-called a “brief.” We are reluctant to believe that the attorney general would knowingly sanction such assertions, but as he has not disavowed the same, although ample time has elapsed for so doing, we are constrained to believe that he assumes responsibility therefor. It is not well understood, either by the bench, bar, or public, that juries in criminal cases determine upon their verdicts before the instructions are given, and, consequently, before the arguments of counsel. Neither do we believe it to be a fact that, they do so predetermine causes where there is a substantial conflict in the evidence, as in this case. The practice of this jurisdiction requires juries to receive the law from the court, and under their oaths they *332are bound to accept it as declared by the court, and we do not believe that they intentionally violate such oaths; and if counsel generally believed that cases are determined before argument, they certainly would not indulge in oral arguments before juries, as is now the usual practice. As to the statement that courts are altogether too ready to reverse a case where the guilt is plain, we do not believe it to be true of courts in general, and it certainly is not true of this court, as counsel might have ascertained by an examination of the Colorado Reports. Aside from this, the argument is unworthy of consideration in a' court of justice.
It is to be regretted that the law officers of the state have given much time, of late, to insistence upon matters that are purely technical in the attempt to prevent defendants in criminal cases from having their causes reviewed upon the substantial merits. And we commend the following for consideration, as the opinion of one of the ablest authorities upon the administration of the criminal law:
“ It is scarcely necessary to add that a prosecuting attorney is a sworn officer of the government, required not merely to execute justice, but to preserve intact all the great sanctions of public law and liberty. No matter how guilty a defendant may in his opinion be, he is bound to see that no conviction shall take place except in strict conformity to law. It is the duty, indeed, of all counsel to repudiate chicanery and appeal to unworthy prejudice in the discharge of their high office; but eminently is this the case with public officers, elected as representing the people at large, and invested with the power which belongs to official rank, to comparative superiority in experience, and to the very presumption here spoken of that they are independent officers of state.” Section 3003, Wharton on Criminal Law.
Rehearing denied.