Dissenting.
The defendant was indicted for murder in the second degree, committed by killing Joseph McDonald Stewart. The homicide involved seemed to have resulted from a dispute about laying out a county road through the land of the defendant. The highway in question ran through the defendant’s premises from west to east. The claim of the prosecution is that someone had been laying up a rail, fence across the supposed road on the east and west boundaries of the defendant’s land. It is in evidence that the road *261supervisor had thrown down the fence several times; that each time it was put up, again, and that on the evening in question, October 29, 1917, the friends of the road, including the supervisor, had arranged to watch the gaps in the fence on each side of the defendant’s land in order to identify the party who closed them. Two men, Dutton and Jackson, accompanied by the wife of the latter, went in an automobile to a point about 400 steps from the west gap, where the men left the car and went toward the opening in the fence where the road went through. As they approached, they saw someone laying up the rails. They then returned to the car and drove it up to a point near the gap, where the two men got out and advanced through the gap and along the fence inside the defendant’s inclosúre, away from the disputed road, when they saw a dark object farther down the fence. As they approached, it proved to be a man, who pointed a gun first at Dutton and then at Jackson. They both retreated and left in the automobile. Neither of them was able to identify the man they saw.
Soon after this the decedent was killed at a point about 119 feet outside of the defendant’s premises on the east side, measured from the opening in the fence at that point. The evidence tends to show that the decedent was concealed behind a tree. Pursuant to the arrangement he had gone there to watch the gap in the fence. It was expected that a man named Patrick would accompany him, but for some reason Patrick could not be present and the decedent was there alone. He was armed with a pistol. There were powder-marks on the tree, as if a shot had been fired from behind it toward the fence. A pistol bullet was found in one of the fence rails south of the gap, as if fired from the direction of *262the tree behind which the decedent was concealed; Substantially, the defendant’s version of the affray was that he was walking along the east line inside his premises from the north to the south and had got a little south of the line of the road when someone fired two shots toward him from the direction of this tree. He then raised his gun quickly and fired two shots, and moved a few feet farther south along the fence, when a third shot came from the direction of the tree and struck the rail near him. He says that he took a few steps farther south, got down behind the fence, pointed his gun through the fence and fired a shot at a dark object alongside of the tree, when the decedent fell and “hollered,” and the defendant got up and left the scene.
The jury retired about 4 o’clock in the afternoon and at 11:25 that night it returned for further instructions on self-defense and some of the testimony was read to it at its request by the official reporter. Among the instructions given to the jury before it retired, and repeated when it returned, was the following:
“The law regards human life as the most sacred of all interests committed to its protection, and there can be no setting up of self-defense, unless the necessity of taking human life is actual, present, urgent, unless, in a word, the taking of his adversary’s life is the only reasonable resort of the party to save his own life or his person from deadly harm or severe calamity felonious in its character, or from all of the circumstances he had reasonable ground to believe his life or person was in such grave danger.”
This instruction was erroneous, among other things in that it required the danger to be one of deadly or fatal harm or felonious in its character. A man’s life may be endangered by an act not felo*263nious in its nature. It is not essential that his assailant be or appear to be in the act of committing a felony upon him. If the conduct of his assailant either actually or apparently puts the defendant in imminent danger of death or great bodily harm, it is no concern of his with what intent the assailant is acting. For instance, an insane person is incapable of committing a felony, being unable to form a felonious intent; yet one attacked by such a demented person would have the right in the presence of real or apparent danger of death or great bodily harm at his hands, to kill the assailant in self-defense if necessary to repel the attack. In case of common calamity where there is a question of which of two persons shall survive, it is not felony for either to preserve his own life by sacrificing that of the other, as, for instance, in shipwreck where the only plank will support but one person and two struggle for it, either has the right to defend his own life by killing the other, although there is no felony present in the transaction. One would have a right to defend himself even against a child armed with a pistol and about to shoot him.
In State v. Keasling, 74 Iowa, 528 (38 N. W. 397), substantially the same instruction was given that is here under consideration, and the court said that it was erroneous, specifying that:
“Under it the right to take life or to resort to the use of a deadly weapon in the resistance of an assault is made to depend on whether the assault is in fact felonious, and the danger actual and urgent.”
In State v. Clark, 134 N. C. 698 (47 S. E. 36), practically the same question was before the court. The decedent had attacked one Miller with a knife. The defendant interposed, when the decedent turned *264upon him. The court thus instructed the jury, modifying the request of the defendant as noted in brackets below:
“If the jury believe from the evidence that the deceased was engagéd in a difficulty with Asa Miller and was attempting to cut said Miller with his knife' in the presence of the defendant [and the deceased’ was then capable of executing such a purpose], it was his duty to endeavor to suppress and prevent the same, and if in attempting to do so the deceased left off his difficulty with Miller and made upon the defendant with a drawn knife in such manner as to cause the defendant to [reasonably] apprehend, and he did [actually] apprehend, that he was about to be slain, or to receive enormous bodily harm, then the defendant had a right to stand his ground and, if necessary, to take the life of the deceased without retreating [provided the assault made upon the defenda'nt was felonious or with felonious intent].”
After various other adverse comments upon the proviso in the last clause, the court said:
“But the addition to the defendant’s prayer for. instructions was in itself erroneous. It was not necessary that the assault upon the defendant should have been felonious or committed with a felonious intent.”
In McKinney v. Commonwealth, 26 Ky. Law Rep. 565 (82 S. W. 263), the trial judge had instructed the jury that, “One may lawfully defend his home from the willful assault of another.” The plain effect of the word “willful” in this excerpt was to bind the defendant by the intent with which the decedent acted, and not to allow the defendant to rely upon the decedent’s act without reference to his intent. In other words, when worked out to its logical analysis, the teaching of the instruction was that before a defendant may slay his antagonist, the lat*265ter must not only have done or he about to do a wrongful act to the defendant capable of producing his death or great bodily harm, but must also disclose a criminal intent coupled with the act so as to make it amount to a felony. Here follows the commentary of the Kentucky Court of Appeals, speaking by Mr. Justice O’Rear:
“It was not incumbent upon one so assaulted to ascertain whether the assault was willful or not before he could lawfully exercise his right of self-defense or of protecting his family. The fact that the assault was violent, or reasonably appeared to put him or some member of his family in danger of losing his life or of great bodily harm, raised his right to defend himself or those of his home from the real or apparent danger. The word 'willful’ should have been omitted from the clause quoted.”
State v. Robinson, 143 La. 543 (78 South. 933), was a homicide case in which the jury was instructed thus:
“Before such a person as I have described can reasonably and honestly entertain this apprehension of danger to his life, or great bodily harm, there must be what the law calls an 'overt act, amounting to a felonious assault,’ on the part of the person killed, directed against the body of the person doing the killing.”
Ruling on this instruction adversely, the Supreme Court of Louisiana adopted as its own the argument of the defendant’s counsel as follows:
“Under the decisions it was not necessary for the overt act to amount to a felonious assault. For there to be a felonious assault, the person perpetrating it must have intended a felony, while it is the law that he may have intended no harm at all. It is not what the person assaulting, or apparently assaulting, intends that controls, but what the act he does, taken in consideration with facts which had preceded, caused the defendant to believe deceased *266intended, and which gave him the right to so believe, that controls. /It might well be that deceased committed no assault at all, and that he did not intend to commit any, and yet such facts could exist as would give the defendant the right to have taken his life.
“In the case of State v. Rideau, 116 La. 247 (40 South. 691), an uncle had threatened the life of his nephew the day before. The next morning he entered the bedrooni of his nephew, who, without a word, shot him as he entered. Defendant offered to prove the desperate character of his uncle and previous threats, but these were excluded on the ground that there was no overt act. This court said entering another man’s sleeping-room may be a friendly or a deadly act according to circumstances.
“Referring to his entering the room the court said, ‘We think it was a hostile demonstration.’ Deceased had a trunk in the room, and it could have been that he was entering to get something out of the trunk. But the intention of the deceased is not the test. The test is what the defendant believed, and what the act of deceased gave him to believe.”
The following cases are instructive in consideration of the principle that the real or apparent danger which a defendant may resist even unto the death of his antagonist, if reasonably necessary, or apparently so, need not in all cases amount to a felony: State v. Sloan, 22 Mont. 293 (56 Pac. 364); Ritchey v. People, 23 Colo. 314 (47 Pac. 272, 384); Rogers v. State, 60 Ark. 76 (29 S. W. 894, 46 Am. St. Rep. 154, 31 L. R. A. 465); State v. Bowling, 3 Tenn. Cas. 110; State v. Bartlett, 170 Mo. 658 (71 S. W. 148, 59 L. R. A. 756); State v. Gray, 43 Or. 446 (74 Pac. 927); Hill v. State, 94 Miss. 391 (49 South. 145).
The jury might well have believed from the instruction under consideration in the instant case that *267before acquitting the defendant it was necessary to impute to the decedent the actual or apparent purpose to commit a felony, as distinguished from a mere misdemeanor, whereas the defendant is not to be bound by the intent of' the deceased necessary to constitute a felony. He is entitled to defend himself against real or apparent danger of death or great bodily harm, whether it amounts ■ to felony or not, and irrespective of whether or not his assailant has a felonious intent. The instruction was intrinsically erroneous in these respects.
Neither can the question properly or justly be ignored as academic. We have no right to assume as a fact the restrictive alternative that the decedent either fired in self-defense or as an assault upon the defendant, being armed with a dangerous weapon. It is possible that his design was only to frighten the defendant, which would not be felonious. At any rate, the jury could put that construction on his wild shooting and the defendant is entitled to it as constituting reasonable ground for believing himself in danger of death or great bodily harm within the illustration given in the Selfridge case: 1 Horrigan & Thompson’s Cases of Self-defense, 1.
After having repeated the charge in question, taken from the original instructions, the court then addressed the jurors as follows, before they were permitted to retire the second time:
“Now, gentlemen, I have read to you the instructions on self-defense as I gave ..them to you at the time I instructed you before and I think I have covered all of the instructions upon self-defense.
“Now, when you go back I want you to do the best you can to harmonize your differences, and everybody remember that it must be a very severe strain upon a defendant to go through an ordeal of this kind, and he is entitled to a verdict, whatever it *268shall be, and it is also important that the state shall have a verdict as we will have to try the case over again if we do not get a verdict, and I want yon to try it over again, and I want yon to try not to lose yonr tempers and try yonr best to harmonize- yonr differences and everybody try to do right and to do what yonr consciences think should be done but do not get stubborn and say you won’t. Sometimes jurors get tired and I know it is hard to ask jurors to do this work, but some jury will have to solve this and so I will ask you to do the best that you can to solve it. You may now retire with the bailiffs. ’ ’
The counsel for the defendant then and there excepted to th,e language of the court.' The jury very soon afterward returned a verdict of guilty of manslaughter and recommended “leniency of the court.”
In the case of State v. Ivanhoe, 35 Or. 150 (57 Pac. 317), the jury, having been in consultation all night, was sent for and reported that it could not agree upon a verdict. The court sent it out again after addressing it as follows:
“The court will call the attention of the jury to the fact that this is a case of some importance. There has been a great deal of time taken up, and the case will have to be decided by some jury selected the same way you have been selected, and hear the same evidence, practically, you have heard. And, if another should disagree, it would have to be tried again, until a jury agreed, and it is not reasonable to suppose that another jury could arrive at a verdict in the case any better than you can. It is your duty to agree, if you conscientiously • can do so. You should pay proper respect to the opinions of each other, and listen with a disposition to be convinced by each other’s arguments. In this manner you may be able to determine whether any opinion you now hold is justified by the evidence. A proper *269regard to the judgment of other men will often greatly aid us in forming our own judgments. In many of the relations of life, it becomes a duty to conform to the opinions of others, when it can be done without a sacrifice of conscientious convictions. More especially is this a duty when we are called to act with others, and when dissent on our part may defeat and materially affect the rights of third parties. The single object to be effected is to arrive at-a true verdict, and this can only be done by deliberation, mutual concessions, and a due deference to the opinions of each, other. By such means, and such means only, in a body where unanimity is required, can safe and just results be attained; and, without that, the trial by jury, instead of being an assistance or essential aid in the administration of justice, would become a most effectual obstacle to it. Jurors should carefully and patiently canvass all the evidence with an honest and conscientious effort to reconcile any differences of opinion they may entertain of the truth of the matter in issue. Of course, at last, each juror must act on his own judgment— the verdict must eventually be his own verdict; and I would not by these instructions at all urge any juror to violate his conscience, or to agree to a verdict other than he eventually believes to be the result of the evidence, beyond a reasonable doubt. I speak of these matters to you on account of the importance of the jury arriving at a verdict in this case. And, as I have already suggested in this case, I would not instruct any juror to violate his conscience in reaching a verdict; but, in determining whether his convictions are sustained or based exclusively on the evidence, he has a right to consider the opinions of other jurors, and listen to their construction of the evidence, as well as his own, and, if he can then conscientiously acquiesce in a verdict with the other jurors, it is his duty to do so, without violating any conscientious scruples or beliefs he may have in regard to the guilt or innocence of the party accused of the offense.”
*270The only distinction to be drawn between the language of the two trial judges is that in the instant case the instruction is more condensed. Otherwise the one here under consideration is substantially a miniature replica of the former. In both cases the palpable object of the court was to induce, if not compel, a verdict. The reasoning of Mr. Justice Moore in the Ivanhoe case leads clearly to the conclusion that such language is reversible error. If it was wrong in the Ivanhoe case, constituting the only error considered by the court, it was wrong in the present instance. If it was right to reverse the Ivanhoe conviction on that ground, by the doctrine of stare decisis, if for no other reason, the present conviction should be overthrown. The majority of the court in the recent case of Olcott v. Hoff, 92 Or. 462 (181 Pac. 466), laid great stress on the duty of the court to be bound by precedent. If we are to regard this latest deliverance of the court as the law, it should be applied in the instance of the present defendant, leading to a reversal of the conviction.
In State v. Bybee, 17 Kan. 462, the jury had deliberated upon its verdict several hours when it was brought into court and asked if it had agreed upon a verdict. Having answered in the negative, the court harangued it in much the same strain that runs through the present remarks to the jury and those in the Ivanhoe case. The opinion of the court on appeal was delivered by Mr. Justice Brewer, afterward a member of the Supreme Court of the United States. The trial court had urged the jurors to approach the case in a spirit of mutual concession and forbearance and for each to surrender some of his own ideas and opinions to what might seem to be an overwhelming sentiment against him, finally using this illustration:
*271“You should bring your minds together like the mixing of different ingredients by an apothecary, and ascertain what is the product.”
In reversing the case, Mr. Justice Brewer used this language:
“A verdict is the expression of the concurrence of individual judgments, rather than the product of mixed thoughts. It is not the theory of jury trials, that the individual conclusions of the jurors should be added up, the sum divided by twelve, and the quotient declared the verdict, but that from the testimony each individual juror should be led to the same conclusion; and this unanimous conclusion of twelve different minds, is the certainty of fact sought in the law. Especially is this true in criminal trials. Here should no thought of compromise be tolerated. Before the state can fairly demand the conviction and punishment of an alleged criminal, the twelve jurors should each be led from the testimony to a clear conviction of his guilt; and where six jurors believe a defendant guilty of murder, and six believe'him innocent of any offense, it is an outrage for the twelve to bring in a compromise verdict of guilty of manslaughter. We fear that something of this kind occurred in this case, and that the charge above quoted was mainly instrumental in producing this result. At any rate, it seems to us clear that such would be the tendency of those instructions; and it is not apparent that it did not have that effect. For this error the judgment must be reversed, and the case remanded with instructions to grant a new trial.”
In State v. Fisher, 23 Mont. 540 (59 Pac. 919), after an extended colloquy between the court and the jurors, respecting the rules governing the jurors in their consideration of the testimony, the court addressed them, calling their attention to the expense of the trial, and said:
“This is a case, gentlemen, that is an expensive case for the county to try, and it is not a case where *272I think a jury ought to disagree in. They either ought to find this man guilty of murder in the first degree, or they ought to find him not guilty. Feeling as I do about the matter, I do not see any reason why a jury should disagree in the matter, and put the county to a large expense, although I don’t care to force any man against his conscience to agree to a verdict which he does not believe in. Nevertheless, if he can be persuaded by talking with his fellow-jurors as to the guilt or innocence of this defendant, so that they all may agree, I should much prefer it.”
The court reversed the case for this language used by the trial judge.
In State v. Place, 20 S. D. 489 (107 N. W. 829, 11 Ann. Cas. 1129), the utterance of the court to the jury was: .
“You will have to agree in this case, for I will keep you together until you do agree.”
This, indeed, is stronger language than that being considered in the instant case, and led to a reversal. But the language of the court in its opinion applies even to this case:
“Within the limits allowed by the law the discharge of such duty [that of the jury] is as important and should be as free from coercion as are the duties imposed upon the judge. Neither court nor jury is responsible for the conduct of the other while acting in its own legitimate province.”
In People v. Engle, 118 Mich. 287 (76 N. W. 502), under circumstances similar to those of the present litigation, the court advised the jurors to try to be persuaded instead of trying to persuade their fellows. Within an hour afterward, the jury returned a verdict of guilty, recommending leniency. The conduct of the court was held to be erroneous. See, miso, State v. Chambers, 9 Idaho, 673 (75 Pac. 274), *273where the court reminded the jurors of the great expense'of the trial, admonished them to meet in a spirit of investigation, to try to get together and not have too much pride in their individual opinions, and the case was reversed because of such remarks, the court citing the Ivanhoe case from the Oregon Reports. Another precedent to the same effect is State v. Shuman, 106 S. C. 150 (90 S. E. 596).
In addition to its coercive effect upon the jury, the admonition was also erroneous in that, after twice urging the jurors to “harmonize your differences,” the judge told them to “do what your consciences think' should be done, but do not get stubborn and say you won’t.”
In Rugenstein v. Ottenheimer, 70 Or. 600 (140 Pac. 747), the language of the charge was in part as follows :
“Now, gentlemen, take the facts in this case — do what is right between the plaintiff and the defendant here, without regard to anything, except as your own conscience dictates it to you, under the evidence and under the rules of law as I have given them to you. ’ ’
A judgment for the plaintiff was reversed because of this language, and the precedent has never been questioned since. There, the statement made reference to the law and the evidence as an accompaniment to the dictates of conscience. In the instant case the decision is placed exclusively upon “what your consciences think should be done.” The only issue or “difference” to be considered in the deliberations of the jury was the guilt or innocence of the defendant. The jurors’ own differences had no place in the matter. With many, if not most, men, conscience is but a euphemism for prejudice and is not the formula for the determination of an issue of fact *274in judicial proceedings. The law of the land and the evidence constitute the standard by which the accused must be judged and his liberty ought not to be committed to the so-called conscience of his triers. Practically, the court told the jury to return a “general principles” verdict. The direction to harmonize individual differences can mean nothing else than an invitation to a compromise verdict, which Mr. Justice Brewer so properly denounced as an outrage.
Aside from precedent, and on principle, the language of the Circuit Court should lead to a reversal of the case. The statute lays down the limits of the court’s duty thus:
“In charging the jury, the court shall state to them all matters of law which it thinks necessary for their information in giving their verdict, but it shall not present the facts of the case, but shall inform the jury that they are the exclusive judges of all questions of fact”: Section 139, L. O. L.
It is the exclusive province of the court to declare to the jury the law of the case. The latter’s function of declaring the fact after considering the testimony is equally exclusive and the court has no right to say anything to it at any stage of the instructions, much less after its deliberations have begun, calculated to hasten or retard the discharge of its duty. When the judge does so he interferes with the prerogative of the jury in an unwarranted manner. He goes beyond his function of declaring the law and undertakes to influence the declaration of the fact. No principle of law is involved in such a lecture and jurors are not under the tutelage of the judge. Like him, they are for the time being component parts of the tribunal, charged with the execution of the law. Whether or not the jury stated to the court that it was unable to agree does *275not affect the principle. What was said in either case had a tendency to force a decision. Coupling an erroneous instruction on self-defense with the address urging the jury to a verdict in the terms stated, followed as it was hy what was evidently a compromise verdict, was prejudicial to the defendant.
Another assignment of error is predicated upon alleged misconduct of the district attorney in his argument to the jury. As stated, the court admitted the testimony of two witnesses, Dutton and Jackson, to the effect that the same evening but before the homicide in question, they were "on watch near the western boundary of the defendant’s land and saw a man laying up some rails across the alleged county road, who disappeared as they drove up in their automobile, and that when they left the car, went inside the Butler premises and proceeded south along the fence, a man rose up from the fence comer and leveled a gun upon them, whereupon they retreated. It will also be recalled that the homicide occurred near the east boundary of the defendant’s premises. It is charged that in the argument to the jury the district attorney used this language:
“You can’t get away from the fact that Bill Butler shot that boy in cold blood; the fact that he was down in the other end with a Winchester, a fact asserted by Dutton and Jackson.”
The defendant claims that his counsel made the following objection at this point:
“If your honor ‘please, defendant objects to the argument of the district attorney. Neither Dutton nor Jackson testified that defendant was at the west side of his field that night. The fact that defendant did not testify while on the witness-stand that he was not at the west side of his field that night is not an admission that he was there. There was no evidence that defendant pulled a gun on Dutton or *276Jackson. I object to all the argument of the district attorney and ask the court to instruct the jury to disregard same and that defendant did not admit that he was at the west side of the field that night, and that there was no evidence that defendant pulled a gun on Dutton or Jackson and that neither Dutton nor Jackson testified that defendant was at the west side of his fence that night.”
It is also claimed on the part of the defendant that in ruling upon the objection the court used this language:
“Well, it doesn’t'make any difference anyway, the jury are half asleep and if you don’t find the defendant was down there at the west end of the fence that night, why you won’t have to consider it”
—and that the defendant excepted to the ruling at the time. This matter is not in the bill of exceptions signed by the trial judge', but appended thereto is the affidavit of a stenographer who took down the address of the prosecuting attorney, to the effect that the district attorney used thp language in question; that the defendant’s counsel made the objection stated and that the court made the ruling mentioned, to which the defendant’s counsel excepted. The affidavit of defendant’s counsel is also appended, to the same effect, and these two ,are corroborated by the affidavit of a third deponent in substantially the same terms. As to the stenographer, the clerk of the court certifies that he believes her “to be a competent stenographer and a respectable and disinterested party, unless the fact of being employed by the defendant’s attorney would render her an interested party.” As to the' third affiant, the clerk certifies:
“I believe the affiant to be a respectable party. But I do not wish to certify that affiant is disinter-' ested, for the reason that she and the other mem*277bers of the family have followed the casé quite closely and they were called.as witnesses.”
There are no affidavits in the record in opposition to those already mentioned. Section 170, L. O. L., reads thus:
“The point of exception shall be particularly stated, and may be delivered, in writing, to the judge, or entered in his minutes, or taken down by an official stenographer, or by any competent stenographer, at the time it is made, and at the time or afterwards, be corrected until made conformable to the truth. If an objection is made to any ruling of the court in the progress of a trial, and the truth of the statement thereof is not agreed upon beween the counsel and the court, the counsel may verify his statement thereof by his own oath and that of two respectable and disinterested persons, or by his own oath and that of the stenographer who took the same down, and file the same as an exception to the ruling objected to. Such statement must be filed within ten days of the time that the objection is made, if the court at the time the objection is made refuses the exception; and if the disagreement does not arise until the time of the settling of the bill of exceptions, then the said statement may be made and filed within ten days of that time, and not otherwise. Within ten days thereafter the adverse party may file a statement of objection as prepared or approved by the court, together with the affidavits of not more than three respectable and disinterested persons, or the affidavits of himself and the stenographer who took the same down, concerning the truth or falsity of the statement of the exception as filed by the counsel, and prepared or approved by the court. Bach statement of the exception, and all affidavits concerning either of them when filed as herein required, shall be deemed a part of the record of the cause, and upon an appeal or review, the appellate court must first ascertain therefrom the truth of the matter as far as possible, and then determine the law arising thereon. The court must allow the coun*278sel a reasonable time to procure the verification of his statement as herein required; and all affidavits of said persons shall be taken by the clerk of the court, who must certify thereon, if he is satisfied of the fact that the person is respectable and disinterested. ” '
Arguendo the majority opinion urges that a dispute is not apparent concerning the subject matter of the bill of exceptions so as to call for the sworn statement by counsel for the defense and other persons mentioned in the statute. Throughout the original bill before us are erasures of the phrase “exception taken and allowed,” and the typewriting of the document is not uniform, indicating that pages were rewritten and inserted before it received the official signature of the trial judge. All this tends to show that the judge and defendant’s counsel were not in accord about the frame of the bill at the time it was settled. The dispute must have arisen then on August 10, 1918, the date of the settlement of the bill. The affidavits were filed on the seventeenth of the same month, within the ten days allowed by statute. Nay, more; although the objectionable speech of the public prosecutor and the ruling of the court thereon are set out at large in the brief for the defendant they are not challenged in the brief of the prosecution. Under such circumstances it ill becomes this court to say in effect that the question is not before us. In that respect we ought not to assume to be wiser than counsel for the state.
The contention is made that there' is no evidence that the stenographer is competent and allusion is made to what is styled the fragmentary report of the district attorney’s address to the jury. It is barely possible that in the hurry and excitement of a closely contested murder case the diction of the *279prosecutor may not have been perfectly clear and coherent. It may be, too, that an absolutely verbatim report of his language throughout his speech under such circumstances would not read so well as the orations of Webster, Everett or Calhoun, who spoke after careful preparation. It is not impossible that the fragmentary language in the early part of the addresá is due to the speaker rather than the reporter. The contention on that point may be dismissed by reference to the certificate of the clerk, which states that the stenographer in question is both competent and respectable.
In making up the document necessary to present his case on appeal the defendant is not irrevocably bound by the report of the official stenographer, the appointee of the judge whose rulings are drawn in question. The statute gives the defense the benefit of the report of any competent stenographer. It does not prescribe a standard of competency. We have then before us the affidavits mentioned, which the statute says “shall be deemed a part of the record.” Under this mandate of the Code we cannot exclude them. It is true, the clerk while certifying that the stenographer is competent and that both she and Miss Beiberstadt, another affiant, are respectable, does not state unreservedly that they are disinterested. The statute does not make his certificate indispensable to the competency of such affidavits. His qualifying reservations only affect the weight to be given to those sworn statements. But, whether the two affiants besides defendant’s counsel are disinterested or not, we have the alternative showing of counsel’s affidavit and that of the stenographer who took down the language of the district attorney.
*280Trial judges are human beings, subject to pride of opinion and often to an ambition to make a good record of affirmances on appeals from their decisions. This statute is remedial in its nature, designed to give relief in cases where disputes about bills of exceptions arise between fallible judges and fallible counsel. In the instant case, without making any imputation against the trial judge whose standing as a man and a jurist is so excellent, it is enough to say • that the question of the misconduct of the district attorney is in the record for our decision and no amount of special pleading or quibbling can rightly take it out. On the merits of this branch of the case we- are confronted with three affidavits upon which, if false, perjury can be predicated. There is nothing whatever to oppose them. Neither the judge nor the district attorney, nor any respectable and disinterested person furnishes any sworn statement to the contrary. The ' Code says that from such affidavits we must determine the truth of the matter. The official bill of exceptions is neither all sufficient nor self-sustaining. It is laid aside in the settlement of the dispute about its accuracy. As the law declares, we must ascertain the truth from the affidavits. On the objectionable language of the district attorney, the objection of the defendant’s counsel and the ruling of the court thereon, these sworn statements are clear and explicit. To refuse to give them effect is to shut our eyes against the undisputed record and it would belittle the' intelligence of the trial judge to intimate that the objection of defendant’s counsel is .too' complicated to present to the Circuit Court the question involved.
Since there -is no contrary showing, that made by the defendant as to the exception must be taken as true. Attached to the bill of exceptions is a com*281píete report of all the testimony in the ease. On direct examination the witness Dutton testified to the presence of a man near the gap in the fence at the west boundary of the defendant’s land, but did not pretend to say who the man was, although he was within 15 feet of him and the moon was shining brightly. On cross-examination he testified thus:
“Q. Mr. Dutton, are you acquainted with the defendant?
“A. Yes, sir.
“Q. How long have you known him?
“A. Oh, I say four years anyhow, and maybe a little longer.
“Q. Did you see him frequently?
“A. Yes, sir.
“Q. How often about, would you see him?
“A. Oh, sometimes every day; he has worked for me on the road, him and his boys and all three of them.
“Q. Could you recognize his boys from their appearance ?
“A. Yes. Yes, I know him.
“Q. Well, in fact, you are very well acquainted with him, aren’t you?
“A. Yes, sir.
“Q. Well, who was it that you saw there that night at the fence?
“A. Oh, I don’t — I could not say.
“Q. You don’t know?
“A. No, sir, I don’t know. I could not say.”
The witness Jackson testified in similar strain about the presence of a man at the point mentioned. On direct examination he testified thus:
“Q. Do you know this defendant, W. E. Butler?
“A. I don’t know as I ever met him.”
And on cross-examination he gave the following testimony:
“Q. Where was this man you have been testifying about when you first saw him?
*282“A. I don’t know what you mean.
“Q. Well, this man with a gun, isn’t that what you have been testifying about?
“A. Yes.
“Q. Where was he?
“A. When I first saw him?
“Q. Yes.
“A. He was in the fence.
“Q. Who was?
“A. I don’t know.
Judged by the official data in the record, the district attorney was in error in his statement to the jury that Dutton and Jackson asserted as a fact that the defendant was at the other end of the road with a Winchester, the truth being that they did not know who the man was.
“It is reversible error for the prosecuting attorney in his argument to the jury to assert facts and circumstances as being in the case which are not shown by the evidence, or to comment upon such facts, or to draw inferences from them unfavorable to the accused”: 12 Cyc. 574.
In the note to McDonald v. People, 126 Ill. 150 (18 N. E. 817, 9 Am. St. Rep. 547, 559), it is said:
“It may be regarded as an established rule that it is error, sufficient to reverse a judgment, for counsel, against objection, to state facts pertinent to the issue, and not in evidence, or to assume in argument that such facts are in the case, when they are not: Hilliard on New Trials, 225; Proffatt on Jury Trial, § 250; McAdory v. State, 62 Ala. 154; Cross v. State, 68 Id. 476; Wolffe v. Minnis, 74 Id. 386; Little Rock Ry. Co. v. Cavenesse, 48 Ark. 106 (2 S. W. 505); People v. Mitchell, 62 Cal. 411; Newton v. State, 21 Fla. 53; Berry v. State, 10 Ga. 511; Mitchum v. State, 11 Id. 615; Dickerson v. Burke, 25 Id. 225; Yoe v. People, 49 Ill. 410; Felix v. Scharnweber, 119 Id. 445 (10 N. E. 16); Chicago etc. R. R. Co. v. Brogonier, 13 Ill. App. 467; Chase v. City of Chicago, *28320 Id. 274; Ferguson v. State, 49 Ind. 33; Kinnaman v. Kinnaman, 71 Id. 417; Combs v. State, 75 Id. 215; Brow v. State, 103 Id. 133 (2 N. E. 296); Rudolph v. Landwerlen, 92 Id. 34; School Town of Rochester v. Shaw, 100 Id. 268; Martin v. Orndorff, 22 Iowa, 504; Hall v. Wolff, 61 Id. 559 (16 N. W. 710); Henry v. Sioux City etc. Ry. Co., 70 Id. 233 (30 N. W. 630); Huckell v. McCoy, 38 Kan. 53 (15 Pac. 870); Rolfe v. Rumford, 66 Mc. 564; Taft v. Fiske, 140 Mass. 250 (5 N. E. 621, 54 Am. Rep. 459); Scripps v. Reilly, 35 Mich. 371 (25 Am. Rep. 575); Rickabus v. Gott, 51 Mich. 227 (16 N. W. 384); People v. Dane, 59 Id. 550 (26 N. W. 781); Martin v. State, 63 Miss. 505 (56 Am. Rep. 813); Gibson v. Zeibig, 24 Mo. App. 65; Cleveland, Paper Co. v. Banks, 15 Neb. 20 (16 N. W. 833, 48 Am. Rep. 334); Bullis v. Drake, 20 Neb. 167 (29 N. W. 292); Tucker v. Henniker, 41 N. H. 317; Bullard v. Boston & Maine R. R. Co., 64 Id. 27 (5 Atl. 838, 10 Am. St. Rep. 367); Baldwin v. Grand Trunk Ry. Co., Sup. Ct. N. H., July, 1888 (64 N. H. 596, 15 Atl. 411); Perkins v. Burley, Sup. Ct. N. H., July, 1888 (64 N. H. 524, 15 Atl. 21); Fry v. Bennett, 3 Bosw. (N. Y.) 200; Reich v. Mayor etc. of New York, 12 Daly (N. Y.), 72; Jenkins v. North Carolina Ore Dressing Co., 65 N. C. 563; Union C. L. I. Co. v. Cheever, 36 Ohio St. 201 (38 Am. Rep. 573); Willis v. McNeill, 57 Tex. 465; Galveston etc. R. R. Co. v. Cooper, 70 Id. 67 (8 S. W. 68); House v. State, 9 Tex. App. 567; Conn w. State, 11 Id. 390; Grosse v. State, 11 Id. 364; Laubach v. State, 12 Id. 583; Clark v. State, 23 Id. 260 (5 S. W. 115); Tillery v. State, 24 Id. 251 (5 S. W. 842, 5 Am. St. Rep. 882); Brown v. Swineford, 44 Wis. 282 (28 Am. Rep. 582); Bremmer v. Green Bay etc. R. R. Co., 61 Wis. 114 (20 N. W. 687); Hardtke v. State, 67 Id. 552 (30 N. W. 723); Sasse v. State, 68 Id. 530 (32 N. W. 849).”
In State v. Hatcher, 29 Or. 309, 315 (44 Pac. 584, 586), Mr. Justice Moore, speaking for the court, said:
*284“The rule is universal that it is error to allow an attorney, in an argument, over his adversary’s objection, to go outside the evidence and comment on facts assumed to have been proved, and that an exception to the action of the court in permitting it will be reviewed' on appeal: Elliott on Appellate Procedure, § 672; Proffatt on Jury Trial, § 250. In Tenny v. Mulvaney, 8 Or. 513, Lord, C. J., in discussing this question, says: ‘It is held to be the strict duty of the court to arrest an argument not based on evidence! And if objection be made to this course of argument, it is error for the court to permit it, and a new trial will be granted.’ ”
In State v. Blodgett, 50 Or. 329, 342 (92 Pac. 820, 825), the court used this language:
“When the party who is injured by the wrong calls for the intervention of the court by an objection, it will not do for the court to remain silent, leaving the matter of misconduct with the offending party and the jury. The court is bound to interpose when so called upon, and, if an improper and injurious statement has been made without excuse, the effect of it should be erased- from the minds of the jury, then and there, by an emphatic and explicit admonition from the court: Nelson v. Welch, 115 Ind. 270 (16 N. E. 634, 17 N. E. 569). , It may be said with equal propriety that the district attorney, although charged with the duty of prosecuting the defendant, has an equal responsibility with the court in seeing that the defendant has a fair and impartial trial. The, evidence offered should be legal and pertinent, fairly and impartially stated to the jury, and the deductions and arguments therefrom legitimate and candid. If in the prosecution it should happen, by inadvertent or hasty expression or otherwise, that improper and injurious statements are made to the jury, it is the duty of the offending party to make it appear by the record that nothing reasonably proper to be done was omitted in order to rectify the wrong and restore to the trial the fairness of which he presumably divested it.”
*285In Tucker v. Henniker, 41 N. H. 317, 325, the court used this language:
“When counsel are permitted to state facts in argument, and to comment upon them, the usage of courts regulating trials is departed from, the laws of evidence are violated, and the full benefit of trial by jury is ' denied. It may be said, in answer to these views, that the statements of counsel are not evidence; that,the court is bound so to instruct the jury, and that they are sworn to render their verdict only according to evidence. All this is true; yet the necessary effect is to bring the statements of counsel to bear upon the verdict with more or less force, according to circumstances; and if they in the slightest degree influence the finding, the law is violated, and the purity and impartiality of the trial tarnished and weakened. If not evidence, then manifestly the jury have nothing to do with them, and the advocate has no right to make them. It is unreasonable to believe the jury will entirely disregard them. They may struggle to disregard them; they may think they have done so, and still be led involuntarily to shape their verdict under their influence. That influence will be greater or less, according to the- character of the counsel, his skill and adroitness' in argument, and the force and naturalness with which he is able to connect the facts he states with the evidence and circumstances of the case. To an extent not definable, yet to a dangerous extent, they unavoidably operate as evidence which must more or less influence the minds of the jury, not given under oath, without cross-examination, and irrespective of all those precautionary rules by which competency and pertinency are tested.”
In State v. Gutekunst, 24 Kan. 252, the court said:
“Where counsel refers to pertinent facts not before the jury, or appeals to prejudices foreign to the case, it is the duty of the court to stop him then and there. The court need not and ought not to wait to hear objection from opposing counsel. The dignity *286of the court, the decorum of the trial, the interest of truth and justice forbid license of speech in arguments tc jurors outside of the proper scope of professional discussion. We conclude with the words of Mr. Justice Valentine, speaking for the court, in State v. Comstock, 20 Kan. 655: ‘Courts ought to confine counsel strictly within the facts of the case; and if counsel persistently go outside of the facts in their argument to the jury, then the court should punish them by fine and imprisonment; and if they should obtain a verdict by this means, then the court should set such verdict aside.’ ”
The following excerpt is taken from the language of the court in People v. Aikin, 66 Mich. 460 (33 N. W. 821, 829, 11 Am. St. Rep. 512, 527):
“There can be nothing gained in the end by an overzealous and unfair perversion of facts, in order to convict an accused person of a crime of which the prosecutor may have good reason to believe him guilty, and which, as in this case, may be hard to establish by the ordinary and established methods of procedure. While the zeal of the prosecutor may be well excused, and the hot and bitter language that comes from the heart, involuntarily, of one who is thoroughly impressed with the heinousness of the crime and the guilt of the respondent, is to be expected in such cases, it is nevertheless the duty of the court sitting impartially between the people and the prisoner to check and control any intemperance of zeal or language that is not warranted by the facts and circumstances shown by the proofs. If this is done, as it was not in this case, the final court of review, removed entirely from the passion and prejudice that generally surround the trial in the lower courts of cases of this nature, will see to it that the injustice is corrected, and a new trial granted.
“By this permission of unfair and unjust conduct on the part of the public prosecutor or his' assistants, not only is the course of justice perverted, but added cost and delay are the natural consequences *287of the attempt of the court of last resort to give to every citizen accused of crime the protection granted by the constitution, — a fair trial before an impartial jury.
“It must also be remembered, that however heinous the crime, and however difficult it may be to establish it by the usual and approved means of procedure, and no matter how firmly the public prosecutor and the community at large may be satisfied of the guilt of the accused, and even though in fact he may be guilty, the rules and methods of trial permitted to be relaxed or disregarded in his particular case, with perhaps the laudable object and desire that justice may be done, must, nevertheless, as a natural consequence of the ways of our jurisprudence, appear hereafter as so relaxed or disregarded as precedents to be used against all persons accused of crime, to vex the innocent as well as the guilty. There is therefore no safety and no justice in allowing the supposed merits of a particular case to override and set aside, even for a moment, the barriers that our constitution and laws have hedged about the citizen when arraigned and put upon trial for an alleged crime.”
Precedents sustaining the same doctrine could be cited almost without number.
Whether designedly, or inadvertently in the heat of argument, the prosecutor misrepresented the testimony, saying Dutton and Jackson asserted that the defendant was at the west side, when in fact they both said they did not know who the man was whom they saw there. If we may call black white, then only is the district attorney’s statement in accord with the testimony. Against the explicit objection of' the defendant’s counsel the court refused relief and left the whole matter to the jury in palpable violation of the doctrine of State v. Blodgett, 50 Or. 329, 342 (92 Pac. 820, 825), and State v. Hatcher, *28829 Or. 309, 315 (44 Pac. 584, 586), decided heretofore in this court.
All the testimony about the action of the unidentilled man on the west side of the defendant’s premises should have been kept out of the case because that transaction had no necessary connection with the admitted homicide. It is not within the doctrine of State v. La Rose, 54 Or. 555 (104 Pac. 299), cited in the majority opinion. There the murder was committed by the use of a piece of rusty gas-pipe wrapped in paper. As it was proved that this method of homicide was novel and unusual, the court received evidence of other practically identical assaults in the immediate vicinity of the place where was committed the one in question, in one of which the defendant was identified. On this ground alone this court justified the action of the Circuit Court, putting the case under the fourth division of the classification delineated by Mr. Justice Moore in State v. O’Donnell, 36 Or. 222 (61 Pac. 892).
In the. instant case there is nothing novel or peculiar about pointing the gun that would tend to isolate the defendant from all other individuals who did the same act. It is believed to be the universal rule that those who slay others by the use of a firearm point the weapon toward the victim, and so there is nothing to put this case into the category of exceptions mentioned by Mr. Justice Moore. But if we consider that the evidence was admissible, it was gross error for the district attorney even unintentionally to misstate the evidence, and it was still more erroneous for the court to make the ruling it did and in the language used. It was wrong for it to be left to the jury to decide whether the statement of the district attorney was relevant or not. The language *289of the court gave sanction and credence to the unwarranted statement of the district attorney and of itself constitutes reversible error, as taught by the practically unanimous precedents from the earliest times.
Another assignment of error relates to testimony given in rebuttal by the witness Patrick on behalf of the state. Over the objection of the defendant, the witness was allowed to state that during the day immediately preceding the night of the shooting he had a conversation with the decedent about watching the road. The witness went on to testify as follows:
“He made the statement'that he was going over and hide and watch until whoever was putting up the fence came up and then he would run out and see if he could identify them the same as you try to identify everyone on the street, to get close enough to do that was his idea, he thought maybe the party that was putting it up would run so quick he could not get to see him; he was going to run out so quick he could get there in time to see who the party was.
“Q. He was unable — state whether or not he was able to run very fast.
“A. He was lame in one foot, a little lame, and owing to that he doubted whether he„ could get out there.
“Q. Was there any further plan or procedure entered into at that time as to what he would do further in case- anything would happen?
“A. I asked him what he would do if he did not run. ’ ’
The defendant’s counsel at that point objected to the conversation being detailed, but the court directed the witness to answer, allowing an exception to the defendant. The witness answered:
“I asked him what he would do if they would run. Well he says, ‘They won’t run because they won’t *290want to be identified.’ Well I says, i Supposing they commence to shoot.’ Well, he says, ‘I will shoot, too, then.’ ”
Throughout the case the prosecution brought to the fore the theory that all these individuals poncerned in the opening of the road, including the decedent, were on the scene simply for the purpose of detecting who was laying up rails across the supposed road. No intimation is given in the testimony that the defendant knew anything of the purpose of the men who appeared on the west side of his premises and claim to have discovered an unknown man at the fence, who pointed his gun at them. Neither is there imputed to him any knowledge of the fact, if it was a fact, that the decedent was engaged in the same enterprise of watching the road on the east side. The prosecution thus seeks to bind the defendant by what at best may be said to have been the actual situation, whereas, under all the authorities, the defendant is entitled to rely upon the apparent danger of the situation as' viewed by a reasonable man in his circumstances under all the surrounding facts as they appeared to him. It is enough for illustration to cite the case of State v. Miller, 43 Or. 325 (74 Pac. 658), and the Oregon precedents there noted. Conceding for the sake of the discussion that it was the defendant on the west side of the field, whom Dutton and Jackson discovered, the defendant was there confronted with the situation of some prowlers on his own premises, without any knowledge, so far as the evidence discloses, of why they were there or where they went when they left. Within a short time afterward, according to the testimony, he was assailed by a fusilade of shots coming from an unknown source and fired from the ambush of the trees outside of his *291.premises on the east side. He was still, on his own ground. It it true, he was carrying his rifle, but he was in the exercise of a right especially guaranteed to him by our Constitution, to bear arms for his own defense: Const., Art. I, § 27. Attacked, as the testimony shows, from ambush without knowledge of the number or character of his assailants, he had the right to act upon the appearance of danger thus brought about. He was not bound or controlled by the actual purposes of the decedent, which to him were unknown and which he had no means of ascertaining. To admit this testimony is a misapplication of the doctrine of the majority opinion in State v. Farnam, 82 Or. 211 (161 Pac. 417, Ann. Cas. 1918A, 318). There, one of the principal questions in the case was the identity of the charred remains found in a barn which had been burned.. It was important to show that the decedent, Edna Morgan, had gone to that barn with the defendant, and hence the majority of the court decided that the state was entitled to show that on the day previous to the homicide she had said she could not go home with some girl friends of hers, because the defendant was coming to see her. Here, no such situation arises. No question was made about the identity of the decedent. The homicide was admitted. The defendant relied upon self-defense. Hnder these circumstances to admit testimony such as was given by Patrick, and that, too, in rebuttal, is to allow an antagonist in anticipation of an affray to make a self-serving declaration to his friends of a harmless design on his part, when in fact he is going out to snipe at his adversary.
In principle, the situation presented is similar to that portrayed in Wirth v. Richter, 63 Or. 114 (126 *292Pac. 987). There Richter’s contention was that he had employed Wirth to attend a sale and buy a horse for the former, and that, having bought the horse for him, Wirth had overcharged him in the claim for reimbursement. Wirth maintained that he bought the horse on his own account and afterward sold it to Richter, and to sustain his theory offered to prove that before he went to the sale he stated to several people, but in the absence of Richter, that he, Wirth, was going to buy the animal for himself. The court, Mr. Justice Moore writing the opinion, said:
“The declarations undertaken to be proved were self-serving and, being no part of the res gestae, they were inadmissible.”
So here, the declarations of Stewart made in the absence and without the knowledge of Butler were self-serving, no part of the res gestae,' irrelevant and incompetent as against the defendant. If Stewart had lived and appeared as a witness for the state in a prosecution of Butler for assault with intent to kill, he would not have been permitted to state his previous declarations to other parties not in the presence and without the knowledge of the defendant. The fact that he died cannot in sound reason make those declarations competent evidence. Where the liberty of a defendant is involved, the rule of evidence ought to be at least as favorable to him as in a dispute about a horse trade.
In the absence of any showing whatever that the defendant knew the alleged peaceful purpose of the decedent, such testimony cannot properly be admitted against him. The whole theory of the prosecution was to control the defendant by the possibly harmless attitude of the people who were prowling about his premises at night, whereas the consensus *293of authority is that the defendant is entitled to act upon the reasonable appearance of danger, as it would seem to a reasonable man in his situation at the time, although there was in fact no danger, as the sequel would prove.
The majority opinion sanctions a gross misrepresentation of the testimony by the prosecutor, a practice condemned by a great multitude of precedents, including our own decisions. It authorizes a judge to lecture the jury, a co-ordinate branch of his court, as though it were composed of willful school-boys and to dragoon it into a verdict. It compels a defendant at his peril to be able to show in his defense that his assailant intended to commit a felony or that the appearances were indicative of felonious intent, irrespective of the fact that great bodily harm may be inflicted upon an individual without the commission of any actual felony, and lastly, the defendant is bound by what his antagonist may have previously said in a self-serving declaration, without regard to the appearances of danger created by the latter.
For these reasons I dissent from the conclusions of the majority of the court.