concurring in the judgment of reversal, but not upon the grounds stated in the majority opinion.
I agree with my Brethren that this case ought to be reversed, but I do not agree with them as'to the grounds upon which the reversal should be placed. Nor do I agree with them as to all propositions of law which they have announced, nor that they have “in substance quoted all the evidence bearing on” the question of abandonment. I will therefore, as this is an important case, state my views respecting the main questions presented.
As shown by the record, the only person who was present at *54the time of the commission of the offense charged, and who is now living, is the defendant, and from his testimony, and confession which was admitted in evidence, it appears that on the night of January 6, 1904, he went to the corner of Thirteenth East and Second South streets, Salt Lake City, for the purpose of “holding up” a street car with intent to commit robbery; that he went to the scene of the hold-up, placed a handkerchief over his face as a mask, boarded the car, and, with a 45-caliber revolver in hand, ordered the conductor and motorman, there being no other person in the car, to hold up their hands; that one of the men, who also had a gun, told him he would better hold up his hands; that, realizing that the men were not excited and were going to make a fight, the defendant put his gun down by his side and started to back out of the car, but, as he attempted to turn, near the door, he fell down against the seat of the car; that as soon as he fell his victims took hold of him, and Mr. Gleason tried several times to shoot him, but his gun missed fire each time; that in the scuffle which followed he shot and killed Mr Gleason, for whose death he is now called upon to answer; that then, in attempting to escape from the car, he shot and fatally wounded Mr. Brighton, who was with Mr. Gleason; and that on January 10, 1904, after he was arrested for the offense, the defendant made a confession that he killed the two men as a result of his attempt to perpetrate a robbery. In addition to these facts and to the testimony quoted in the opinion of the majority, there is other evidence in the record which has bearing upon the questions presented and discussed in that opinion, of which evidence, testimony of the defendant, as follows, forms a part: “Gleason was a little east when he used the pistol; we were in the extreme south end of the car. Gleason came up and pointed the pistol at my left eye; I looked right at the pistol; I saw his finger work; I heard the clicking noise; I was positive he was going to fire; I closed both eyes right tight, expecting it was the last minute — last act of my life. At that time I was just about on one knee; there was nothing to prevent me from shooting Mr. Gleason; I could have killed him; I was sure he was going to kill me. *55When they first took bold of me I made an effort to speak to them; I tried to tell them, when he started to put the gun down, not to kill me, I was willing to give up. I am not positive whether from what I said I made it clear: I stutter when I am badly excited; at times I cannot speak on that account ; I have a very bad heart; it is hereditary in the family. During the time that Gleason and Brighton were coming the twenty feet to me I could have turned around and killed both of them; I made no effort to injure them in any way; I have always had a great horror of killing a man; I did not want to hurt them; I did not go there for the purpose of hurting them; I had no intention of killing either one of them, or of injuring them in any way. After Gleason had pointed the pistol at my eye and snapped it, I regained my feet; I was holding my gun off in iny right away from him and to the south; Gleason stepped back and took his gun in both hands; he seemed to be working with it very rapidly; he pointed it toward my left side; as he pointed the pistol I had my gun up; the thought entered my mind ‘If I could hit this man’s arm, it would likely prevent him from firing,’ so I started to pull down with the gun with the intention of trying to hit his arm; Mr. Brighton took hold of my arm and gave me a shove, and at the same time wrenched me toward Gleason; I was thrown hard against Gleason; it turned Mr. Gleason around; I cocked the pistol at the time I thought of shooting his arm; I did not have the pistol pointed toward Gleason when Brighton caught hold of me; Gleason was turned round toward the north at the same time Brighton put his hand around my head, so that I could not see, as he did so, the gun was discharged; I did not see Gleason at the time.” Such is the character of the evidence appearing- in the record.
The appellant, among other things, contends that the judge of the city court, who bound him over to the district court, had no jurisdiction as a committing magistrate, under the Constitution and laws of this State, and that therefore the subsequent proceedings in the district court and his conviction were unlawful and void. The city judge acted in this cause under *56authority of section 14, chapter 109, page 113, Session Laws, 1901, which section provides:
“The city courts shall have exclusive original jurisdiction of cases arising under, or by reason of the violation of any city ordinances, and shall have the same powers and jurisdiction as justices of the peace in all other criminal actions, and the judges of said courts shall be magistrates, with all powers and jurisdiction of justices of the peace as magistrates.”
It is conceded by the appellant that if the provisions of the act are constitutional the city judge had power to conduct the preliminary hearing in question, but it is insisted that this section is in contravention of the Constitution and void. The provisions of the organic law, cited and relied upon as affecting such result, are found in sections 1 and 21, article 8, Constitution. Section 1 reads:
“The judicial power of the state shall be vested in the Senate sitting as a court of impeachment, in a Supreme Court, in district courts, in justices of the peace, and such other courts inferior to the Supreme Court as may be established by law.”
It is quite clear that under this section the Legislature had the right to establish city courts, like the one in question, which are inferior to the Supreme Court, and confer upon them judicial power which they must exercise in accordance with the provisions of law. Undoubtedly the conducting of preliminary hearings of persons charged with crime, by a court or magistrate, is the exercise of judicial power, which is not exclusive in the Supreme Court, and therefore, under this section of the fundamental law, the Legislature would have the right to confer upon inferior courts of the class in question that power, to be exercised concurrently with other courts. But the appellant contends that when this section is construed with section 21 of the Constitution, above referred to, the conferring of power to conduct such preliminary hear*57ings upon inferior courts, which the Legislature may create by virtue of section 1, is inhibited. Section 21 reads:
“Judges of the Supreme Court, district courts and justices of the peace, shall be conservators of the peace, and may hold preliminary examinations in cases of felony.”
Counsel for the appellant insists that the word “may,” employed in this section, must be construed, to mean “shall;” that, when so construed, exclusive jurisdiction to hold preliminary examinations in cases of felony is vested in the courts mentioned in this section; and that the maxim, “expressio unius est exclusio alterius ” applies-. This construction of section 21, thus contended for, would prohibit the Legislature from conferring a power which, as has been seen, it clearly may confer under the provisions of section 1, and would obviously render the two sections repugnant to each other. Such an interpretation would be a violation of the familiar rule of constitutional construction that, if possible, all parts of the instrument must be so construed as to render them harmonious with each other, and so as to give effect to each part.
“Where provisions seem to conflict, a construction which will harmonize them, if practicable, will be adopted, and in construing them it must be presumed that the framers of the instrument used the words in their ordinary and natural sense. One provision of a Constitution will not be permitted to defeat another if by any reasonable interpretation both can be given effect.” (State ex rel. Lewis, 26 Utah 120, 125, 72 Pac. 388; Cooley’s Const. Lim. (7 Ed.), pp. 91-94; 8 Cyc. 730.)
I have no disposition to depart from these principles and adopt an interpretation which would produce conflict between the two sections. Nor do I think the maxim referred to has any application here. By giving the word “may” its plain and ordinary meaning, attributing to it the sense in which it *58was employed by the framers of the Constitution, which is apparent from the context, the two sections are rendered entirely consistent and harmonious, and all the provisions will be given effect. The evident intention of section 21 was to confer power upon all the judges of the superior courts, as well as upon justices of the peace, to hold preliminary examinations in cases of felony, and not to prevent the enactment of a statute, like the one in question, which is valid under section 1. But even if this were otherwise, it could not avail the appellant in this case, because the city courts established by the statute in question are to all intents and purposes mere justices’ courts. Although they are denominated “city courts,” the judges thereof have substantially the same duties to perform as have justices of the peace. This court so decided in Nichols v. O. S. L. R. Co., (Utah), 78 Pac. 866, where it was said:
“The city judges are magistrates, but, while sitting as magistrates, they exercise the powers and jurisdiction applicable to justices of the peace.”
It was also, after having referred to the jurisdiction of city courts and of justices’ courts, there said:
“It will thus be observed that city courts are quite similar to justices’ courts, and that the office and duties of a city judge are substantially the same as the office and duties of a justice of the peace.”
In line with the ruling thus made, a city judge may hold preliminary hearings the same as a justice of the peace, and I see no reason to question the correctness of the holding in that case. Aside from that decision, however, I am of the opinion that the section of the statute above considered is a valid exercise of legislative power under our Constitution, and that the city judge had jurisdiction to hold the preliminary examination.
At the trial, the defendant appeared as a witness in his own behalf, and, after he had testified concerning a portion of his life and the circumstances connected with the perpetration of *59the crime charged against him, the prosecution, upon cross-examination, interrogated him as to other offenses, the proceedings concerning which are set out in the majority opinion. From those proceedings it will be noticed that the prisoner, as to all the questions thus propounded except one, claimed his constitutional privileges which exempted him from answering criminative or degrading questions, and was thereupon excused from answering by the court. It will also be noticed that the court ruled that the privilege was personal to the defendant — witness—and that his counsel could not claim it for him. The question which the witness was required to answer was whether he deserted the United States army. This was objected to by his counsel as irrelevant, immaterial, and not proper cross-examination, but the witness did not claim his privilege. My Brethren state that the question thus presented is, “Was it incumbent upon the defendant to personally make the objections and claim his privilege from answering the questions asked respecting the commission of other crimes by him, or did he have the right to make his objections and claim his privilege and immunity through his counsel ?” Answéring this question, they hold that the action of the court in the premises was prejudicial error, and that counsel could malee the objections and claim' the privilege for the witness. I can perceive no reversible error in any of these rulings. It is true the questions, with the one exception, had a tendency to show that the prisoner was guilty of other crimes of the same kind as the one he was attempting to perpetrate at the time of the homicide, hut they were not for that reason incompetent. The questions were not asked for the purpose of establishing the prisoner’s guilt of the crime charged, but for the purpose of showing the character and credibility of the person whose statements the jury were to consider and weigh. The jury had a right to know what kind of a man he had been and was, and what kind of a life he was leading, to determine whether he could be believed under oath or not, or to what extent his statements, favorable or unfavorable to his defense, ought to receive .credit. The questions were therefore pertinent to the issue, and it was within the *60discretion of tlie trial court to require him to answer or not, except when be claimed, bis privilege, and, as will be seen by reference to tbe majority opinion, be was in no instance required to answer when be did claim bis privilege, although a court is not absolutely bound by every claim of privilege a witness may see fit to make. That tbe defense and jury understood that the questions were asked and tbe evidence received for tbe purpose of discrediting tbe witness, is clear from tbe defendant’s objection quoted in the prevailing opinion, in which objection be stated that tbe question referred to “is incompetent, irrelevant, and immaterial, to affect tbe credibility of tbe witness.” If tbe questions also were disparaging to bis cause, otherwise than effecting bis credibility, it was a consequence of bis election to waive bis constitutional right not to be compelled to give evidence, against himself by becoming a witness in bis own behalf. That right was personal to tbe prisoner, a personal right which be could waive, as decided by this court in State v. Mortensen, 26 Utah 312, 13 Pac. 562, 633. If Such highway robbers and murderers who ply their trade under cover of darkness and secrecy, with no one present but tbe unfortunate victim, where tbe result is, as in this instance, with no one left to tell tbe story to tbe court and jury, except tbe perpetrator of tbe crime, are to be thus shielded, by withdrawing from tbe prosecution tbe right to 'cross-examine, by judicial decision, except as to matters concerning which tbe accused was examined in chief, and as to matters connected immediately with tbe particular offense charged, then this court must usurp the functions of tbe Legislature, and by so doing will render this state a fertile field for tbe perpetration of crime. If there was legislation in this judisdiction so limiting tbe right of cross-examination, and to tbe effect that an accused, upon becoming a witness, did not assume tbe character of an ordinary witness, but still, while a witness, retained merely bis character as defendant, then there might be some ground upon which to base such a decision, but we have no such legislation, and therefore tbe case from New York, quoted from extensively by my Brethren, ought not to be regarded as continuing.authority against the *61unanimous decisions of this court in the cases of People v. Hite, 8 Utah 461, 33 Pac. 254, and People v. Larsen, 10 Utah 13, 37 Pac. 258, which are in effect overruled by this decision, in face of the statute to the contrary, as will later herein be seen. I observe nothing in the record to warrant the statement, made in the prevailing opinion, that “it is apparent that the questions were not aslced, nor was the evidence sought to be elicited thereby, for the purpose of affecting his credibility as a witness or the weight of his testimony, but were evidently intended to prejudice him before the jury.” If this is apparent from the record, then the judge before whom the case was tried must have known it, but the record suggests to my mind no such unfairness to the prisoner by the judge, nor by the prosecuting officer, as is thus imputed. In my judgment, the circumstances connected with this atrocious crime were such as justified the court in permitting this cross-examination, and, when the accused entered upon the perpetration of such a heinous offense, he did it in the face of the law as it had been declared by this court on several occasions. Of course, it is conceded by all that it is the solemn duty of the court, in the exercise of its large discretion respecting the limits of cross-examination, carefully to protect the rights of the accused, no matter how diabolical the crime charged against him may be; but it is equally its duty to guard the safety of the lives and property of the citizens from the vieiousness of criminals by a just and proper enforcement of the laws intended for the protection of society- — the individuals composing the community. I see no abuse of discretion by the court in this case. That court, with the defendant and witness in its immediate presence, had a better opportunity to judge of tlie motives which actuated the prosecution in the cross-examination of the witness, and of the justness and importance of permitting a more or less wide latitude in such examination for the purpose of arriving at the truth of the story of the defendant, than have we with the printed record before us. In such a case, uuless the record very clearly shows an abuse of discretion, this court ought not assume that the trial court acted in this behalf in a manner not warranted *62by law. I can observe in tbe rulings upon tbe questions under consideration no departure from tbe law of tbis jurisdiction that amounted to reversible error.
Tbe prisoner, waiving bis constitutional privilege, and taking advantage of tbe law wbicb permitted bim to testify in bis own behalf, left for tbe time being bis position as defendant, and assumed that of a witness in tbe case. Having done tbis, be became subject, for tbe time of bis examination, to tbe same rules, and was bound to submit to tbe same tests, which by law apply to other witnesses. Tbis is so under our statute, wbicb in section 5015, Bevised Statutes 1898, provides:
“If a defendant offers himself as a witness be may be cross-examined by tbe counsel for tbe state tbe same as any other witness. His neglect or refusal to be a witness shall not in any manner prejudice bim, nor be used against bim on tbe trial or proceeding.”
Here is a plain provision of statute authorizing in express terms, tbe counsel for tbe State to cross-examine such a defendant “tbe same as any other witness,” if be offers himself as a witness, yet, in tbe face of tbis statute, my Brethren draw a distinction, existing neither in sound reason nor in law within tbis jurisdiction, between a defendant who is a witness and a witness who is not a defendant. As to tbe latter, they admit that“tke right to refuse to answer incriminating questions is a personal privilege of tbe witness which be can either exercise or waive,” while, as to tbe former, they say: “We do not understand tbe authorities to bold that when tbe witness is also tbe defendant in tbe case bis counsel cannot speak for bim and make tbe proper objections and protect bim in bis right and immunity from answering questions on cross-examination respecting tbe commission by bim of other .crimes wbicb are in no way connected with tbe one for which be is on trial.” With due respect for tbe understanding of my learned Brethren thus expressed, I am impelled to say that my examination of tbe authorities upon this subject has led me to an understanding exactly tbe opposite — that tbe author*63ities, under statutes libe or similar to ours, are practically unanimous in bolding that when a defendant offers bimself as a witness in his case he is subject to cross-examination the same as any other witness, and that his counsel cannot claim his privilege for him. A very strong reason for this rule is that counsel, in the nature of things, at least in many instances, in not familiar with the facts which induce the question and is not under oath, while the witness, with a knowledge of the facts in his own breast, is sworn and must answer under his oath; and, when such a witness so answers a question upon cross-examination as to a collateral matter, the state is bound by his answer and cannot impeach him.
As to the proposition that a defendant who offers himself as a witness is subject to cross-examination the same as any other witness, Mr* Underhill, in his work on Criminal Evidence (section 60), says:
“In states where the cross-examination of the ac-eaused is not by statute expressly limited to matters brought out on his direct examination, he may be cross-examined, not only upon matters strictly revelant to the issue, but upon those which are collateral and apparently irrelevant, and which are calculated only to test the credibility and weight of his testimony.”
This is supported by numerous authorities cited. And in section 61, Id., the author says:
“He may be questioned as to specific facts calculated to discredit him. Thus his previous arrest or indictment, his conviction of a felony, a previous imprisonment in a penitentiary or house of correction, his prior contradictory statements, disorderly actions, or the commission of offenses similar to that charged, attempts to bribe witnesses, or simulation of insanity, may all.be brought out by questions put to him on his cross-examination, to show what credit his evidence should receive.”
*64So, in 1 Green! Ev., section 444b, tbe author, speaking of the accused as a witness, says:
“Is his position as a witness so separable from his position as a defendant that what would be usable to impeach him as a witness, but would not be available against him merely as a defendant, may still be used? In particular, may his bad character be shown, may this character be searched into on cross-examination, may the other tests applicable to witnesses be employed ? The answer, as policy clearly demands,is in the affirmative; for otherwise, if he were a false witness, the customary methods of exposing this would not be available, and the investigation of truth and the punishment of crime .would be defeated. These reasons have led to the general acceptance of the rule that an accused person taking the stand as a witness may be impeached precisely like any other witness, i. e., by reputation as evidence of character, by cross-examination to character, by conviction of crime and the like.”
In People v. Hite, 8 Utah 461, 33 Pac. 254, where the cross-examination took a wide range, Mr. Chief Justice Zane, speaking for the court, said:
“In his cross-examination the prosecuting attorney went still further back, and his inquiry descends still further into particulars. He interrogated the defendant as to transactions evidently for the purpose of testing his recollection and bringing to light conduct that would affect his credibility. It is the duty of the juror to judge of the credibility of thé witness, and to weigh his testimony in the light of his opportunities to know, to understand, and remember, and in view of his motives and his moral worth as evidenced by his conduct, and in view of his character established by his life, as well as by the light of experience and. reason. To enable the juror to judge of the cred*65ibility of tbe witness, rigid cross-examinations are sometimes necessary, and- mncb latitude 'of inquiry should be permitted. Tbe investigation of truth is sometimes attended with humiliation and disgrace of the witness and appears to be remorseless.”
So in People v. Casey, 72 N. Y. 393, Mr. Justice Earl said:
“Upon the trial the prisoner was a witness in his own behalf, and it is now complained that the counsel for the people, upon cross-examination, was permitted to question him as to other altercations in which he had been engaged, and other assaults which he had committed. The complaint is not well founded. When a prisoner offers himself as a witness in his own behalf, he is subject to the same rules upon cross-examination as any other witness. He may be asked questions disclosing his past life and conduct, and thus impairing his credibility. Such questions may tend to show that he has before been guilty of the same crime as that which he is upon trial, but they are not on that account incompetent. When he offers himself as a witness, and seeks to take the benefit of the statute which authorizes him to testify in his own behalf, he takes the hazard of such questions. He must determine, before he offers himself, whether his examination will benefit or injure him-. The extent to which such an examination may go to test the witness’ credibility is' largely in the discretion of the trial court.”
In Hanoff v. The State, 37 Ohio St. 178, 41 Am. Rep. 496, it was said:
“If error would not lie to a like cross-examination of any other witness qs to his previous conduct, for the purpose of affecting his credibility, we see no reason why it should when a party himself is the witness. The object and importance of a cross-ex-*66animation of a defendant is tbe same, and therefore the rules governing it should be the same. In matters collateral and irrelevant to the particular charge, it is difficult to define with precision the limits of such cross-examination when the object is to test the credibility of a witness. In this court the question may be regarded as settled that the limits to which a witness may be cross-examined on matters not revelvant to the issue, for the purpose of judging of his character and credit from his own voluntary admissions, rest in the sound discretion of the court trying the cause. Such questions may be allowed where there is reason to believe it will tend to the ends of justice, but they ought to be excluded when a disparaging course of examination seems unjust to the witness and uncalled for by the circumstances of the case.”
Likewise, in People v. Conroy, 153 N. Y. 174, 47 N. E. 258, it was said:
“Defendant’s counsel complain that defendant on cross-examination was asked as to specific immoral acts, and that, although he refused to answer, he was greatly prejudiced. When a defendant takes the witness stand he subjects himself to a searching cross-examination. The district attorney is permitted a very wide range as to the topics of inquiry, and it is a peril a defendant assumes when consenting to become a witness in his own behalf.”
In Wilber v. Flood, 16 Mich. 40, 93 Am. Dec. 203, it was held:
“The cross-examination of a witness is not confined to matters in issue, but may include such collateral questions as will enable the jury to obtain an insight into his character and history, and thus to judge of his credibility; and the court has power to guard against the abuse of this right, when nec-cessary.”
*67So, in Commonwealth v. Nichols, 114 Mass. 285, 19 Am. Rep. 346, Mr. Chief Justice Gray said:
“A party to the cause, wbo yountarily offers himself as a witness, is entitled to no more, and in some respects to less, protection than a third person who testifies in obedience to a summons. A party taking the stand as a witness in his own behalf may be cross-examined in relation to a communication between himself and his counsel, as to which the latter would not be allowed to testify. (Woburn v. Henshaw, 101 Mass. 193, 3 Am. Rep. 333.) And a refusal to answer a question, on the ground that it might incriminate him, is competent evidence against him, when it would not be against an ordinary witness.”
In Territory v. O’Hare, 1 N. D. 30, 44 N. W. 1003, it was said:
“We hold that the right of cross-examination as to outside matters of fact which affect the general character of the witness, and tend to degrade him, and affect his credibility, is, within the limits of a sound judicial discretion, a salutary rule.”
In State v. Witham, 72 Me. 531, it was said:
“When the accused volunteers to testify in his own behalf at all upon the issue whether the alleged crime has been committed or not, he volunteers to testify in full. His oath in such case requires it. If he waives the constitutional privilege at all, he waives it all. He cannot retire under shelter when danger comes. The door opened by him is shut against retreat. The object of all examinations is to elicit the whole truth, and not a part of it. Hnder, our rule, the cross-examination of a witness is not confined to the matters inquired of in chief. A party testifying as his own witness can be examined just as any other witness could be in any re*68spect material and relevant to the issue. To some extent, more may be elicited from him than from a common witness, because his statements are admissions as well as testimony. Any other construction would render the statute a shield to crime and criminals.”
(1 Greenl. Ev., sec. 444b, 449; Underhill, Crim. Ev., sec. 60-62; Whart. Crim. Ev., secs. 430, 432, 433; Commonwealth v. Smith, 163 Mass. 411, 40 N. E. 189; Wroe v. The State, 20 Ohio St. 460; People v. Clark, 102 N. Y. 735, 8 N. E. 38; People v. Robinson, 86 Mich. 415, 49 N. W. 260; Yankee v. The State, 51 Wis. 464, 8 N. W. 276; People v. Foote, 93 Mich. 38, 52 N. W. 1036; Stalcup v. State, 146 Ind. 270, 45 N. E. 334; The State v. Pfefferle, 36 Kan. 90, 12 Pac. 406; State v. Merriman [S. C.], 13 S. E. 328; People v. Mather, 4 Wend. 229, 21 Am. Dec. 122; Frank v. State, [Wis.], 68 N .W. 657; State v. Ober, 52 N. H. 459, 13 Am. Rep. 88; Mc Keone v. People, 6 Colo. 346; Connors v. People, 50 N. Y. 240; Commonwealth v. Tolliver, 119 Mass. 312; Mitchell v. The State, 94 Ala. 68, 10 South. 518.)
Many other authorities, to the same effect as the foregoing, might.be cited here, but it is not deemed necessary.
It seems almost too clear for argument that under our statute, and the decisions of the courts made under similar statutes, and upon the authority of the text-writers, when the defendant assumed the character of a witness in his own behalf he became subject to cross-examination the same as any ordinary witness, and that the mere fact that he was also defendant conferred upon him no privilege, respecting his answers to criminating or degrading questions, not enjoyed by or applicable to any other witness, there being no statute restricting the right of cross-examination to matters inquired of in the examination in chief. He was not compelled to submit himself as a witness, nor to answer incriminating or degrading questions. Nor did the court coerce him when he claimed his privilege. The answering of such questions in a criminal case is purely a personal privilege of the witness, as here-inbefore stated, and as the authorities, to which reference will *69be made herein, show; and, in accordance with sound reason under an overwhelming weight of authority, counsel can neither claim the privilege nor waive it for him.
Such a defendant is bound to determine for himself, before he assumes the character of a witness, whether his examination will benefit or injure him. His refusal to become a witness cannot, under the statute, be used to his prejudice. And this is what this court, in line with the great weight of authority, decided in People v. Larsen, 10 Utah 143, 37 Pac. 258, where is was said:
“This immunity from answering degrading or criminative interrogatories or cross-interrogatories is purely a personal privilege of the witness, which he can claim or waive at his pleasure. His counsel can neither claim nor waive it for him. It is a privilege of crime, and he alone can know whether an answer will subject him to punishment. The witness may waive it, and answer, regardless of any objection of counsel. If he declines to answer, that circumstance cannot be permitted to draw an inference of the truth of the fact to which the question relates. When he chooses to become a witness in the case, he leaves his position as defendant, and while he is upon the stand he is subject to the same rules, and must submit to the same tests, which by law are applicable to other witnesses.”
But my Brethren say: “We have been able to find but three cases wrhich go to the extent of holding that, when a defendant takes the witness stand in his own behalf, he, for the time being, in effect, ceases to be a defendant, and forfeits his constitutional right to the assistance of counsel.” They then refer to People v. Larsen, supra, State v. Wentworth, 65 Me. 234, 20 Am. Rep. 688, and State v. Kent, 5 N. D. 516, 67 N. W. 1052, 35 L. R. A. 518, as the three cases. These cases hold, same as many others, as will be seen, that the privilege of exemption from answering degrading or criminative questions upon cross-examination is a privi*70lege of the witness alone, and that counsel cannot claim or waive it for him; but neither of them, nor any other case to which my attention has ever been invited, has held that a defendant who offers himself as a witness in his own behalf thereby “forfeits his constitutional right to the assistance of counsel.” If my Brethren intended to limit this comprehensive expression to the time of the examination of the witness, then I answer that, under our Constitution and laws as they have hitherto existed and been construed, such a witness has no constitutional or other right to have counsel make the objection and claim the privilege for him, and that therefore he can forfeit no such right. They also say that the Appellate Court of New York passed upon this identical question in People v. Brown, 72 N. Y. 571, 28 Am. Rep. 183, and it may be conceded that the language which they quote from the case sustains their views, but that case was evidently decided under different provisions of law from ours, and they have cited no other case which sustains their position upon this question.
Referring to the practice in New York as it once existed, the author, in I G-reenl. Ev., sec. 444b, says:
“It was at one time supposed in New York that the scope of cross-examination to misconduct was narrower for a defendant witness than for others; but this limitation seems no longer to be law in that jurisdiction nor elsewhere.”
This statement of the learned author is entirely justified by the decisions from that State anterior and subsequent to the case of People v. Brown, relied upon by my associates in this case. In fact, no decision has come to my attention, from that state or any other, which, as to this precise question, has followed People v. Brown, except the one herein. Notwithstanding the high regard which is due the decisions of the eminent jurist who delivered that opinion, the doctrine announced therein does not appear to be supported by the decisions of his own State, nor elsewhere. The doctrine is based upon the assumption that there is a distinction between an ordinary *71witness and a defendant -witness, as will be noticed from the opinion, where it is said: “I understand it to be conceded by the counsel for the people that this objection would be valid if it bad been taken by the witness himself instead of the counsel, and the case shows that the county judge entertained the same view. Such is the rule as to a witness who is not himself a party. It is, then, a question between the witness and the court, with which the party has nothing to do, and with which the counsel of the party has no right to interfere. (Cloyes v. Thayer, 3 Hill, 564; Southard v. Rexford, 6 Cow. 254.)” In the former case cited it was held: “The witness’ privilege is personal;” and in the latter: “His privilege is personal only.” The later New Torlc cases show that no such distinction exists under laws similar to our own.
In People v. Tice, 131 N. Y. 651, 30 N. E. 494, 15 L. R. A. 669, it was said:
“The differences in the decisions in different states are attributable in part to a difference in the language of the statutes. Some of the statutes in terms limit the cross-examination to matters referred to in the examination in chief. In neither of the two classes of decisions is there, we apprehend, any invasion of the constitutional provision referred to. The accused is not compelled to become a witness. When he avails himself of the privilege conferred by statute, he subjects himself voluntarily to the situation of any other witness, and if he is compelled to answer disparaging questions, or to give evidence relevant to the issue which is injurious, it is the consequence of an election which he makes to become a witness, which involves a waiver on his part at that time of the constitutional exemption. If he accepts the privilege given by the statute, he takes it with its attendant dangers. ‘His own act is the primary cause, and, if that is voluntary, he has no reason to complain.’ (Church, Ch. J., in Connors v. People, 50 N. Y. 240.) The principle that an accused person who becomes a witness in his own be-*72balf thereby places himself in the attitude of any other witness in respect to the right of cross-examination has been announced in many cases in this court. (Brandon v. People, 42 N. Y. 265; Connors v. People, supra; Stover v. People 56 N. Y. 315; People v. Casey, 72 N. Y. 394.) The same rale has been declared in the courts of Massachusetts, Maine, New Hampshire, and other states, under statutes similar to the statute of this State. (Com. v. Mullen, 97 Mass. 545; State v. Witham, 72 Me. 531; State v. Oder, 52 N. H. 459, 13 Am. Rep. 88.)”
In this same case, page 657 of 131 N. Y., page 496 of 30 N. E. (15 L. R. A. 669), it was also said:
“The statute permits the accused to be a witness. This must mean a witness generally in the cause, and not that he may be a witness as to such matters only as to which he may choose to testify. This being the construction put by our courts upon the statute, there is no constitutional right infringed if the accused, having elected to take the stand as a witness, is subjected to the ordinary rules of examination. 'The range and extent of the cross-examination is within the discretion of the trial judge, provided only that it relates to relevant matters, or to matters affecting credibility. The trial judge may properly restrict the cross-examination of accused persons within narrower limits than in ordinary cases, but the latitude allowed is a matter for the trial judge.’ ”
So, in People v. Webster, 139 N. Y. 73, 34 N. E. 730, it was said:
“It is now an elementary rule that a witness may be specially interrogated upon cross-examination in regard to any vicious or criminal act of his life, and may be compelled to answer unless he claims his *73privilege. A party wbo offers himself as a witness in a criminal cause is not exempt from tbe operation of tbe rule. He is not compelled to testify, and, if not examined, tbe law provides that it' shall not give rise to any presumption against bim. When be elects to become a witness, it is for all tbe purposes for wbieb a witness may be lawfully examined in tbe case, and be is not, in tbe constitutional sense, ‘compelled to be a witness against bimself,’ although, wben subjected to tbe test of a legitimate cross-examination, be may be required to make disclosures which tend to discredit or to incriminate him.” (People v. Conroy, 153 N. Y. 174, 187, 47 N. E. 258.)
Other New York cases are to tbe same effect. Text-writers and decisions from other states, under similar constitutional and statutory provisions, also show that such a privilege is personal, whether tbe witness is tbe defendant or not.
In Greenl. Ev., section 469d, tbe author says:
“Tbe making of tbe claim, and its determination, being intended solely for tbe witness’ sake, tbe privilege is bis own, and not that of the party; counsel, therefore, will not be allowed to make tbe objection, nor, if tbe court erroneously disregards tbe privilege, may tbe party complain of tbe error.”
In Wbart. Crim. Ev., sec. 465, it is said:
“The privilege just stated cannot be interposed by a party to tbe issue. It must be claimed by tbe witness in order to be available.”
In Roscoe’s Crim. Ev., p. 233, after a review of authorities, it was said:
“It will thus be seen that in all cases where tbe point has directly arisen, it has been held that tbe bare oath of tbe witness that be is endangered by being compelled to answer is not to be considered as necessarily sufficient, but that tbe judge is to use *74bis discretion, whether he will grant the privilege or not. Of course, the witness must always pledge his oath that he will incur risk; and there are innumerable cases in which a judge would be properly satisfied, without further inquiry, but, if he is not Satisfied, he is not precluded from further investigation.”
In State v. Kent, 5 N. D. 516, 541, 556, 67 N. W. 1052, 1058, 1063, 35 L. R. A. 518, a well-considered case, in which the New York case is commented upon, it was said:
“It is also well established that, when a defendant in a criminal case voluntarily takes the witness stand in his own behalf, he thereby subjects himself to the same rules of cross-examination that govern other witnesses, with the exception that his privileges are to some extent curtailed, in that he is not only required to answer any relevant and proper question that "may tend to convict him of any collateral offense, when such answer also tends to convict him of the offense for which he is being tried, or bears upon the issues involved in such case. . . . The claim of privilege, when made by counsel alone, even when, as in this case, counsel says, The privilege is claimed by both counsel and the defendant/ is not, and cannot be, supported by the oath of the witness. This, as we have seen, is demanded both by authority and reason, and we can conceive of no sufficient ground to support an exception in favor of a party. (State v. Wentworth, 65 Me. 234, 20 Am. Rep. 688.) No doubt, counsel have the right, in protecting their clients, to raise the point, and call the attention of the court to the matter, and demand that the witness be apprised of his rights, and given an opportunity to make the claim under oath, if he so elect. We think this would be the proper method of raising the point in these cases. Of course, the witness might do it without the intervention of *75counsel. A refusal of the trial court to properly instruct a witness when thus requested by his counsel might constitute reversible error. We hold, then, that the claim of privilege, by reason of the crim-inating nature of the answer sought, was not made with sufficient definiteness to apprise the court of the nature of the claimand, further, that the claim cannot be made by counsel, even when the witness is also a party.”
In Samuel v. The People, 164 Ill. 379, 45 N. E. 728, it was said:
“The privilege is that of the witness, and not of the party, and counsel will not be allowed to make the objection. The privilege cannot be interposed by either party to the action, nor can either party raise the objection on behalf of the witness. It must be claimed by the witness in order to be available, and it lies with him to claim it or not, as he may choose. ■ As the privilege is personal to the witness, he may waive it and elect to testify.”
In State v. Wentworth, 65 Me. 234, 20 Am. Hep. 688, Mr. Chief Justice Appleton said:
“The defendant, going upon the stand as a ‘com petent witness,’ was inquired about as to certain sales made by him prior to the one charged in the complaint, to which he made answers admitting prior sales by himself. The witness interposed no objection to answering the question because the answer might be self-criminative, but the objection was taken by the counsel for the defendant and by him alone. Now, if there is anything well settled, it is that the privilege of exemption from answering interrogatories, which, being ánswered truly, would disclose the guilt of the person interrogated, is the privilege of the witness alone. It is granted because of crime and for its impunity, lest, by means of and *76in consequence of the proof furnished by the answer, the witness may hereafter be subjected to the punishment which the law has fixed to his criminal misconduct. It is the privilege of crime. The interests of justice would be little promoted by its enlargement. 'The privilege/ observes Nelson, C. J., in Cloyes v. Thayer, 3 Hill 564, ‘belongs exclusively to the witness, who may take the advantage of it, or not, at his pleasure. . . . The witness may waive it and testify, in spite of any objection coming from the party or his counsel.’ In Ward v. The People, 6 Hill 144, the court held that the public prosecutor has no right, in the trial of an indictment, to object that a question put to one of the witnesses called for an answer tending to expose him to criminal punishment; this being an objection which the witness alone is authorized to make. So, in State v. Foster, 3 Fost. 348, 55 Am. Dec. 191, it was to lay with the witness to claim the privilege or not, as he may choose. It is obvious that if the defendant is to be regarded, when testifying, only as a ‘competent witness/ which is what the statute makes him, ‘at his own request and not otherwise/ that the exemption from answering criminative cross-interrogation is personal, and the witntess alone can claim it.”
So, in Brandon v. The People, 42 N. Y. 265, where the question, “Have you ever been arrested for theft?” was put to the defendant witness on cross-examination and objected to by the defendant’s counsel, but the privilege not claimed by the witness, it was said:
“The question complained of was put to the witness for the purpose of impairing her credibility as a witness. It has been the practice of the courts of this State from a very early period to permit questions of this character to be put to the witness, and for the purpose indicated. Its abuse is guarded *77against in two modes: (1) By the privilege of the witness to decline to answer any question which may disgrace him, or may tend to charge him as a criminal. (2) By the power of the court, of its own motion, to prohibit an unreasonable or oppressive cross-examination. . . . She was not compelled to take this position, the statute declaring that the failure to testify should not create a _ presumption against her. She elected, however, to make herself a witness. She became and was a competent witness. For this purpose, she left her position as a defendant, and while upon the stand was subject to the same rules, and called upon to submit to the same tests, which could by law be applied to other witnesses. Her statements were made to the jury under the solemnity of an oath. In theory of law, this gave greater weight to her narration than if she had placed her simple declaration before the jury, unaccompanied by her oath. She cannot claim the advantages of the position of a witness and at the same time avoid its duties and responsibilities. If one so testifying should testify to a willful falsehood on a material point, I cannot doubt that the offense would be perjury. The character of party in the same cause would afford no defense to such an accusation.”
Likewise, in Morgan v. Halberstadt, 60 Fed. 592, 9 C. C. A. 147, it was said:
“It is a sufficient answer to the contention of plaintiff in error to refer to the well-settled principle that such privilege belongs exclusively to the witness. The party to the suit has no right to insist upon it, except when he-is himself a witness. And if the witness waives his privilege, or the court disregards it and requires him to answer, the party has no right to interfere or complain of the error.”
In the Burr trial (1 Burr’s Trial, 244), on the question *78whether the witness was privileged not to accuse himself, Mr. Chief Justice Marshall said:
“If the question be of such a description that an answer to it may or may not criminate the witness, according to the purport of that answer, it must rest with himself, who alone can tell what it would be, to answer the question or not. If, in such a case, he says upon his oath that the answer would criminate himself, the court can demand no other testimony of the fact.”
(1 Roscoe’s Crim. Ev., 323 et seq.; 3 Rice on Ev., pp. 296-314; Whart. Crim. Ev., sec. 473; 1 Greenl. Ev., sec. 469d; People v. Larsen, 10 Utah 143, 37 Pac. 258; Commonwealth v. Shaw, 4 Cush. 594, 50 Am. Dec. 813; Ingersol v. McWillie, 87 Tex, 647, 30 S. W. 869; State v. Butler, 47 S. C. 25, 24 S. E. 991; Roddy v. Finnegan, 43 Md. 490; Clark v. Reese, 35 Cal. 89; Floyd v. The State, 7 Tex. 215; Kirshner v. The State, 9 Wis. 140; Thomas v. The State, 103 Ind. 419, 2 N. E. 808; Treat v. Browning, 4 Conn. 408, 10 Am. Dec. 156; White v. The State, 52 Miss, 216; Lothrop v. Roberts, 16 Colo. 250, 27 Pac. 698; State v. Cohn, 9 Nev. 179; State v. Foster, 3 Fost. 348, 55 Am. Dec. 191.)
The same doctrine exists in England.
In 2 Taylor, Ev., section 1465, it is said:
“In all the cases hitherto put, where the witness is not compellable to answer or to produce documents, the privilege is his, and not that of the party; and, consequently, counsel in the cause will not be permitted to make the objection. Neither will the witness be allowed to employ counsel of his own to support his claim to protection. Nor even is the judge bound, as it would seem, to warn the witness of his right to demur to the question, though, in the exercise of his discretion, he may occasionally deem it proper to do so.”
*79So, in 1 Eoscoe’s Crim. Ev., 233, upon a review of English cases, it was said:
“It will thus be seen that, in all cases where the point has directly arisen, it has been held that the bare oath of the witness that he is endangered by being compelled to answer- is not to be considered as necessarily sufficient, but that the judge is to use his discretion whether he will grant the privilege or not. Of course, the witness must always pledge his oath that he will incur risk, and there are innumerable cases in which a judge would be properly satisfied with this -without further inquiry; but if he is not satisfied he is not precluded from further investigation.”
In Paxton v. Douglas, 16 Ves. 239, the Lord Chancellor said:
“My opinion at present is that the objection is not to putting the question, but to answering it when put; that the witness is before the master precisely in the situation of a witness called to give.his evidence personally, and the objection is not to the question, but to answering it. I therefore think, at present, that the interrogatories must be put to the witness, and it must be left to himself whether he will answer them or not.”
So, in East v. Chapman, 1 M. & M. 46, it was said:
“The counsel in a cause have no right to object, in favor of a witness, that the answer to a particular question renders him liable to punishment or forfeiture. Such objection belongs to the witness only.”
(2 Taylor, Ev., secs. 1465-1467; 1 Roscoe’s Crim. Ev., 232-234; Thomas v. Newton, 1 M. & M. 244; Fisher v. Reynolds, 12 C. B. 761; Adams v. Lloyd, 3 Hurlst. & Nor. 351; Parkhurst v. Lowton, 2 Swanst. 194.)
Ais to the question about having deserted the army, the record fails to show that the witness claimed his privilege, and *80tbe objection, in the form made, is, under the circumstances, not sound. After the defendant had shown, by his examination in chief, that he hailed from Missouri; that his people lived there; that he was in Idaho previous to his coming to Salt Lake City; that he was employed in Idaho, and purchased the pistol, with which he slew his victims there; and, after having further testified in detail concerning his criminal and felonious assault which resulted in the fatal conflict^ he being the only eyewitness left alive — the prosecution had a right to cross-examine him, as to his past life and career, for the purpose of throwing light upon his credibility as a witness. He could not, according to the former decisions of this court, sustained, as has been seen, by a great weight of authority, upon his own volition offer himself as a witness and testify to such portions of his life and conduct as might answer his purpose, and then complain of and wholly defeat a cross-examination as to parts which might not suit his purpose, although he could claim immunity from answering degrading or criminative questions as purely a personal privilege. Considering the examination in chief and the circumstances of this case, I perceive no abuse of discretion in overruling the objection to this question. This case was tried upon the theory of self-defense. The defendant, while admitting that he attempted to rob his victims, and that the killing of the deceased resulted from such attempt, claims that, before the fatal shots were fired, he had in good faith abandoned his felonious design, with an attempt to withdraw from the struggle, and that the deceased continued the affray with such fierceness that it became necessary to fire the fatal shots in order to save his own life. When the case was submitted to the jury, the defense presented several written requests to the court to chai’ge upon that theory, all of which were refused, without giving any instruction upon the particular point raised, and the refusal has been assigned as error.
The appellant insists that abandonment of the felonious design was the controlling question in the case, and constituted one of fact for the jury. The respondent contends that it appears from the defendant’s own testimony that all his actions *81constituted one continuous transaction, and that, after mating his criminal assault, there was no such abandonment of the conflict by him as justified him to kill in self-defense. Relating to the question here .presented, the defendant, in part, testified, substantially, that he entered the car in which the homicide was committed, and told his victims to hold up their hands; that the larger one obeyed, while the smaller one refused to do so, and said, “You had better put up yours,” he having a gun; that then the defendant, realizing that, if he continued, there would be a chance of hurting them, started to back out of the car, and put his gun down by his side, thinking they would know by that movement that he intended to leave; that, when he was within a couple of feet from the door, his feet, as he attempted to run, slipped, and he fell against the side of the seat; that as soon as he was in that position, and with the pistol in his right hand on the floor, the 'men made a rush for him, when he fired a shot, thinking that by doiiig so they would stop and not kill him; that they, however, fell upon him, and that JMEr. Gleason, with a loaded pistol, tried to shoot him, but for some reason the gun did not go off; that Mr. Gleason snapped at him two or three times; that to prevent Mr. Gleason from killing him he took aim at his arm to shoot and- break it, when the other man grabbed the defendant’s arm, and, pulling it around, the gun went off and the shot hit Mr. Gleason; that he had no intention to kill him, and did not know he had done so at the time; that then he wrenched himself loose from Mr. Brighton and tried to get out, but Mr. Brighton got between him and the door, and reached under his coat, the defendant thought, for a gun; that as Mr. Brighton reached under his coat defendant said to him, “Bor God’s sake, man! don’t kill me; I will give up,” but that he continued to keep his hand under his coat, and then he shot .him to make his escape; that, when they first took hold of him, defendant tried to tell Mr. Gleason, who had the gun, not to kill him, that he was willing to give up to him, Gleason, but whether he made it clear or not he did not know, on 'account of stuttering considerably because of the excite*82ment; that at times, when excited, he has that defect of speech; that if he had not thought that the men intended to kill him he never would have fired at Mr. Gleason’s arm; that he was willing at every moment of time, after he started to back out of the car, to give up and let them take him in preference to hurting them; and that neither of the men asked him to surrender or give up. With this and other evidence of similar import in the record, the defense, in writing, requested the court to charge the jury upon the question of • abandonment by the defendant of the felonious designs, and of an attempt by him to withdraw from the combat. All the requests of this character were refused. One of them reads as follows: “If you find from the evidence that Mr. Gleason was shot by the defendant after the attempt to rob had been volun tarily and in good faith abandoned by the defendant, and that Gleason was not at that time in danger of being robbed, and, by the conduct of the defendant, Mr. Gleason understood these facts, and that if Mr. Gleason afterwards assaulted the defendant in such a way as to induce in the defendant a reasonable belief that he was actually in danger of great bodily harm or of being killed, and if you believe that Mr. Gleason had his gun in his hand or hands and was working with it, and the defendant had reason to believe, and did believe, that Mr. Gleason intended to renew the attack upon him for the purpose of doing him great bodily harm or killing him, then the defendant would be justified in cocking his revolver and preparing to shoot Mr. Gleason in th¿ arm for the purpose of preventing such great bodily harm or killing, and if, while his gun was so cocked and in his hand, the gun in the hands of the defendant was accidentally discharged, either from the conduct of Mr. Gleason, or from any other cause, and Mr. Gleason was killed thereby, then the defendant would not be guilty of murder in the first degree.” The court not' only refused to give this and all other requests of similar tenor, but failed to charge the jury at all upon the precise subject to which its attention was thus called. While the several requests are subject to criticism because of the manner in which propositions of law are stated therein, still *83they sufficiently presented the subject for the court’s consideration. It must be assumed, therefore, that the court entertained the view that there Avas no evidence to warrant such an instruction, the view which seems to be entertained by my Brethren. I am of the opinion, however, that the evidence above referred to, whether true or false, was such as required the submission of the questions whether or not the defendant abandoned his original felonious undertaking and attempted to retreat in good faith, and, if so, whether his intentions in this regard were manifest to those whom he had assailed, to the jury to determine. The credibility of the witness, and the weight to be given to his story in evidence, were also questions within the province of the jury, to be considered in connection with all the other testimony in the case. The prisoner’s criminal career and conduct were within their view, and it was for them to decide, under proper instructions, whether his statements were worthy of belief or not.
The case, as has been seen, was tried by the defense on the theory of self-defense, the defendant claiming that the killing was done to save his own life, in an assault made upon him hy the deceased persons after the defendant’s iniquitous attempt to commit robbery had been voluntarily abandoned, in good faith, to the knowledge of all the parties to the affray. The defense elicited testimony from its witnesses, including the defendant, which it is claimed tended to establish an abandonment and retreat, and, after the evidence was all admitted, it was for the jury to find the facts, and the court could only consider them, as claimed, for the application of the law to them contingently, if found. This is certainly true where the facts are not admitted, and where, as here, the truth of the testimony is seriously doubted. Therefore,
“Where evidence is offered by either party to prove a certain state of the facts, and the claim is made that they are proved, and the court is requested to charge the jury that the law is as applicable to them, and what verdict to render if they find them proved, the court must comply.” (Mor*84ris v. Plalt, 32 Conn. 75; 11 Ency. Pl. and Pr., 213, 214.)
Weakness of tbe evidence is no ground for refusal to charge upon it. If there is any evidence, however slight, which supports the hypothesis upon which the request to charge is based, the request, or an instruction on the court’s own motion, should be given. (11 Ency. Pl. & Pr. 215-217; Riedle v. Mulhausen, 20 Ill. App. 68; Chapman v. McCormick, 86 N. Y. 479; Muldowney v. The III. Cent. R. R. Co., 32 Iowa 176; Levy v. Gray, 56 Miss. 318; County of Cook v. Harms, 108 Ill. 151; State v. Levigne, 17 Nev. 435, 30 Pac. 1084; Davis v. Russell, 52 Cal. 611, 28 Am. Rep. 647; People v. Taylor, 36 Cal. 255.)
Although the prisoner shows, by his own evidence, that he is guilty of an attempt to perpetrate a heinous offense, for which, in any event, he is liable to punishment, and while under the law the assailed would have been justified in killing him in his attempt, if necessary to prevent him from accomplishing his criminal purpose, still, if, before completion, he in good faith abandoned his evil design, and his abandonment and retreat were made so obvious by his acts and the circumstances as to clearly advise the assailed that they were no longer in danger of having the attempt renewed, then if thereafter the assailed, not atempting to effect an arrest, made such a fierce attack as to induce in him a well-grounded belief that they intended to kill him, he had a right to use such force as was necessary to save his own life, even to the extent of killing his assailants; and if the jury should find that, at the time of the homicide, such circumstances actually existed, then the prisoner would not be guilty of murder in the first degree, notwithstanding his original criminal assault.
That the plea of self-defense, or of necessity, may become a shield, even to an original assailant, was announced by Lord Hale, and is doubtless the doctrine of modem authority. Lord Hale said:
“Suppose that A. by malice makes a sudden assault upon B., who strikes again, and, pursuing *85bard upon A., A. retreats to tbe wall, and in saving bis own life kills B.; some bave beld tbis to be murder, and not se defendendoJ because A. gave tbe first assault. But Mr. Dalton tbinketb it to be se defen-dendo, tbougb A. made tbe first assault, either witb or without malice, and then retreated. It seems to me if A. did retreat to tbe wall upon a real intent to save bis own life, and then merely in bis own defense billed B., that it is se defendendo. But if, on tbe other side, A., knowing bis advantage of strength, or skill, or weapon, retreated to tbe wall merely as a design to protect himself under shelter of tbe law, as in bis own behalf, but really intending to kill B., then it is murder or.manslaughter, as tbe circumstances of tbe case require.” (1 Hale’s P. C., 479, 480.)
Speaking of tbis species of homicide, Sir William Blackstone says:
“If tbe slayer has not begun tbe fight, or (having begun) endeavors to decline any further struggle, and afterwards, being closely pressed by bis antagonist, kills him to avoid bis own destruction, tbis is homicide excusable by self-defense. Bor which reason tbe law requires that tbe person who kills another in bis own defense should bave retreated as far as be conveniently or safely can, to avoid tbe violence of tbe assault, before be turns upon bis assailant ; and that not factitiously, or in order to watch bis opportunity, but from a real tenderness of shedding his brother’s blood.” (4 Bl. Com., 134.)
In 1 McClain, Grim. Law, section 310, it is said:
“One who voluntarily enters into a combat or is tbe original aggressor cannot excuse a subsequent homicide, committed in consequence thereof, on tbe ground of self-defense, it being bis duty to withdraw; but there must be allowed room for repent *86anee 'and abandonment, and if the defendant, though originally in the wrong, does thus abandon his purpose, he may afterwards exercise the right of self-defense. The withdrawal, however, must be in good faith. If the original assailant merely ceases to advance for the purpose of-watching his opponents movements, and without attempting to avoid the encounter, he will not be excused for what he afterwards does on the ground of self-de fense.”
Mr. Bishop, in his work on Criminal Law, after an able examination of this subject, and, as appears, agreeing with the opinion of Lord Hale, states his conclusion thus:
“This space for repentance is always open. And where a combatant in good faith withdraws as far as he can, really intending to abandon the conflict, and not merely to gain fresh strength or some new advantage for an attack, but the other will pursue him, then, if taking life becomes inevitable to save life, he is justified.” (1 Bish. Grim. Law, sec. 871.)
In Stoffer v. State, 15 Ohio St. 47, 86 Am. Dec. 470, where the defendant was originally in the wrong, having made an assault upon one Webb with intent to murder him, but then desisted from the conflict, declined further combat, and retreated, whereupon Webb and another pursued him, and in the conflict which immediately ensued the defendant killed Webb, Mr. Justice Banney, speaking of a defendant in such a case, said:
“While he remains in the conflict, to whatever extremity he may be reduced, he cannot be excused for taking the life of his antagonist to save his own. In such case it may rightfully and truthfully be said that he brought the necessity upon himself by his own criminal conduct. But when he has succeeded in wholly withdrawing himself from the contest, and that so palpably as at the same time to *87manifest bis own good faith and to remove any just apprehension from his adversary, he is again remitted to his right of self-defense, and may make it effectual by opposing force to force, and, when all other means have failed, may legally act upon the instinct of self-preservation, and save his own life by sacrificing the life of one who' persists in endangering it.”
So in People v. Wong Ah Teak, 63 Cal 544, Mr. Justice Sharpstein said:
“A person who has sought a combat for the purpose of taking advantage of another may afterwards endeavor to decline any further struggle, and, if he really and in good faith does so before killing the person with whom he sought such combat for such purpose, he may justify the killing on the same grounds as he might if he had not originally sought such combat for such purpose.”
Nor is, in such cases, where the defendant makes the first assault, the right of self-defense limited to cases where there are two or more assaults in the affray.
In People v. Button, 106 Cal. 628, 39 Pac. 1073, 28 L. R. A. 591, 46 Am. St. Rep. 259, the defendant had assaulted the deceased in the first instance, and the trial court instructed the jury, among other things, that if they found from the evidence
“that after the first assault had ceased, and there had an interval elapsed between said first assault and the final assault, making said assaults respectively, although in some degree related to each other, yet substantially distinct transactions, each attended with its own separate circumstances, the deceased procured his gun and made such an attempt to shoot defendant as gave the defendant reasonable ground to apprehend and fear that the deceased was about to take his life, and that, acting under *88such reasonable apprehension alone, the defendant shot the deceased, then you will acquit the defendant.”
The Supreme Court of California, holding such charge erroneous, said:
“It deprived the defendant of the right to go before the jury upon the plea of self-defense, if there was but one assault which led up to the homicide. The right of the defendant to act in self-defense was in no way dependent upon the commission of two assaults. If there was but one assault which caused the combat, and was made by the .defendant, still he had the right of self-defense if .his subsequent conduct was such as to indicate -to the assaulted party that he had withdrawn in good faith from the struggle. The effect of the modification was to plainly intimate to the jury that, if the whole affray was but one connected quarrel or altercation, then the defendant, under no possible set'.of cireum-stances, could be justified in law in killing'his adversary. This is wrong. As to the true solution of the question by the jury which the court was then discussing, it was entirely immaterial whether or not there was one or two assaults.”
(1 Whart. Crim. Law, sec. 486; 1 Bish. Crim. Law, secs. 811-874; 25 Am. and Eng. Ency. Law, 270-271; People v. Button, 106 Cal. 628, 39 Pac. 1073, 28 L. R. A. 591, 46 Am. St. Rep. 259; State v. Rogers, 18 Kan. 78, 26 Am. Rep. 754; Parker v. State, 88 Ala. 4, 7 South. 98; State v. Smith, 10 Nev. 106; State v. Cable, 117 Mo. 380, 22 S. W. 953; People v. Robertson, 67 Cal. 646, 8 Pac. 600; State v. Edwards, 112 N. C. 901, 17 S. E. 521.)
It seems that the trial court recognized the fact that the question of abandonment by the defendant of his intent to rob exists in the case, for after defining robbery, and stating the law relating to the right of the person against whom an attempt to rob is made to arrest the robber and prevent his *89escape, and after stating tbe consequences wbicb follow when such criminal resists arrest, or attempts to escape, and in so doing injures or hills the person who tries to arrest him or prevent his escape, it charged the jury that “if the person at" tempting to perpetrate such robbery in good faith abandons such attempt before the robbery is accomplished, and desists from further prosecuting the same, and when called upon surrenders himself and makes no effort to escape, the person against whom the attempt is made is not justified in killing or attempting to kill him, or in using more force than is necessary to arrest him or prevent his escape.” While the court thus recognizes and endeavors to charge on the question, there is clearly nothing in this instruction that indicated to the jury what the rights of the defendant were, if they found from the evidence that he had in good faith abandoned his design to rob, before the fatal shooting.
I am of the opinion that the questions of abandonment in good faith by the prisoner of his original felonious purpose, and of retreat, ought to have been properly submitted to the jury, and that, under the evidence contained in the record, the court had no right to refuse to submit to the jury the very theory, and the only one, upon which the defense was conducted. Upon this ground only I concur in reversing the judgment.