Appellatit prosecutes this appeal from a judgment of conviction for the offense of murder of the second^ degree, confinement in the State penitentiary for the term of seventy-five years being assessed by the verdict.
By a bill of exceptions and explanation thereto by the judge, it appears that, in answer to a question by appellant’s counsel, a witness testified that defendant stated to him that deceased had cut his shirt in two places on the side, showing the cuts, and the witness further testified that in his opinion the cuts could not have been made without cutting the body of the defendant. On the next morning counsel for defendant moved to exclude this portion of the evidence with regard to the opinion of the witness. This motion was refused and exception was taken thereto. In this there was no error. If the opinion of the witness was responsive to a question from defendant, he will not be permitted to speculate as to what the answer will be, and, if against his interest, have the answer excluded.
In justification of the killing, appellant relied upon self defense. The evidence in support of this defense is substantially as follows: Early of the morning of the homicide, Baffin (deceased) came to the hay tent, the parties being all engaged in hay making. As soon as he arrived at the tent, he ordered Alf Nelson to go and catch the mules, which were grazing some distance away. Nelson had started off, when deceased ordered May (appellant) to go and help Nelson catch the mules. Their failure to find a rope so infuriated deceased that he immediately said to May: “You G—d d—d s—n of a b—h, I’ll "make you make a rope,” and ran to the wagon and assaulted May with a knife, cutting his shirt in two places before he could get out of his reach. May fled around the tent, Baffin pursuing and cutting at him with his knife. As May ran by the tent, he snatched a pistol from the side of the tent, and, while in a stooping position, he presented the pistol around his left arm, without rising, and fired back as he ran. The ball took effect in the body of *154deceased, causing him to stop, step back a few steps, and sit down. Death ensued in about ten minutes.
Opinion delivered February 16, 1887.Appellant requested the court to instruct the jury that he was not bound to retreat, etc. This was refused, and this ruling is assigned as error. While the law, under no circumstances, requires the party assaulted to retreat, and in very many cases it is the imperative duty of the court to so instruct, yet in some cases it is not necessary, and in these the refusal is not error. It is the duty of the court to charge the law applicable to the facts of the case, and there is no fact in this case requiring a charge upon the subject of retreating. For, if the jury believed the witnesses who make the case of self defense, evidently appellant was retreating at the very instant he fired the fatal shot; and, if the law required him to retreat, he was, according to the testimony of these witnesses, in full and perfect compliance with the law. In cases in which there is no retreat, it might be beneficial to a defendant to have an instruction givqn that he is not required to retreat; but when he has retreated, no possible benefit pan accrue to him from such instruction. In fact, where the proof is evident (as in this case, if appellant’s witnesses are to be credited) that the accused did retreat, and was in full retreat when he fired, a charge that the law does not require him to retreat would riot be pertinent to any issue in the case, and there would be no legitimate purpose which such a charge could subserve.
The other assignments of error are not deemed well taken. Ho error appearing in the record, the judgment is affirmed.
Affirmed.