State v. Shockley

McCARTY, J.,

After stating tbe facts, delivered tbe opinion of tbe court.

Appellant contends that tbe judge of tbe city court bad no jurisdiction to act as a committing magistrate, and therefore tbe district court was without jurisdiction to try tbe case. The constitutional and statutory provisions bearing upon tbis question are as follows: Section 1, article 8, Constitution provides that:

“The judicial power of tbe State shall be vested in tbe Senate sitting as a court of impeachment in. a Supreme Court, in district courts, in justices of tbe peace and in such other courts inferior to tbe Supreme Court as may be established by law.”

Section 21 provides that tbe “judges of tbe Supreme Court, district courts and justices of tbe peace shall be conservators of tbe peace and may bold preliminary examinations in cases of felony.”

Section 14, chapter 109, page 113, session laws 1901, provides that:

“Tbe city court shall have original jurisdiction of cases arising under or by reason of tbe violation of any city.: ordinances, and shall have tbe same powers and jurisdictions as justices of tbe peace in all other criminal actions, and tbe judges of said courts shall be magistrates with all powers and jurisdiction of tbe justices of tbe peace as magistrates.”

It is conceded that under and by virtue of said section 1, Constitution, tbe Legislature bad authority to create tbe city *33 court, but it is contended that the foregoing provision of the statute, so far as it attempts to confer jurisdiction upon the judge of said court to act as a committing magistrate, is in conflict with said section 21 of the Constitution. Counsel for appellant insists that the word “may” in section 21 should be construed to mean “shall,” and, when so construed,, the doctrine of expressi.o unius est exclusio alterius applies, which, they claim, limits the jurisdiction to hold preliminary examinations in cases of felony exclusively to the officers mentioned in said section. By a careful reading of this section of the Constitution it at once becomes apparent that such could not have been the intention of the framers of that instrument. The section provides that the officers therein mentioned “shall be conservators of the peace and may hold preliminary examinations.” It will be observed that its provisions impose upon such.officers two separate and distinct classes of duties. In the first place, circumstances might arise where it may become necessary for them to perform duties •of peace officers, and, second, might be expedient and necessary to act in their judicial capacity as' committing magistrates. It is plain, -however, that, if the maxim referred to governs in- the construction of .the language investing tuem with judicial powers, it must also control in the construction of the language which makes them peace officers. Now, if this rule of construction is to obtain in the case, it would necessarily follow that the “judges of the Supreme Court, district courts and justices of the peace,” and they only, to the exclusion of all other officers, could lawfully act as conservators of the peace, and it would therefore devolve upon these three classes of officials to police the entire State of Utah. Neither sheriffs nor policemen would have the authority, when the peace and tranquility of the public is menaced or disturbed, or lives and property of citizens endangered by unlawful and riotous assemblies, to disperse the offenders or, make arrests. Bor the word “conservator,” when used and associated as it is here, has a clear and well-defined meaning Webster defines it as “an officer who has charge of pre *34 serving tbe peace, as a justice or sheriff.” Bouvier defines the term as “he who hath an especial charge, by virtue of his office, to see that the King’s peace is kept.” (Bouv. L. Diet., 401.) In 8 Cyc. 586, conservators of the peace are defined as “common-law officers whose duties, as such, were to prevent and arrest for breaches of the peace in their presence.” It must be apparent that, if the construction contended for by appellant should be followed, not only would it devolve upon the officers mentioned in said section to preserve the public peace throughout the State, but, in many cases, they would be forced to perform the functions of bailiffs and ministerial officers in the courts over.which they presided. It is plain that a construction which woud lead to such mischievous and absurd results cannot be seriously considered, where, as in this case, such consequences can be avoided by giving to the language of the provision of the Constitution under consideration its plain and ordinary meaning, (Suth. Stat. Con., sec. 238; Endlich, Inter. Stat., 258.) The first part of section 21, which provides that certain officers “shall be conservators of the peace,” is imperative; that is, in cases of breach of public peace committed in their presence it would be their duty, if the exigencies of the occasion required, to take such steps and adopt such measures as, in their judgment, would be necessary to quiet the disturbance and preserve the public peace. The latter part orf: the section, which provides that they may hold preliminary examinations in cases of felony, imports an authority to do so, but does not impose a positive duty in this respect. Therefore it is evident that the words “shall” ■and “may” are used advisedly, and each is to be understood in its usual and ordinary sense. For it is a familiar rule of constitutional and statutory construction that words and phrases are to be given their general and popular meaning, unless the context or the nature of the subject otherwise indicate. (8 Cyc., 132, and cases cited in note; Black, Inter. Laws, p. 28; Suth. Stat. Con., Sec. 132.) Endlich, in his work on the Interpretation of Statutes (section 507), states the rule as follows:

*35 “Indeed, the language of the Constitution, owing its whole force to its ratification by the people, is always to be taken in its common acceptation — its plain, ordinary, natural, untechnieal sense — unless the very nature of the subject indicates, or the context suggests, that it was used in its technical sense. It must also be presumed that the people who who adopted the Constitution understood the force and extent of the language used, and that the language has been employed with sufficient precision to convey the intent. It follows that, where the words of the constitutional provision, taken in their ordinary sense and in the order of their grammatical arrangement, embody a definite meaning, which involves no absurdity or conflict with other parts of the same instrument, the meaning thus apparent on the face of the provision is the only one that can be presumed to have been intended, and there is no room for construction.”

By adherence to this rule in the construction of the provisions last referred to of the Constitution, we not only give to the language used its plain and ordinary meaning, but avoid the absurdities and mischievous consequences heretofore pointed out which would inevitably result should we adopt the construction contended for by appellant. We fail to discover any conflict whatever, either in letter or spirit, between the provisions of the Constitution referred to and the provisions of the act creating city courts and defining their jurisdiction.

The defence requested the court to give the jury the following instruction: “If you find from the evidence that Mr. Gleason was shot by the defendant after the attempt to rob had been voluntarily 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 defendant Mr. Gleason understood these facts, and that if Mr. Gleason afterwards assaulted the defendant in such a way as to induce in the de *36 fendant a reasonable belief that he was actually in danger of great bodily harm or of being hilled, 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 a'ttaclc 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 the 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. Brighton 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 refused to give this instruction and others of like import asked for by defendant. Neither did the court refer to the question of abandonment and self-defense in its instructions to the jury. Counsel for defendant contend that there is evidence in the record which tends to show that when Gleason refused to comply with his command to “put up his hands,” and assumed an attitude of resistance and showed a determination to resist force with force, he, the defendant, abandoned his intent to commit robbery and withdrew from the contest which he, by his own criminal act, had precipitated, and that the court erred in refusing to instruct the jury on the question of abandonment and right of self-defense as requested. We have made a thorough and critical examination of the record in this case and have failed to find any evidence whatever upon which an instruction on the question of abandonment and right of self-defense could properly have been predicated. We have in substance quoted all -the evidence bearing on this question, and it conclusively shows that the actions of the defendant, from the time he entered the car for the purpose of robbery and until the homicide of Brighton, all constituted one continuous transaction. According to his own testimony, he entered the street car for the purpose of robbery, and, in pursuance and in the attempt thereof, ordered Gleason and Brighton to “put up their *37 bands,” wbicb Gleason refused to do, but told defendant to “put up bis bands,” at tbe same time drawing bis own revolver. Defendant, on seeing tbe pistol in Gleason’s bands, started to back out of tbe car. When near tbe door be fell, and Gleason and Brighton rusbed toward bim. When be saw them coming be fired a shot from bis gun, but did not know wbetber it bit Gleason or not. Brighton and Gleason both took bold of defendant while be was down. Gleason bad hold of bim with one band, and in tbe other band bis gun, which be tried to fire at defendant, but for some cause it would not go off. Gleason let go of defendant and stepped back, and with both bands tried to fire bis pistol at bim. Defendant, as be says, believing that Gleason was trying to kill bim, raised bis gun to fire at and bit bis (Gleason’s) arm, but in tbe scuffle tbe gun, when it was fired, bad been brought in a more direct range of Gleason’s body. After firing this shot defendant endeavored to leave the car, but Brighton, who bad bold of bim, stood between bim and tbe door. Brighton at this juncture put one of bis arms under bis coat, and defendant, as be says, believing that by this move be was attempting to draw a gun, shot and killed bim, and then left tbe ear. He also testified that when be was down be tried to tell Gleason and Brighton that be was willing to surrender, but did not know wbetber or not be made himself understood. Tbe law is well settled that where a party makes an unprovoked assault on another for tbe purpose of committing a felony, as was done in this ease, before tbe assailant can claim or exercise tbe right of self-defense, be must in good faith abandon bis criminal design and withdraw from tbe contest, and at the same tim'd notify bis adversary of such abandonment in such a way as to manifest bis good faith and to remove all just apprehension there may be in tbe mind of tbe party assaulted that such withdrawal may be only a ruse for the purpose of enabling tbe assailant to gain some undue advantage and again renew tbe assault. And in this case a much stronger reason exists for tbe application of this rule than usually obtains in other cases of criminal assault. For it is a matter of common knowledge that, when a party *38 assaults another for tbe purpose of robbery, be does so with the premeditated design of killing bis victim should it become necessary to do so in order to accomplish the robbery, make good his escape, or to protect his person when being attacked by the victim in resisting such attempted robbery. And the Legislature, recognizing such to be the case, incorporated into the Penal Code, among other things, the following provision: “Every murder committed in the perpetration of robbery is murder in the first degree.” (Section 4161, Eev. St. 1898.) When the defendant covered Gleason and Brighton with his revolver and ordered them to put up their hands, they had a right to presume, and to act upon such presumption, that in case either of them failed to comply with his demand he would do precisely what he did do, viz., shoot them down. And, so long as he kept his gun in his hand prepared to shoot, they were neither expected nor required to construe and accept any act or statement of his as an intent on his part to discontinue the assault and surrender himself as a prisoner. That he had at no time after Gleason told him he had better put up his hands intended to drop his gun and surrender himself as a prisoner, the only legal thing left for him to do under the circumstances, is made plain by his own testimony: “I didn’t say a word when Gleason told me to put up my hands; I didn’t think it necessary to drop my gun, because at that time the men had made no movement; I did just like any other human being would when I thought I was going to lose my life: . . . I did not voluntarily drop the gun under the circumstances, and no other man under God’s •sun would; I knew I needed the gun; my life depended upon it.” And again he says: “A man going to perpetrate a hold-up would think he was going to get away; I suppose he would use every protection he could to get away.” In the case of State v. Smith, 10 Nev. 106, the court, in discussing the question, said:

“A man who assails another with a deadly weapon cannot kill his adversary in self-defense until he has fairly notified him by his conduct that he has abandoned the contest, and, if the circum *39 stances are such that he cannot so notify him, it is his fault, and he must take the consequences.”

In the case of People v. Button, (Cal.) 39 Pac. 1073, 28 L. R. A. 591, 46 Am. St. Rep. 259, it is also said:

“In order for an assailant to justify the killing of his adversary, he must not only endeavor to really and in good faith withdraw from the combat, but he must make known his intentions to his adversary. His secret intentions to withdraw amount to nothing. They furnish no guide for his antagonist’s future conduct. They indicate in no way that the assault may not be repeated, and afford no assurance to the party assailed that the need of defense is gone.”

And again, in the same opinion:

“It is therefore made plain that knowledge of the withdrawal of the assailant in good faith from the combat must be brought home to the assailed. lie must be notified in some way that danger no longer threatens him, and that all fear of further harm is groundless.”

In 25 Am., and Eng. Encyc. L., 270, the rule is stated as follows:

“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 a case it may be rightfully and truthfully said that he brought the necessity upon himself by his own criminal conduct.”

And again it is said, on page 271:

“If the circumstances are such, arising either from the condition of his adversary, caused by the aggressor’s acts during the affray, or from the suddenness of the counter attack, that the original assailant cannot so notify his adversary, it is such assailant’s fault, and he must take the consequences.” (1 McClain, Crim. Law, secs. 309, *40 310; Stoffer v. State, 15 Ohio St. 47, 86 Am. Dec. 470; State v. Rogers, 18 Kan. 78, 26 Am. Rep. 754; Parker v. State, 88 Ala. 4, 7 South 98; Carpenter v. State, 62 Ark. 306, 36 S. W. 900; People v. Robertson, 67 Cal. 646, 8 Pac. 600; Smith v. State, 73 Ga. 79.)

Section 4638, Revised Statutes 1898, provides that a private person may arrest another “for a public offense committed or attempted in his presence.” Therefore, when Gleason stated to defendant that “he had better put up his hands,” it was his duty to throw down his gun and surrender himself as a prisoner. And Gleason and Brighton, under the foregoing provision of the statute, had a right to use whatever force was necessary to disarm him and prevent his escape. The same rule does not govern in this case that applies to parties engaged in a mutual combat, or one that arises from a sudden quarrel or heat of passion, wherein both parties may be at fault. In such a ease the aggressor, if he can do so, may in good faith withdraw from the combat and place of encounter, and, if he does, the party assailed is not justified in pursuing him for the purpose of continuing the affray. In this case the defendant was acting in the role of an outlaw and hold-up. He was endeavoring to, and in fact was in the act of, robbing a couple of blameless and inoffensive men, and, when he was told to put up his hands, he was in effect placed under arrest; and the killing of these men, under the circumstances as related by himself in order to make his escape, was just as culpable and indefensible as though he had, without warning, shot them down when he first entered the car. At no time from the moment he entered until he fired the fatal shot that killed Gleason did he do anything that would even suggest that he intended in good faith to withdraw from the contest, much less abandon his felonious attempt of robbery or surrender himself as a prisoner. True, according to his testimony, which, for the purpose of this case, we must accept as true, after he had shot Gleason he said to Brighton, “Bor God’s sake man! don’t kill me; I will give up.” When he made this statement he bad already committed the crime *41 for wbicb be stands convicted. And, even if this declaration bad been made in good faith, under tbe circumstances it would avail bim nothing. Brighton bad made no statement or move, so far as shown by tbe record, that would even justify and inference be bad in bis possession a deadly weapon or intended to use one upon defendant, notwithstanding, under tbe circumstances, be bad a perfect right to use whatever force was necessary to overcome defendant’s resistance, even to tbe taking of bis life. While tbe defendant is not on trial for tbe killing of Brighton, yet, as tbe entire affray was one continuous transaction, it is proper to refer to tbe shooting of Brighton for tbe purpose of showing tbe state of mind of tbe defendant and illustrating tbe circumstance and cause of shooting of Gleason, .and, in the language of tbe statute, of showing tbe “abandoned and malignant heart” of tbe defendant.

In concluding tbe discussion of this branch of tbe case, we have no hesitancy in saying that, according to defendant’s own testimony, which, as hereinbefore stated, we must assume to be true, from tbe time be entered tbe car and told tbe occupants to throw up their bands, and until be killed Brighton, there was not a moment that either Gleason or Brighton would not have been justified in shooting bim down — • first, for tbe protection of their own persons and lives; and, second, to prevent bis escape. And there is an entire absence of testimony that would even tend to suggest that be, at any time after tbe affray began, ceased to be tbe aggressor. This is conclusively shown by bis testimony, wherein be stated, referring to the time be slipped and fell: “There was nothing said or done by tbe men up until this time, except as I have stated; there was nothing done or stated to cause me to abandon tbe thought of taking tbe money from these men.” In reading tbe record, one looks in vain to find any evidence that prior to tbe shooting of Gleason tbe defendant gave notice of any kind of any intention of abandoning bis attempted robbery or of ceasing from bis felonious assault. Tbe instructions asked for by tbe defendant were therefore properly ' refused.

*42 The defendant was sworn as a witness, and testified in his own behalf. On direct examination he stated that he was twenty-six years of age; that he was born in the State of Missouri, and that his father, mother, and two sisters reside there; that he purchased the revolver in Idaho with which he did the hilling; and that he arrived in Salt Lake Oity January 2, 1904. He then gave a detailed account of his actions leading up to the commission of the crime. He did not testify in relation to, nor did he introduce any evidence bearing upon his past life. Neither did he introduce any evidence respecting his reputation for peace and quietness, or otherwise put his character in issue. On cross-examination the defendant was asked the following question: “Q. Did you hold up a street car in this city last July, 1903 ?” Counsel for “the defendant objects to this question and the evidence proposed to be adduced thereby, on the ground that it is incompetent, irrelevant, and immaterial to affect the credibility of the witness, and for every other purpose; that it is not proper cross-examination; and that it tends to incriminate the defendant.” Hereupon the jury were excused from the courtroom to enable counsel to argue the matter: “H. A. Smith (defendant’s counsel) : The defendant joins with his attorneys in making this objection: he joins in the objection, and claims it is privileged. District Attorney: I think the defendant should make his claim in front of the jury when the defendant was asked the question, and I object to the record showing what is not a fact. The Court: The record will merely show the statement made by counsel. Mr. Smith: I will ask Mr. Shockley if he. joins with me in that objection? District Attorney: I object to it; no jury present. The Court: You need not ask the defendant any question in the absence of the jury. Mr. Smith: I didn’t think there was any question, but the defendant had the right to refuse to answer any question that would incriminate him, except the matter in issue. The Court: If the defendant had made that objection. I don’t think counsel can make the objection.” Whereupon the jury returned into the court-room. “The Court: In view of the suggestions that have been made. *43 the court will inform you, Mr. Shockley, that yon are not required to give any answer which would tend to subject you to punishment for a felony.” Thereupon counsel for defendant renewed his objection as before stated; and also asked the defendant whether or not “you join with me in making that objection, and whether you don’t make it yourself.” “The Witness: I do make the objection myself. District Attorney : Just a moment! Now I object to the question. This defendant has got certain privileges which he must claim himself, which the Supreme Court has distinctly said his counsel cannot claim for him. The Court: Mr. Shockley, under the instructions given you by the court, do you claim that privilege and decline to answer the question on that ground — that it tends to incriminate you, and subject you to punishment for felony ? The Witness: I decline to answer the question upon that ground. District Attorney: Upon the ground it tends to incriminate you? Mr. Smith: We object to it, if your honor please. The Court: Yes, that is sufficient on that subject. District Attorney: Mr. Shockley, didn’t you last July, at South Temple and Thirteenth East street, hold up a street car and rob the motorman and conductor, or either of them? Mr. Smith: We make the same objection, if your honor please. The Court: The objection is •overruled. District Attorney: Answer the question. Mr. Smith: Wait a minute. The court will inform the witness. The Court: If he sees fit to decline to answer these questions, he has a perfect right to do it, under the instructions of the ■court. Answer the question, unless you decline to. The Witness : I decline to answer the question on the same grounds. The Court: You are excused from answering it. District Attorney: Mr. Shockley, didn’t you, in this city, last July, hold up a street car on Douglas Line and attempt to rob the conductor or the motorman, or both, at Thirteenth East and about Fifth South? The Witness: I decline to answer. District Attorney: On the ground that it would tend to incriminate you ? Mr. Smith: I object to that, if your honor please. Witness has stated the ground. The Court: Yes, on the same ground. District Attorney: Didn’t you, last July, *44 Shockley, at Tenth East and Eiftb South, shoot at a motorman or conductor, or street car, a car running, a car up on the-Fort Douglas Line ? The Witness: I decline to answer the-question, sir, upon the same ground as before.” The question was also asked the defendant if he had not deserted from the-United States army, and, against the objection of his counsel, was required to answrer the question, and answered that he did so desert. The action of the court in the above rulings is nowhere complained of as error.

The first question presented by this assignment of error 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? The general rule is that the right to refuse to answer incriminating questions .is a personal privilege of the witness, which he can either exercise or waive. And the authorities all agree that, if the witness chooses to answer incriminating questions, neither the defendant nor his counsel can legally object. But we do-not understand the authorities to hold that, when the witness is also the defendant in the case, his counsel cannot speak for him and make the proper objections and protect him in his right and immunity from answering questions on cross-examination respecting the commission by him of other crimes which, are in no way connected with the one for which he is on trial. We have been able to find but three cases which 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. The first case is that of the State v. Wentworth, 65 Me. 234, 20 Am. Rep. 688, and the court, in that, case, bases its conclusions upon certain New York cases cited in the opinion. It will be seen by an examination of those cases that the question as to whether the defendant can speak through his counsel and claim his immunity from answering incriminative questions was not before the court in either of them. The New York court in a later decision (People v. *45 Brown, 72 N. Y. 571, 28 Am. Rep. 183), bas passed upon this identical question, and Chief Justice Cburcb, speaking for the •court, says:

“I understand it to be conceded by the counsel for the people that this objection would be valid if it had been taken by the witness himself instead of the counsel. . . . 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 counsel of the party has no right to interfere. . • . . But when, the witness is also the party, I see no reason for the application of this rule. By taking the stand as a witness, while he may subject himself to the rules applicable to other witnesses, he is not thereby deprived of his rights as a party; and it follows that his counsel, while he is in the witness box, has a right to speak for him, and that an error committed by the court against him may inure to his benefit as a party. Especially ought this protection to be afforded to persons on trial for criminal offenses, who often, by a species of moral compulsion, are forced upon the stand as witnesses, and, being there, are obliged to run the gauntlet of their whole lives on cross-examination, and every immorality, vice, or crime of which they may have been guilty, or suspected of being guilty, is brought out, ostensibly to affect credibility, but practically rised to produce a conviction for the particular offense for which the accused is being tried, upon evidence which otherwise would be deemed insufficient. Such a result is manifestly unjust, and every protection should be afforded to guard against it. I am of opinion that the witness was privileged from answering the question, and that the objection was well taken by his counsel, and that the exception is available to him. Neither in the Brandon Case, 42 N. Y. 265, nor in *46 the Connors Case, 50 N. Y. 240, was tbe question of privilege presented.”

Tbe two New York eases mentioned in tbe opinion just quoted are tbe cases cited in tbe case of tbe State v. Wentworth, supra. Tbe next case is that of tbe People v. Larsen, 10 Utah 143, 37 Pac. 258, which is cited and relied upon by tbe Attorney General as decisive of tbis question. In that case tbe defendant, wbo bad testified as a witness in bis own bebalf, was asked on cross-examination tbe following question: “Have you ever been arrested for a crime similar to tbis?” Tbe court, in tbe course of tbe opinion, says: “In tbis case tbe question was not claimed by tbe witness to be privileged. It was simply objected to by counsel as immaterial, irrelevant, and not cross-examination. Nor did it imply an answer wbicb would prove a link in a chain of testimony and render it sufficient to convict bim of crime. Nor would it be criminative evidence at all.” It will tbus be observed that tbe question now under discussion was not in any sense at all before tbe court. Therefore while tbe expressions of tbe court on this question in that case are entitled to respectful consideration, they cannot be regarded as a precedent by wbicb tbis court must be bound in tbis and other like cases, should any arise. Tbe only other case we have been able to find in wbicb tbis doctrine is announced is tbe case of tbe State v. Kent, 5 N. D. 516, 67 N. W. 1052, 35 L. R. A. 518. By an examination of that case it will be seen that on tbe cross-examination of the defendant be was questioned about tbe commission of other crimes by bim, for tbe purpose of showing a motive for tbe commission of tbe crime for wbicb be was on trial. To tbis course of examination counsel for tbe defendant objected, and based bis objection on tbe grounds that it was incompetent, irrelevant, immaterial, improper cross-examination, and that tbe statements were privileged, wbicb privilege was claimed both by counsel and defendant, and that tbe defendant declined to answer tbe questions on tbe ground that it would tend to disgrace bim. There was evidence in tbe record which tended strongly to show that be bad committed tbe crime for wbicb be was on trial for tbe pur *47 pose of preventing exposure of tbe crimes about which he was questioned on cross-examination, which evidence he had specifically denied in his examination in chief, and the court in that case very properly held that the cross-examination was proper. In the course of the opinion it is said:-

“There is ample authority for the proving of alias and collateral crimes for the purpose of showing the motive for the commission of tbe crime for which the defendant is being tried, the limitation being that such alias crime must bear such a relation to the crime for which the party is being tried that the court can clearly see that, if established, it will have a tendency to furnish motive for the commis-

V’ sion of the other crime.”

And again the court says:

“Plaintiff in error had denied what Swidenski had testified was his self-declared motive. The subject of motive being thus opened up, it was proper to cross-examine him upon the entire subject.”

The court having determined, and very properly so, that the questions, under the circumstances of that case, were not privileged, the question as to whether the objection should be made by counsel or in person by the defendant became unimportant; and the opinion of the court, wherein it is held that the defendant in that case could not speak through his counsel and claim his privilege from' answering questions that would tend to disgrace him, but that it was incumbent upon him to personally make the objection, at most, was only dictum. The court having held that the questions were not privileged, and that the defendant was properly compelled to answer them, the question as to whether a defendant in a criminal case who desires to claim his exemption from answering disgracing or incriminating questions is bound to claim his privilege personally or may do so through his counsel was no longer before the court. (McKelvey on Ev., 304.) The rule announced by the New York Court of Appeals is more in ac *48 cord with the letter and spirit of our State Constitution (section 12, art. 1), which provides, among other things, that “in criminal prosecutions the accused shall have the right to appear and defend in person and by counsel, . . . (and) "to testify in his own behalf,” than the doctrine contended for by the state’s attorney. To hold that, when a party accused of crime exercises his constitutional right and testifies in his own behalf, his right to appear by counsel is temporarily suspended, would, in effect, be holding that by the exercise of one of these constitutional rights the accused forfeits the other, and would lead to a construction which would be both unreasonable and absurd. (Underhill on Crim. Evi., sec. 66;State v. Beal, 68 Ind. 345, 34 Am. Rep. 263; Clifton v. Granger, 86 Iowa 513, 53 N. W. 316.)

The next question raised is, did the trial court err in permitting the district attorney, over defendant’s objections, to ash him, on cross-examination, the questions hereinbefore mentioned respecting the commission by him of other crimes, none of which were in any way linked or connected with the one for which he stands convicted? The testimony thus sought to be elicited in no way tended to prove any issue, fact, or circumstance in the case. Nor did it directly or remotely refer to any fact or circumstance testified to by him, or that came within the range of his examination in chief. We recognize the well established rule that a defendant, when he takes the witness stand in his own behalf, may be cross-examined the same as any other witness. He may be examined as to any fact, occurrence, or transaction relevant to the issue, or which sheds light upon the commission and character of the offense for which he is on trial. And he may be questioned for the purpose of testing his memory, and examined as to matters which tend to discredit his testimony or which affect his credibility as a witness. But it is apparent that the questions complained of in this case were not asked, nor was the evidence sought to be elicited thereby, for any such purpose. And it is apparent that the questions were not asked, nor was the evidence sought to be elicited thereby, for the purpose of affecting his credibility as a witness or the weight of his testi- *49 many, but were evidently intended to prejudice bim before tlie jury. Besides, the State depended almost entirely upon tbe confession made by tlie defendant for conviction. Bor without this confession it is extremely doubtful if a conviction could have been procured. Now, .the facts and circumstances leading up to and surrounding the commission of the crime, as testified to by the defendant are substantially the same as contained in his confession. ' The State, by impeaching his testimony, would necessarily, to the same extent, discredit his confession, which, as already observed, was practically the only evidence the State had upon which to base a conviction. These questions could not have been other than prejudicial to the defendant’s case. He was on trial for his life, and the State had introduced in evidence his written and oral confessions, which tended strongly to prove him quilty of murder in the first degree. Section 4162, Revised Statutes, provides:

“Every person guilty of murder in the first degree shall suffer death, or, upon the recommendation of the jury, may be imprisoned at hard labor in the State Prison for life in the discretion of the court.”

And the jury was so charged. And in Calton v. People, 130 U. S. 83, 9 Sup. Ct. 435, 32 L. Ed. 870, on appeal from the territorial Supreme Court of Utah, it was held reversible error not to so charge the jury. Whatever disposition, if any, there may have been on the part of the jurors to make the said recommendation, may have been entirely overcome and removed by reason of these rulings of the court. There is no settled and arbitrary rule defining the limits within which the ' cross-examination must be confined. The latitude that may be allowed is largely within the discretion of the trial court, to be exercised and governed by the facts and circumstances of each particular case. The demeanor and appearance of the-witness while testifying, the extent and character of his testimony in chief, his inclinations and prejudices, the disposition he has shown to speak or evade the truth, as the case may be, the interest or lack of interest, if any, he has in the result *50 of the case in which, he is called to testify, are matters that will in a measure determine the scope that ought to be allowed on cross-examination. And while, as we have suggested, it is a matter that is almost entirely within the discretion of the court to what extent the cross-examination of a witness may be carried, yet the weight of authority holds that, when a party on trial for a criminal offense testifies in his own behalf, it is an. abuse of discretion and is error to permit the state, over his objection, to interrogate him respecting the commission of other crimes by him which are in no way connected with the one for which he is being tried, unless the questions asked relate to some crime or crimes for which he has been convicted, in which ease the questions are proper and may be asked. And even in cases of this kind the questions will be permitted for the purpose only of affecting the credibility of the defendant. Now, the questions referred to did not in any degree tend to impeach or discredit any material statement or part of the defendant’s testimony, which shows that he went to the car for the purpose of robbery, and with a loaded 44-caliber Colt’s revolver, and commanded Gleason and Brighton to throw up their hands; that when he was told by Gleason to put up his hands (and he was thereby put under arrest), he started, with his drawn revolver still in his hands, to back out of the car; that he did not drop his gun, because he needed it; that when he fell, and Gleason and Brighton started towards him, he deliberately fired a shot, which, he says, may have killed Gleason, which shot was fired before he made any attempt to inform the men that “he was willing to give upthat up to the time he fell nothing was said or done to cause him to abandon the thought of taking the money from those men; that while endeavoring to mqirn Gleason by shooting him in the arm the gun was prematurely discharged, and, instead of hitting Gleason in the arm as intended, may have inflicted the mortal wound of which he died; that after he had mortally wounded Gleason he deliberately and wantonly killed Brighton. The foregoing is a summary of the material facts in the case. Therefore it is idle to contend that the questions and answers referred to had a tendency, or even were intended, to *51 Aveaken or impeach the facts upon which the state relied for a conviction (and which are the only material facts in the case), or, for that matter, any fact or circumstance testified to by the defendant. His declarations to the effect that, at the time he started for the scene of his crime and AAdien he arrived there, he had a mental reservation with respect to killing these men, is no proof Avhatever of a subsequent abandonment on his part. Neither does his evidence tend to show any such intention, wherein he says: “Q. I mean, when Gleason told you you had better put up your hands yourself, you have testified you immediately dropped your gun and backed up ? A. I held the gun doAvn in my hand. I didn’t say a word, no, sir, right at that time. Q. You didn’t say anything about you were going to give up until they got you cornered, did you ? A. I did not. Q. Well Avhy didn’t you drop the gun out of your hand, if you were Avilling to give up ? A. Well, I didn’t think it was necessary to drop the gun. The men had made no movement. . . . I did just like any other human being would when I thought I was going to lose my life; I tried to tell them I was willing to give up. Q. Why didn’t you drop your gun? . . . A. I am answering your question. If they had said anything I would have dropped the gun. Q. And you didn’t voluntarily drop it, or give up the gun ? A. I could not under such circumstances, and no other man under God’s sun could. Q. You needed it ? A. My life depended on it.” If this testimony, which is the most favorable to him of any in the record, Avere entirely eliminated, the record would not show his guilt any more conclusively than it does in its present condition. In the case of the People v. Brown, supra, Chief Justice Church speaking for the court says:

“I am of the opinion that the cross-examination of the persons who are Aptnesses in their own behalf when on trial for criminal offenses should in general be limited to matters pertaining to the issues, or such as may be proved by other witnesses. I believe such a rule necessary to prevent a conviction *52 for one offense by proof that the accused may have been guilty of others. Such a result can only be avoided practically by the observance of this rule/’

This same doctrine was reaffirmed in a later case by the New York court. (People v. Crapo, 76 N. Y. 288, 32 Am. Rep. 302.) In that case the defendant was on trial for burglary, and testified as a witness in his own behalf. On cross-examination he was asked the following question, which was objected to: “Were you also . . . arrested on a charge of bigamy ?” This was held to be reversible error. The court, in the course of the opinion, said:

“The discretion which courts possess- to permit questions of particular acts to be put to witnesses for the purpose of impairing credibility should be exercised with caution when an accused person is a witness in his own trial. He goes upon the witness stand under a cloud; he stands charged with a criminal offense not only, but is under the strongest possible temptation to give evidence favorable to himself. His evidence is therefore looked upon with suspicion and distrust, and if, in addition to this, he may be subjected to a cross-examination, every incident of his life and every charge of vice or crime which may have been made against him, and which may have no bearing on the charge for which he is being tried, he may be so prejudiced pn the minds of the jury as frequently- to induce them to convict upon evidence which otherwise would be deemed insufficient. It is not legitimate to bolster up a weak case by probabilities based upon other transactions. An accused person is required to meet the specific charge made against him, and is not called upon to defend himself against every act of his life.”

Underhill in his work on Criminal Evidence (section 62),' says r

*53 “To compel the accused to answer indiscriminately all questions, respecting past criminal transactions, wbicb, ■ though similar, are separate and distinct from, that for which he is on trial, would not -only be treating him more harshly than other witnesses, but would be a serious infringement of his constitutional privileges.”

(G. C. & S. F. Ry. Co. v. Johnson, 83 Tex. 628, 19 S. W. 151 State v. Houx, 109 Mo. 654, 19 S. W. 35, 32 Am. St. Rep. 686; Elliot v. Boyles, 31 Pa. 67; Commonwealth v. Schaffner, 146 Mass. 515, 16 N. E. 280; Emery et al. v. State, 101 Wis. 648, 78 N. W. 145; Anthony v. State [Idaho] 55 Pac. 884; People v. Un Dong, 106 Cal. 83, 39 Pac. 12; State v. Gleim [Mont.], 41 Pac. 998, 31 L. R. A. 294, 52 Am. St. Rep. 655; State v. Huff, 11 Nev. 17; State v. Underwood, 44 La. Ann. 852; 11 South. 277; Gale v. People, 26 Mich. 157; People v. Pinkerton, 79 Mich. 110, 44 N. W. 180; Elliot v. State, 34 Neb. 48, 51 N. W. 315; State v. Saunders, 14 Or. 300, 12 Pac. 441; Bailey v. State, 67 Miss. 333, 7 South. 348; State v. Carson, 66 Me. 116; Clarke v. State, 78 Ala. 474, 56 Am. Rep. 45; Commonwealth v. Thrasher, 11 Gray 450.)

For the reasons herein stated, the case is reversed, with directions to the trial court to grant a new trial.

STRAUP, L, concurs.