
    State of Iowa, Appellee, v. Henry Thomas, Appellant.
    1 Criminal law: evidence: scope of cross-examination: discretion. The scope of cross-examination is largely a matter of discretion with the trial court and unless its rulings limiting the examination are arbitrary and result in prejudice they will not be disturbed on appeal.
    2 Same: murder: evidence. On a prosecution for murder the court may permit a showing of the deceased’s previous history; and refusal to permit mere repetition of testimony previously given is not prejudicial error.
    3 Same: self-defense: instruction. An instruction that one acting in self-defense may usé such means as he deems necessary when acting as a reasonably prudent person, to the extent of killing his assailant; but before he will be excused for using a weapon resulting in death it must appear that his danger was so imminent that to save his life it was necessary to kill his assailant; that when one acting as a reasonably prudent man believes that his life is in danger he is justified in using such force as an ordinary prudent person would in a like situation probably exercise, and that it must appear1 beyond reasonable doubt that the accused killed his assailant and did so in necessary self-defense is a sufficient submission of the issue of self-defense.
    4 Same: evidence of accused: 'credibility. An accused may rightfully testify in his own behalf but the credibility, of his evidence is a matter exclusively for the jury; and in weighing his evidence it may consider his manner of testifying, the reasonableness of his testimony and his interest in the result of the case. The jury is not required to blindly accept his evidence as'true-but is to determine whether it is in fact true and made in good faith or only for the purpose of avoiding conviction.
    
      Appeal from Polk District Court. — Hon. Lawrence De Graee, Judge.
    Wednesday, July 5, 1911.
    Indictment for murder in the first degree. Trial to a jury, verdict of guilty, and judgment of imprisonment for life. Defendant appeals.
    
    Affirmed.
    
      J. B. Bush and Thomas L. Sellers, for appellant.
    
      George Cosson, Attorney-General, and Henry E. Sampson, Special Counsel, for the State.
   Deembr, J.

Defendant and deceased, one Harry L. Cook, were in the employ of the Turner Improvement Company, which, on the 18th day of June, 1910, was engaged as a contractor in paving what is known as East Fourth Street in the city of Des Moines. Cook was acting as timekeeper for the company, and defendant, a colored man, was working for the company as an ordinary day laborer. On the evening of the 17th of June, defendant went to the deceased and made claim of some time coming to him. This was denied by Cook, and deceased left him (Cook). On the next morning, somewhere between eight and nine o’clock, defendant and two other colored men were seen in conference, and defendant was heard to say that he was going down to “the works” and have his pay. The men were apparently excited, and defendant was advised by a policeman, who was at hand, to stop drinking and to keep away from the works, where he might cause trouble. To this defendant responded, “By God, I am going to have my money anyway.” Shortly thereafter defendant with his companions appeared at the works, and defendant again asked Cook “for his time.” Cook then asked him how much he thought he was short, to which defendant responded that he did not know, but he knew he was short. Cook then asked him how he knew, to which he responded, “Well, because, by God, I know I am short.” The conversation continued for some time; defendant becoming boisterous and using violent, profane, and abusive language toward Cook. At one time defendant said, “I will have it, or I will get you.” Finally Cook was seen to throw his hand to his side, and was heard to say, “He got me! Yes; he got me with a knife right between the ribs.”

After stabbing Cook, defendant stood a few moments, knife in hand, and then started walking rapidly in an easterly direction. Cook called for some one to stop him. Thereupon one Eaton started after defendant, and he (defendant) turned and began to throw stones at Eaton. Catching up with defendant,- Eaton struck him with his fist and kicked the knife, which he was still holding, out of his hand. A policeman then appeared upon the scene and took defendant in custody: While in charge of the policeman, defendant heard some one say that Cook was dying, and fearing, as he said, a mob, he broke away from the officer and made his escape, going to South Des Moines, where after an exciting chase he was captured in a patch of weeds in the south part of the city and taken to police headquarters. Cook died from the effects of his wound some time the next day. The knife had penetrated the lung tissue, and had passed through the diaphragm into the liver; the wound being something like three and one-half inches long. Defendant claimed on the trial that he was acting in self-defense. The jury found him guilty of murder iu the first degree, and sentence was passed accordingly.

For a reversal defendant relies upon many grounds, and the briefs presented by his counsel (which are typewritten), because of failure to comply with our rules, are overburdened with alleged errors presented in such a manner that it' is difficult to arrive at the exact propositions relied upon. In general it may be said that complaint is made of the rulings- on the admission and rejection of testimony, of some of the instructions, - and finally it is insisted that the verdict is without support in the evidence. We shall not notice all the points made, for many of them are ruled by previous cases, and are not debatable.

I. Turning first to the rulings on testimony. Many complaints are made because of undue limitation placed upon the cross-examination of some of the state’s witnesses. This matter is so largely within the discretion of the trial court that reversals are few because thereof. It must be shown, before error can be predicated upon such rulings, that they were arbitrary or unfair, and resulted in prejudice to defendant. That does not appear here.

Something of the previous history of the deceased was shown by the state, over the defendant’s objections. In this there was no error. Counsel for defendant insisted upon many repetitions from the witnesses of their testimony, and upon this ground many objections were interposed by the county attorney, which were sustained by the trial court. In no instance do we find any error prejudicial to defendant. The matter sought to be shown had already been brought out, and nothing could be gained by repetition, save a useless expenditure of time.

Defendant claimed that after some words had passed between him and Cook, at the time of the fatal difficulty, Cook assaulted him with a shovel; that he (defendant) backed away as far as be could, in tbe meantime getting ■out bis knife, and that finally to save bis life or bis person from great bodily barm be stabbed deceased. Tbis was denied by some of tbe state’s witnesses, and thus arose tbe principal issue in tbe case. When arrested defendant bad some wounds, about bis bead wbicb be claimed were made by tbe sbovel, but tbe state contended that these were made by a billy in tbe bands of an officer, or officers, when tbe arrest was being made. Testimony pro and con with reference to these disputed matters was fully developed, and, while some rulings made by tbe trial court were doubtless erroneous, they were either cured by others, or were without prejudice to defendant.

II. Instructions ten and twelve, reading as follows, are complained of:

(10) A defense offered in tbis case is that of self-defense. A man acting in necessary self-defense may use ■and adopt such means as be may deem necessary acting as a reasonably prudent person would act under circumstances and even to tbe extent of doing great bodily injury, or to killing bis assailant. If you find from all tbe evidence in tbis case that tbe injury done and committed upon tbe person of Harry L. Cook wbicb caused bis death, if you find it did cause bis death, was done in necessary self-defense, then tbe law does not impute any crime, and in such case tbe ■defendant will be entitled to an acquittal. Tbe burden is upon tbe prosecution to show, beyond a reasonable doubt not only that the defendant committed tbe act complained of and inflicted tbe injury upon tbe said Harry L. Cook wbicb caused bis death, as charged in tbe indictment, but also tbe further fact, beyond a reasonable1 doubt, that said injury was not inflicted in necessary self-defense. Before a person can be excused from using a dangerous and deadly weapon in a dangerous manner that might, or does, result in great bodily injury to or the death of an assailant, it must appear to tbe defendant that tbe danger was so urgent and pressing that in order to save bis own life, or to prevent bis receiving great bodily barm, tbe use of such dangerous and deadly weapon in. a dangerous and deadly manner was absolutely necessary, and it must appear- that tbe person upon whom sucb weapon was used was tbe assailant, and that the defendant was really and in good faith' endeavoring to decline any further struggle before the blow in question was given. If tbe defendant was assaulted by the said Harry L. Cook, be bad tbe right to repel tbe attack, using sufficient force for that purpose; but, if tbe defendant was not reduced to sucb apparent extremity or danger as reasonably appeared to bim to render it absolutely necessary to use a dangerous and deadly weapon to save bis own life, or to prevent bis sustaining great bodily barm, then you can not find that tbe acts of tbe defendant in so using sucb dangerous and deadly weapon in a dangerous manner, if be did so use it, were committed in self-defense. Where a person assaulted, acting as a reasonably prudent and cautious man, believes that bis assailant is about to take bis life, or inflict upon bim •a great bodily injury, be is not required to make nice calculations and draw nice distinctions as to just bow much force be may use to shield himself from danger, but be is justified in using sucb force as an ordinarily prudent and cautious man, acting upon appearances, would in a like situation probably exercise. Where a person is assaulted by another, it is tbe duty of1 tbe person so assaulted to retreat, if retreat is safely -open to bim, before be can justify tbe use of a dangerous and deadly weapon in a dangerous manner upon bis assailant. If it is apparent that tbe danger which seems to threaten bim can be averted or prevented by any other means apparently within bis power, be is not justified in adopting or using a dangerous and deadly weapon in a dangérous manner upon bis assailant.

(12) Tbe law gives persons accused of crime tbe right to testify in their own behalf, but their credibility and tbe weight to be given to their testimony are matters exclusively for tbe jury. Therefore, in weighing the testimony of tbe defendant in tHis case, you have tbe right to take into consideration bis. manner of testifying, tbe reasonableness or unreasonableness of bis account of tbe transaction, and tbe interest in tbe result -of the ease to him, as affecting his credibility. You are not required to receive blindly the testimony of such accused person as true; but you are to consider whether it is true and made in good faith, or only for the purpose of avoiding conviction.

Such instructions have so many times been approved by this court that nothing need be done, save to cite a few cases in support thereof. Vide, State v. Thompson, 9 Iowa, 188; State v. Warner, 100 Iowa, 260; State v. Crawford, 66 Iowa, 318. The last-cited case fully sustains the tenth instruction.

III. Although there is a decided conflict in the testimony, the verdict has sufficient support, and we are not justified in interfering therewith. Defendant was ably defended, and had every advantage to which he was in law entitled. A jury has found him guilty, and that he was not acting in self-defense. If he was not so acting, then clearly he was, under the state’s testimony, guilty of murder in the first degree.

No prejudicial error appears, and the judgment must be, and it is, affirmed.  