#### Bieard v. State.

Crim. 3881

Opinion delivered May 7, 1934.

*218 Toon Harper and John P. Roberts, for appellant.

Hal L. Noo'OMood, Attorney General, and Robert F. Smith, Assistant, for appellee.

Mehaffy, J.

Appellant was indicted by tbe grand jury of Sebastian County for tbe crime of murder in tbe first degree, for tbe killing of Elmer Best. Upon a trial of the case in tbe circuit court, he was found guilty of murder in tbe second degree, and bis punishment fixed at 12 years in tbe penitentiary. To reverse tbis judgment of conviction, tbis appeal is prosecuted.

The evidence is in conflict, but there is no contention that tbe evidence was not sufficient to justify tbe jury in returning a verdict of guilty. It would therefore serve no useful purpose to set out the evidence as to tbe manner of tbe killing. Tbe killing was admitted.

Tbe appellant contends for a reversal of the judgment, first, because be alleges that the court erred in giving instruction No. 8, given at the request of tbe State. Instruction No. 8 reads as follows:

> “If you find from tbe evidence in tbis case, beyond a reasonable doubt, that at any time from tbe beginning of a difficulty between tbe defendant and deceased on tbe square at Greenwood in which tbe deceased was shot and killed by tbe defendant, if you find there was such a difficulty, that tbe defendant could have reasonably withdrawn from or avoided tbe difficulty with safety to himself, but failed to do so, be could not justify the killing on tbe ground of self-defense. ’ ’

It is urged by appellant that there was no testimony introduced to show that the defendant was tbe aggressor in tbe difficulty in which deceased was killed. To support his contention be cites several cases, but we do not think these cases are in point.

An instruction similar to instruction No. 8 was given in the case of Crews v. State, 179 Ark. 94, 14 S. W. (2d) 261. Tbe court in that case gave the following instruc*219tion: “You are instructed that, although you may believe that the defendant, Jim Crews, fired the first shot in necessary self-defense, still, if you believe that the second shot was fired at a time when the defendant, as a reasonably prudent person, acting on the facts and cirT eumstances, wdthout fault or carelessness on his part, did not honestly believe that it was reasonably necessary to further defend himself, then the defendant would he guilty of murder in the first degree, or murder in the second degree, or manslaughter, provided you believe that the second shot contributed in any manner to the death of the deceased.”

In other words, no matter who the aggressor may be, if the time comes in the difficulty when the slayer could reasonably withdraw, with safety to himself, he cannot thereafter kill his antagonist and claim self-defense. Every one has a right to repel force with force, but he does not have the right to. use more force than is necessary. Therefore the court correctly told the jury that, if the defendant could have reasonably withdrawn from or avoided the difficulty with safety to himself, but failed to do so, he could not justify the killing on the ground of self-defense.

In one of the oases cited and relied on by appellant, the court said: “He was not bound to retreat if deceased first assaulted him, with an intent to murder, but might have stood his ground, and, if need be, killed his assailant. ’ ’ LaRue v. State, 64 Ark. 144, 41 S. W. 53.

You will observe that the court stated he could kill his assailant if need be, if it were necessary in his self-defense. But, no matter who the aggressor is, one cannot justify a killing if he could have reasonably withdrawn with safety to himself. One assaulted is not required to retreat unless he can do so with safety to himself, but, if he can withdraw with safety, and refuses to do so, but kills his antagonist, he cannot justify the killing on the ground of self-defense.

Appellant next contends that the court erred in permitting the State to prove the general reputation of appellant three or four years prior to the difficulty. This *220court has said: “For the purpose of testing the credibility of appellant, who testified in the case, the prosecuting attorney had a right to cross-examine him concerning his past conduct and immoralities.” Curtis v. State, 188 Ark. 36, 64 S. W. (2d) 86.

This court said: “Appellant was asked all sorts of questions about having been a gambler and about other offenses and immoralities. This was merely for the purpose of testing his credibility and was admissible as such. This court so decided in the case of Hollingsworth v. State, 53 Ark. 387, 14 S. W. 41. This was with regard to a witness other than the accused himself, but we have since then frequently held that the same rule applies to a defendant in a criminal prosecution when he takes the witness stand in his own behalf. ’ ’ Shinn v. State, 150 Ark. 215, 234 S. W. 636.

It is next contended that the court erred in not setting aside the verdict of the jury because of misconduct of the jurymen. The appellant contends that some of the jurors at different times left the jury room and went to the toilet or rest room, and that some citizen was in the rest room at the same time.

Section 3187 of Crawford & Moses’ Digest provides: “The jurors, before the case is submitted to them, may, in the discretion of the court, be permitted to separate, or be kept together in the charge of proper officials.”

Section 3190 of Crawford & Moses’ Digest provides: “After the cause is submitted to the jury they must be kept together in the charge of the sheriff, in the room provided for them, except during their meals and periods for sleep, unless they be permitted to separate by order of the court.”

The record is silent as to whether the court made any order, but we said in a recent case: “Where the court permits the jurors to separate, or where there has been no order keeping them together, the burden rests upon the complaining party to show that prejudice resulted. There is no evidence in the record tending to show that anything was done by the juror or any one else while he was absent from his fellow jurors that resulted in any *221prejudice to the appellant.” Wallace v. State, 180 Ark. 627, 22 S. W. (2d) 395.

There is nothing in the record in the instant case tending to show that any prejudice resulted or that anything wrong was done by any of the jurors.

The appellant does not abstract the instructions, but we have carefully examined them, and find no error either in giving or refusing to give the instructions. We find no error in the record, and the judgment of the circuit court is affirmed.