CORFMAN, J.
Al. Williams, the defendant and appellant here, was, on the 1st day of June, 1916, convicted in the district court of Sevier county of the crime of assault with a deadly weapon with intent to do bodily harm, under an information charging an assault with intent to commit murder.
Substantially the facts established at the trial are asi follows:
The defendant, at about 11:30 o’clock on the night of April [322]*32227, 1916, was a visitor at a rented one-room house or cabin in Richfield, Utah, of a Mrs. Clara McCabe, the wife of one M. J. McCabe. The McCabes, until recently before the offense complained of against the defendant, Al. Williams, had been living together as husband and wife and residing at Marysvale, Utah. The defendant had also lived at Marys-vale until a short time before the 27th day of April, 1916; and Mrs. McCabe and the defendant, Williams, had come to Richfield at about the same time, and both were comparative strangers at Richfield.
The McCabes, while living together as husband and' wife at Marysvale, had domestic difficulties and had separated, the wife, Clara McCabe, coming to Richfield and taking up her abode there alone at this small house or cabin. The defendant, Williams, on coming to Richfield at about the same time as Mrs. McCabe, had engaged his services to a liveryman, one George Emett, whose home was but a short distance from the cabin rented and occupied by Mrs. McCabe. During the month of March previous to the act complained of against the defendant, Williams, the husband of Mrs. McCabe, had expressed to one Mrs. Munson an intention to kill both his wife, Clara McCabe, and the defendant, Williams, and this threat had been communicated by Mrs. Munson to the defendant, Williams, and Mrs. McCabe as well, a few days after the threat was made.
During the early evening of April 27, 1916, both the defendant, Williams, and Mrs. McCabe had been visiting at the home of the Emett family, at Richfield, a short distance from the Mrs. McCabe cabin, and at about nine thirty o’clock of that evening the defendant, Williams, accompanied Mrs. McCabe from the Emett home to her .cabin, entering and remaining there with her alone until midnight. Dan Borg, the city marshal of Richfield, having been apprised by citizens of the conduct of the defendant, Williams, and Mrs. McCabe, in company with his brother, Hans Borg, deputized to assist the marshal, proceeded at about nine thirty o’clock to the McCabe cabin to investigate. The city marshal and his brother, Hans Borg, remained outside the cabin from about nine thirty until about eleven thirty p. m. observing the conduct and listening [323]*323to conversation of tbe defendant and Mrs. McCabe, during which, time the light in the cabin had been turned out; the marshal and Hans Borg at about eleven thirty left the cabin, crossed the street, had a consultation, and at about midnight returned to the cabin, then dark, and, finding the door of the cabin locked, proceeded, for the purpose of making an arrest of the defendant, to break open the locked door of the cabin for entrance, and on breaking open the door and throwing a flash light on the defendant and Mrs. McCabe, then in bed, the defendant immediately arose from the bed and fired two bullet shots from a thirty-eight caliber revolver at the marshal and his brother, both taking effect on the body of Hans Borg, one in the left' forearm, the other penetrating the abdomen. The marshal and Hans Borg then withdrew from the door, and the door' was then barricaded from the inside. The defendant and Mrs. McCabe remained in the cabin until about three o ’clock the following morning, when the defendant Williams was placed under arrest by the sheriff of Sevier county.
At the j time of the attempted, arrest of the defendant Williams by the marshal and his brother, Hans Borg, no complaint had been filed charging either the defendant or Mrs. McCabe with crime, and no warrant issued for his arrest. The defendant, Williams, then had no acquaintance with the marshal or his brother, Hans Borg, as officers or otherwise, and both the defendant and Mrs. McCabe testified at the trial that they supposed the door of the cabin had been broken open by the husband of Mrs. McCabe for the purpose of killing them, and that the defendant had shot in self-defense.
Dan Borg, the city marshal, testified that after seeing and hearing what he and his brother, Hans-Borg, did see and hear at the cabin, and before the door was forced open, they had become convinced that the defendant and Mrs. McCabe were then having illicit sexual relations.
As to the foregoing statement of facts there is but little, if any, controversy, disclosed by the record on appeal.
In prosecuting an appeal to this court, the defendant makes assignment of twelve errors. We will here discuss only such [324]*324as appear to be material and as are urged and apparently relied upon by the appellant for reversal.
1. First, it is contended that the trial court committed error in denying defendants motion for a continuance of the trial. The application was made to the court predicated on the affidavit of the defendant, stating in a general way that he was unprepared to go to trial; that he was impecunious and unable to pay witnesses for attendance upon trial; that one of his witnesses would be unable to attend trial by reason of the physical infirmities of the witness.
1 It has been so repeatedly held by this court that the granting of a continuance in a criminal case is a discretionary matter with the court, and will not be reversible error, unless the courts refusal to grant a continuance is clearly prejudicial, that we do not deem it worth while to discuss it here.
2 The defendant’s affidavit does not in our opinion, appear to be of sufficient merit to have justified the court in granting the motion; besides, the record in no way discloses that the defendant was prejudiced by the court’s refusal to grant a continuance, and the court’s refusal was amply justified.
3 2. The second alleged error complained of by appellant was in the court permitting W. A. Cheal, a witness for the state, to testify as to what occurred, the condition of, and what was said and done by, Hans Borg immediately after his having been shot by defendant. To much of the testimony of this witness objected to, no exception was taken by appellant at the time nor after its introduction. The testimony relates to the effect of the shots and the nature of the wounds received by Hans Borg at the time of the shooting. It is not at all disputed by the defendant that the shots were fired by him; and we cannot conceive how this testimony could in any manner have been prejudicial to defendant even had it not been permissive, as in our opinion it was.
4 3. The third and fourth assignments of error relate to like testimony given by the states witness Anderson and the failure of the court to instruct the jury not to consider the evidence. Here again we are of the opinion the [325]*325court committed no error, and certainly appellant has no right to complain after failing as he did do, to take exception's to the rulings and instructions of the court when given.
4. In-his fifth assignment of error the appellant complains of the court in denying his application for an instruction to the jury to return a verdict in his favor of not guilty, at the conclusion of the state’s case.
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CORFMAN, J.
Al. Williams, the defendant and appellant here, was, on the 1st day of June, 1916, convicted in the district court of Sevier county of the crime of assault with a deadly weapon with intent to do bodily harm, under an information charging an assault with intent to commit murder.
Substantially the facts established at the trial are asi follows:
The defendant, at about 11:30 o’clock on the night of April [322]*32227, 1916, was a visitor at a rented one-room house or cabin in Richfield, Utah, of a Mrs. Clara McCabe, the wife of one M. J. McCabe. The McCabes, until recently before the offense complained of against the defendant, Al. Williams, had been living together as husband and wife and residing at Marysvale, Utah. The defendant had also lived at Marys-vale until a short time before the 27th day of April, 1916; and Mrs. McCabe and the defendant, Williams, had come to Richfield at about the same time, and both were comparative strangers at Richfield.
The McCabes, while living together as husband and' wife at Marysvale, had domestic difficulties and had separated, the wife, Clara McCabe, coming to Richfield and taking up her abode there alone at this small house or cabin. The defendant, Williams, on coming to Richfield at about the same time as Mrs. McCabe, had engaged his services to a liveryman, one George Emett, whose home was but a short distance from the cabin rented and occupied by Mrs. McCabe. During the month of March previous to the act complained of against the defendant, Williams, the husband of Mrs. McCabe, had expressed to one Mrs. Munson an intention to kill both his wife, Clara McCabe, and the defendant, Williams, and this threat had been communicated by Mrs. Munson to the defendant, Williams, and Mrs. McCabe as well, a few days after the threat was made.
During the early evening of April 27, 1916, both the defendant, Williams, and Mrs. McCabe had been visiting at the home of the Emett family, at Richfield, a short distance from the Mrs. McCabe cabin, and at about nine thirty o’clock of that evening the defendant, Williams, accompanied Mrs. McCabe from the Emett home to her .cabin, entering and remaining there with her alone until midnight. Dan Borg, the city marshal of Richfield, having been apprised by citizens of the conduct of the defendant, Williams, and Mrs. McCabe, in company with his brother, Hans Borg, deputized to assist the marshal, proceeded at about nine thirty o’clock to the McCabe cabin to investigate. The city marshal and his brother, Hans Borg, remained outside the cabin from about nine thirty until about eleven thirty p. m. observing the conduct and listening [323]*323to conversation of tbe defendant and Mrs. McCabe, during which, time the light in the cabin had been turned out; the marshal and Hans Borg at about eleven thirty left the cabin, crossed the street, had a consultation, and at about midnight returned to the cabin, then dark, and, finding the door of the cabin locked, proceeded, for the purpose of making an arrest of the defendant, to break open the locked door of the cabin for entrance, and on breaking open the door and throwing a flash light on the defendant and Mrs. McCabe, then in bed, the defendant immediately arose from the bed and fired two bullet shots from a thirty-eight caliber revolver at the marshal and his brother, both taking effect on the body of Hans Borg, one in the left' forearm, the other penetrating the abdomen. The marshal and Hans Borg then withdrew from the door, and the door' was then barricaded from the inside. The defendant and Mrs. McCabe remained in the cabin until about three o ’clock the following morning, when the defendant Williams was placed under arrest by the sheriff of Sevier county.
At the j time of the attempted, arrest of the defendant Williams by the marshal and his brother, Hans Borg, no complaint had been filed charging either the defendant or Mrs. McCabe with crime, and no warrant issued for his arrest. The defendant, Williams, then had no acquaintance with the marshal or his brother, Hans Borg, as officers or otherwise, and both the defendant and Mrs. McCabe testified at the trial that they supposed the door of the cabin had been broken open by the husband of Mrs. McCabe for the purpose of killing them, and that the defendant had shot in self-defense.
Dan Borg, the city marshal, testified that after seeing and hearing what he and his brother, Hans-Borg, did see and hear at the cabin, and before the door was forced open, they had become convinced that the defendant and Mrs. McCabe were then having illicit sexual relations.
As to the foregoing statement of facts there is but little, if any, controversy, disclosed by the record on appeal.
In prosecuting an appeal to this court, the defendant makes assignment of twelve errors. We will here discuss only such [324]*324as appear to be material and as are urged and apparently relied upon by the appellant for reversal.
1. First, it is contended that the trial court committed error in denying defendants motion for a continuance of the trial. The application was made to the court predicated on the affidavit of the defendant, stating in a general way that he was unprepared to go to trial; that he was impecunious and unable to pay witnesses for attendance upon trial; that one of his witnesses would be unable to attend trial by reason of the physical infirmities of the witness.
1 It has been so repeatedly held by this court that the granting of a continuance in a criminal case is a discretionary matter with the court, and will not be reversible error, unless the courts refusal to grant a continuance is clearly prejudicial, that we do not deem it worth while to discuss it here.
2 The defendant’s affidavit does not in our opinion, appear to be of sufficient merit to have justified the court in granting the motion; besides, the record in no way discloses that the defendant was prejudiced by the court’s refusal to grant a continuance, and the court’s refusal was amply justified.
3 2. The second alleged error complained of by appellant was in the court permitting W. A. Cheal, a witness for the state, to testify as to what occurred, the condition of, and what was said and done by, Hans Borg immediately after his having been shot by defendant. To much of the testimony of this witness objected to, no exception was taken by appellant at the time nor after its introduction. The testimony relates to the effect of the shots and the nature of the wounds received by Hans Borg at the time of the shooting. It is not at all disputed by the defendant that the shots were fired by him; and we cannot conceive how this testimony could in any manner have been prejudicial to defendant even had it not been permissive, as in our opinion it was.
4 3. The third and fourth assignments of error relate to like testimony given by the states witness Anderson and the failure of the court to instruct the jury not to consider the evidence. Here again we are of the opinion the [325]*325court committed no error, and certainly appellant has no right to complain after failing as he did do, to take exception's to the rulings and instructions of the court when given.
4. In-his fifth assignment of error the appellant complains of the court in denying his application for an instruction to the jury to return a verdict in his favor of not guilty, at the conclusion of the state’s case. Under the evidence then produced and submitted by the state the question as to whether ■the defendant was innocent or guilty, as charged in the information, or was guilty of any of the lesser crimes included thereunder, had become a question of fact to be passed upon 'by the jury under proper instructions, and was not a question of law to be determined by the court; and we are of thfe opinion that this motion of the defendant was at the time properly denied by the court.
5 5. Appellant for his sixth assignment of error complains of the court in overruling his objection taken to the question propounded by the state to him on cross-examination as follows:
“Well, now isn’t it a fact Mr. Williams that there was some trouble at Marysvale in the latter part of the month of March when Mr. McCabe came to the residence of himself and Mrs. McCabe in Marysvale in the early morning when you and Mrs. McCabe were placed under arrest?”
This assignment of error, and also the assignments numbered 7, 8, and 8-J:, were inquiries relating to the conduct and associations of the defendant with Mrs. McCabe, and may be considered together.
It is well to bear in mind that the defendant had offered himself as a witness in his own behalf; that he had been testifying on his direct examination, not only as to his past life and conduct in a general way, but more especially concerning his conduct and associations with Mrs. McCabe at the time and preceding the alleged offense for which he was being tried.
Comp. Laws 1907, Section 5015, provides:
“If a defendant offers himself as a witness, he may be cross-examined by the counsel for the state the same as any •other witness.”
[326]*3266 •It is not contended by appellant that the questions complained of in any manner tended to degrade Mm, and had the witness done so he could have claimed Ms personal privilege, wMch he did not attempt to do either personally or by counsel. The state had a right to test the credibility of the defendant when he offered himself as a witness, and it was within the sound discretion of the trial court to determine whether the limits of his cross-examination was within the general rule and as has been repeatedly so held by tMs court. People v. Hite, 8 Utah, 461, 33 Pac. 254; People v. Larsen, 10 Utah, 143, 37 Pac. 258.
6. The remaining assignments of error mentioned by appellant — ninth, the refusal of the trial court to grant appellant’s motion for a new trial, tenth, that the verdict is against the evidence and the evidence insufficient to sustain the verdict, and eleventh, that the jury wholly ignored the instructions of the court — we will discuss as a whole and in conclusion of our opinion as to whether the verdict of the jury and the judgment of the trial court should be sustained and affirmed, or set aside and reversed.
The appellant strenuously contends that he had committed no crime, and that the shooting of Hans Borg by him occurred while resisting an unlawful arrest, an invasion of his rights as a citizen, and that, under the law and the evidence produced at the trial, he was justified in doing all that he did do. With this contention of appellant we cannot agree. The arrest of the defendant was attempted in the mghttime, when he had seen fit to keep the company of a wife of another alone, and until the unseemly hour of midnight, with the room darkened, and, according to his own testimony, after having been threatened with death by the husband on account of real or fancied wrongs as they might be.
The city marshal of Richfield, assisted by Ms brother, Hans Borg, from early evening until midnight, when the arrest of the defendant was attempted by them, had been observing the conduct of the defedant and Mrs. McCabe behind her locked cabin door, when they, as officers of the law, had become convinced that the defendant was having illicit sexual intercourse with Mrs. McCabe, and that it was their duty as such [327]*327officers to forthwith apprehend and arrest the defendant. The conduct of the defendant and Mrs. McCabe, as testified to by the witness Marshall Dan Borg, certainly justified their conclusions, and the admitted faets, testified to by both the defendant and Mrs. McCabe as well, would move any officers mindful of their duty to seek to place the defendant under arrest at the time and place they attempted to do so.
Comp. Laws 1907, Section 4637, subd. 5, provides that an officer may arrest a person without warrant “at night, when there is reasonable cause to believe that he has committed a felony.” As to whether the officers had reasonable cause to believe that the appellant here had committed and was then committing, a felony at the time and place the arrest was sought to be made, a casual review of the record, to our mind, would satisfy the most technical and exacting individual and disclose an abundance of testimony to be submitted to a jury to determine whether the officers had' been justified in their conclusions.
We take it as admitted that an arrest for a felony may be made by day or by night, as provided by our statute (Section 4637, supra); that the person making the arrest need not inform the person sought to be arrested, when “engaged in the commission of or an attempt to commit an offense, or is pursued immediately after its commission, or after an escape.” Comp. Laws 1907, Section 4642. Counsel contends, however, that before the officers had any right to break open the door of the McCabe cabin the officers should have first demanded admittance and explained their purpose, founding his contention on the provisions of Comp. Laws 1907, Section 4645, which provides:
“To make an arrest, a private person, if the offense is a felony, and in all cases a peace officer, may break open the door or window of the building in which the person to be arrested is, or in which they have reasonable grounds for believing him to be, after having demandéd admittance and explained the purpose for which admittance is desired.”
True, the officers Borg failed to strictly comply with this statute by not' demanding admittance and explaining their purpose before breaking open the door of the McCabe cabin, [328]*328as the.testimony shows; however, under the facts and circumr stances as disclosed by the record in this ease, it cannot.-be very material whether or not the officers first demanded admittance and explained their purpose, for, according to the testimony of both the defendant and Mrs. McCabe, for a considerable length of time before the door was broken in they were apprised of the presence of the officers on the outside of the cabin. The revolver had been provided the defendant by Mrs. McCabe in fear of and in anticipation that it was the husband of Mrs.' McCabe seeking to assail, and who, under the law and under the circumstances, would have been justified in doing so. And while the defendant was thus in watchful waiting for the husband, the officer Hans Borg opened the screen door, tried the inner door, and, finding it locked, the officer Dan Borg then, and before the breaking in of the d.oor, warned the defendant by saying, .“This is the officers, and we are coming in,” then pushed upon the door with his hands, and, failing to push it open, kicked it open with his foot.
.Under these circumstances, and before any entrance of the officers, and while they were outside of the cabin at the open doorway, without a word of command or warning whatsoever to desist, the defendant arose from the bed occupied by himself and Mrs. McCabe and fired the two shots into the body of the officer Hans Borg, for which he stands convicted.
7 .The trial court in this case having expressly instructed the jury that the attempted arrest of the defendant by the officers, was contrary to law, it was for the jury to determine from the facts and circumstances whether the defendant was to be found guilty or not guilty of the offense of which he stands convicted by trial in the lower court.
This court, in the case of State v. Anselmo, 46 Utah, 137, 148 Pac. 1071, speaking through Mr. Justice Frick of the rights of the citizen to resist unlawful arrest, in harmony with an unbroken line of authorities, says:
“It certainly- is not the law — and, we trust, never will he in this jurisdiction — that a citizen may kill an officer with impunity merely because such officer may make an attempt to arrest the citizen without legal authority so- to do. True, the right of the citizen to enjoy [329]*329.liberty at all times is sacred, and may not be interfered with without legal right or authority by any one. Yet, upon the other hand, the citizen may not ruthlessly take the life of any one who may interfere or attempt to interfere with that liberty. Where an unlawful arrest is attempted by an officer or another,' the person sought to be thus unlawfully arrested may, no doubt, resist such an arrest with all proper and reasonable means. He may, however, not kill the offending officer or person, unless it reasonably appears to such citizen that his life or limb is in danger. In other words, life may not be sacrificed in such cases, unless it is done pursuant to the 'right of self-defense, the same as in other cases of personal trespass/’
■ Tbe appellant here, immediately after the officers had broken- open the door ■ of the dwelling, not his dwelling, bnt the dwelling of a woman with whom his associations were snch as had prompted her husband to make threats to kill ■him, without any inquiry or warning, and before the officers ^had any opportunity to enter or withdraw, or advise him 'of their purpose to arrest him,' ruthlessly proceeded to fire the •shots into the body of the officer and abide the attending results; and his intent and purposes in so doing, we think, should have been and were most properly submitted to the jury.
■ Under all the facts and circumstances of this case, as disclosed by the record on this appeal, we are of the opinion that no material error — prejudicial error — was committed in the trial and conviction of appellant. Therefore the judgmént of the trial court is affirmed.
FRICK, C. J., concurs.