¶1(after stating the facts.) The argument of the attorneys was to the effect that Brock and Allgood had entered into a conspiracy to kill Parsons. This argument was based on the testimony of the witness Humphreys. The testimony of Humphreys was incompetent. Appellant had not been charged with entering into a conspiracy with Allgood to kill Parsons, nor had there been any proof of such conspiracy. In the absence of such allegation or proof, it was collateral to the issue and wholly incompetent for the State to attempt to prove by witness Humphreys that Allgood told him he was present when Brock killed Parsons. In order to avoid an interminable multiplication of issues, it is a settled rule of practice that when a witness is cross examined on a matter collateral to the issue, he can not, as to his answer, be subsequently contradicted by the party putting the question. Wharton’s Criminal Evidence, § 484; McAlister v. State, 139 S. W. 684; 1 Greenleaf, Ev. § 449. See Drake v. State, 29 Tex. App. 269. See Williams v. State, 19 So. 826. The argument was improper and prejudicial.
¶2The court also erred in permitting attorney Jones, in commenting upon instruction No. 5, set out in statement, to say: “The instruction means that, the killing being proved, the burden of proving that he was justified in doing it is on the defendant;, and if the defendant does not prove to your satisfaction that he is not guilty, you must convict him of murder.” The remarks of the counsel, sanctioned by the court in its refusal to sustain an objection to them, were a misinterpretation of the instruction that had been given by- the court, and were an incorrect statement of the law. It was a statement, too, in direct conflict with the instruction upon which the attorney was commenting.
¶3The court correctly instructed the jury in the instruction that the burden rested upon the State to prove the crime charged, and that this burden did not, at any time, shift to the defendant, but, according to the construction which the attorney placed upon the instruction, with the sanction of the court, the' jury were told in effect that,.after the killing had been proved by the State, then the burden shifted to the defendant to prove that he was not guilty of the crime charged, and that he must make such proof, too, to the satisfaction of the jury. This was well calculated to confuse and mislead the jury, and to cause them to fail to understand the true meaning of the instruction.
¶4The killing being proved, unless the evidence on the part of the State shows circumstances of mitigation, justification, or excuse, it devolves upon the appellant if he relies upon such circumstances to show them, but the burden is still .on the State to show that the defendant is guilty of every grade or degree of crime included in the indictment. The burden, in other words, in a charge for murder, never shifts to the defendant, but always remains on the State. Cogburn v. State, 76 Ark. 110.
¶5There was no prejudicial error in the court's refusing to allow the constable, Oliver Smith, to testify as to what was said to him when he surrendered and confessed to the killing. This offered testimony was fully covered by the appellant in his testimony on the witness stand, and he received the benefit of it. Appellant, therefore, could not have been prejudiced by the refusal of the court to admit the testimony.
¶6The judgment is reversed, and the cause remanded for a new trial.