King v. State , 65 Miss. 576 ( 1888 )

Arnoud, C. J.,

delivered the opinion of the Court.

There is testimony in the record that Cox, the deceased, :jmade threats against the life of appellant a short time before the homicide, and that these threats had been communicated to appellant; that the deceased wás a violent, vindictive and dangerous man, and that these characteristics were known to-appellant, and that while appellant and deceased were discussing the settlement of a controversy between them pending in a justices’ court, deceased declared several times, in a loud and angry manner, he would pay nothing, and then cursed appellant and said, “ I will kill you if you keep on bothering me, or if you say anything more to me about it, and raised up and run his hand into his pocket as if he was going to-kill me sure enough,” when appellant drew his pistol and fire'd.

In this state of case appellant offered testimony to show that deceased habitually went armed with concealed deadly weapons, and that appellant was cognizant of this fact, and that deceased was generally reputed, in the community in which he lived, to go so armed, and that this was known to-appellant. The court refused to allow this testimony to go to the jury, and in doing so, it erred.

Under the circumstances stated, it was for the jury to determine whether or not appellant had reasonable cause to apprehend danger to his life or limb at the time of the of killing, and to enable the jury to do this fairly and intelligently, by putting themselves as far as possible in the place of the appellant at the time-of the killing and viewing the situation as it appeared to him,, the testimony should have been admitted. The same principle which justified the admission of evidence as to the character' and threats of the deceased, rendered the excluded testimony competent. Payne v. Com., 1 Met. (Ky.), 370; The State v. Smith, 12 Richardson, 430; Moriarty v. The State, 62 Miss., 654 ; State v. Graham, 61 Iowa, 608.

Appellant also tendered witnesses to prove that the deceased, had been engaged in frequent fights in which he used deadly weapons, and that the witnesses had seen him in several fights-in which he made deadly assaults on his antagonists, and that-appellant knew these facts. The court properly sustained objections to this testimony. The character of the deceased could not be shown by particular ads of misconduct on his part,.

in no way connected with the accused. That, could be proved only by evidence of his general reputation. 1 Bish. Cr. Pro., Sec. 1117; 2 Ib., see. 617. Moriarty v. The State, 62 Miss., 654.

It was not error for the court to-refuse to allow appellant to prove the declaration made by him after he was arrested, and but little more than a minute after the shooting, as to the reason why he shot the deceased. Such declaration was not a part of anything then being done, but a mere statement in regard to a past transaction, and was therefore incompetent. Mayes v. The State, 64 Miss., 329.

As a new trial must be awarded on account of the error above indicated, it seems unnecessary to consider other errors assigned.

Reversed and remanded.