Shields v. State , 87 Miss. 429 ( 1905 )

LLarper, Special J.,

delivered the opinion of the court.

There was but one question in this case for the jury to determine, and that was, Who was the aggressor ? On this point the direct testimony was conflicting, and it was necessary to consider the extrinsic circumstances that tended in any way to shed light on this question. The purpose and intent of Smith, the prosecutor, in seeking out the defendant, therefore, became important, and it was proper for the court below to permit the state to show that Smith had been acting as deputy sheriff under color of authority at least; that he had made out the affidavit against defendant for carrying a concealed weapon; that a warrant had been issued for defendant’s arrest, and that Smith had been appointed a special constable to serve the same. Whether his appointment was regular or not would seem to be unimportant in this case.

For the same reason, and n.ot because it was part-of the res gestae, all the evidence of Firs. FlcCaleb, offered by defendant, should have been admitted. It tended to show in some measure that Wilbur Smith went to the scene for the purpose of killing defendant, and that he expected and prepared for an affray by having both his brothers on hand, armed and ready for action.

For this error of the court in excluding the greater part of Mrs. McGaleVs testimony, this cause is reversed and remanded.