Niblack, J.
This was a prosecution for murder, under section 1904, R. S. 1881.
The indictment was in six counts. The first count charged the appellant, William Boyle, with having, on the 15th day of March, 1884, at the county of Allen, in this State, unlawfully, purposely,' feloniously, and with premeditated malice, killed and murdered one Daniel Casey, by then and there shooting him to death with a pistol. A jury found the defendant guilty of murder in the first degree as charged above in the first count of the indictment, and fixed his punish[323]*323ment at death. After considering and overruling a motion for a new trial, the court pronounced judgment upon the verdict, and sentenced the defendant to be hung on Wednesday, the 1st day of October, 1884. 0
A freight train running from Crestline, in the State of Ohio, to Fort Wayne, in this State, stopped at Monroeville, in Allen county, early in the morning of the 15th day of March, 1884. One of the brakemen on the train found the defendant and Casey together in a box-car, in which they had been riding without authority from the conductor. The brakeman ordered both of them to leave the car, which they did without unnecessary delay. After coming out of the car, the defendant and Casey fell into a quarrel about something to which no one else gave attention. They proceeded together along one of the streets of Monroeville for a short distance when they came to a stop a few feet apart. At this point .the defendant, being seemingly very angry and much excited, declared his intention to kill Casey, and, suddenly drawing a revolving pistol from one of his pockets, fired upon him, inflicting a mortal wound from which death ensued two and a half days thereafter.
The defendant, testifying as a witness in his own behalf, stated that he had first met Casey at Bueyrus, Ohio, on the 12th day of March, three days before reaching Monroeville; that they immediately became acquainted and confidential; that on the afternoon of that day they went to a town fifteen miles north of Bueyrus, the name of which he did not remember, where, during the ensuing night, they burglariously entered some stores, by which means they obtained a large lot of knives, some razors, and a considerable amount of jewelry, all of which they concealed about their persons; that they proceeded thence, partly on foot and partly by railroad, to Lima, Ohio, where, on the night of the 14th of March, they got on to the freight train upon which they were found next morning at Monroeville; that during the night they drank considerable quantities of intoxicating liquor; that [324]*324when the brakeman ordered them out of the box-car, he, the defendant, offered him, the brakeman, one of the stolen knives to conciliate him; that Casey, on that account, became very angry and abusive to him, the defendant, saying, amongst other things, that if he, defendant, ever made so bad a “break” as that again, he, Casey, would kill him; that it was in this way that the quarrel ending in the shooting began; that at the time he, defendant, shot Casey, the latter was, and had been, striking at him with a knife; that, in consequence, the shooting was in self-defence.
Counsel for the defendant thereupon offered to prove by him that while on the freight train between Lima and Monroeville Casey told him, the defendant, that he, Casey, had shot one Fontaine, city marshal of Springfield, Illinois, while the latter was trying to arrest him for a robbery; that he had also stabbed a man at Paris, in the State of Illinois, for which he was sent to the State’s prison at Joliet, and that he, Casey, had quit carrying a pistol, as he had ascertained that a knife did its work much more quietly and with better effect. But the prosecuting attorney objecting, the court refused to permit the defendant to make the proposed proof, upon the ground that evidence of particular acts of criminal misconduct, even by his own admissions, was not admissible to establish Casey’s bad character as a violent and dangerous man, or in mitigation in any other respect, and that refusal has been made one of the principal questions upon this appeal.
In the case of Dukes v. State, 11 Ind. 557, this court said : “As a general rule, it is the character of the living — the defendant on trial for the commission of crime — and not of the person on whom the crime was committed, that is in issue, and as to which, therefore, that evidence is admissible. But, in a case like the present, where the question arises whether the accused acted, in the commission of a homicide, upon grounds that justify him in the deed, it would seem that the character of the deceased might be a circumstance to be taken into consideration. Especially might this be the case, where the accused [325]*325knew that character, and also knew, at the time, the individual by whom the attack upon him or his property was made.”
In the later case of Fahnestock v. State, 23 Ind. 231, this court further said: “ If the deceased was in the habit of becoming intoxicated, and when in that condition was quarrelsome and violent, and that fact was known to the defendant, and if it is further claimed that the deceased was intoxicated at the time the defendant met him in the saloon, a short time before his death, and that the defendant’s conduct on that occasion is claimed to have been influenced by a knowledge of the alleged violent habits of the deceased when so intoxicated, the question of such habits or disposition would seem to be one of fact rather than of general character.”
Wharton, in his work on Criminal Law, states the rule to be that, whenever it is shown that a persoü is himself attacked, it is admissible for him to put in evidence whatever could show such attack to be felonious. He may thus prove that the person assailing him had with him burglar’s instruments. He may prove him to be armed with deadly weapons. He may prove him to have been lurking in the neighborhood, on other plans of violence. He is entitled to reason with himself in this way: ‘ This man comes to my house masked, or with his face blacked; he is the same who has been prowling about in the neighborhood, and is connected with other felonious plans; I have grounds to conclude that such is his object now.’ And if so, he is also entitled to say: This man now attacking me is a notorious ruffian ; he has no peaceable business with me; his character and relations forbid any other conclusion than that his present attack is felonious.’ And if such could be a legitimate reason for him to expect and defend himself against a desperate conflict, the facts are such as he is entitled to avail himself of on trial. He must first prove that he was attacked; and this ground being laid, it is legitimate for him to put in evidence whatever would show he had ground to believe such attack to be felonious.” Vol. 1, section 641. The case of Hor[326]*326bach v. State, 43 Texas, 242, is a well considered case and gives an able exposition of the law of self-defence. The doctrine it announces is well supported by the authorities cited by it, as well as by the modern current of judicial opinion. It holds in brief that the habit of the deceased of carrying weapons, and his character for violent and passionate conduct, as well as other peculiarities constituting him a dangerous adversary, may, when the proper foundation is laid, be proven as distinct facts, and as part of the res gesta,
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Niblack, J.
This was a prosecution for murder, under section 1904, R. S. 1881.
The indictment was in six counts. The first count charged the appellant, William Boyle, with having, on the 15th day of March, 1884, at the county of Allen, in this State, unlawfully, purposely,' feloniously, and with premeditated malice, killed and murdered one Daniel Casey, by then and there shooting him to death with a pistol. A jury found the defendant guilty of murder in the first degree as charged above in the first count of the indictment, and fixed his punish[323]*323ment at death. After considering and overruling a motion for a new trial, the court pronounced judgment upon the verdict, and sentenced the defendant to be hung on Wednesday, the 1st day of October, 1884. 0
A freight train running from Crestline, in the State of Ohio, to Fort Wayne, in this State, stopped at Monroeville, in Allen county, early in the morning of the 15th day of March, 1884. One of the brakemen on the train found the defendant and Casey together in a box-car, in which they had been riding without authority from the conductor. The brakeman ordered both of them to leave the car, which they did without unnecessary delay. After coming out of the car, the defendant and Casey fell into a quarrel about something to which no one else gave attention. They proceeded together along one of the streets of Monroeville for a short distance when they came to a stop a few feet apart. At this point .the defendant, being seemingly very angry and much excited, declared his intention to kill Casey, and, suddenly drawing a revolving pistol from one of his pockets, fired upon him, inflicting a mortal wound from which death ensued two and a half days thereafter.
The defendant, testifying as a witness in his own behalf, stated that he had first met Casey at Bueyrus, Ohio, on the 12th day of March, three days before reaching Monroeville; that they immediately became acquainted and confidential; that on the afternoon of that day they went to a town fifteen miles north of Bueyrus, the name of which he did not remember, where, during the ensuing night, they burglariously entered some stores, by which means they obtained a large lot of knives, some razors, and a considerable amount of jewelry, all of which they concealed about their persons; that they proceeded thence, partly on foot and partly by railroad, to Lima, Ohio, where, on the night of the 14th of March, they got on to the freight train upon which they were found next morning at Monroeville; that during the night they drank considerable quantities of intoxicating liquor; that [324]*324when the brakeman ordered them out of the box-car, he, the defendant, offered him, the brakeman, one of the stolen knives to conciliate him; that Casey, on that account, became very angry and abusive to him, the defendant, saying, amongst other things, that if he, defendant, ever made so bad a “break” as that again, he, Casey, would kill him; that it was in this way that the quarrel ending in the shooting began; that at the time he, defendant, shot Casey, the latter was, and had been, striking at him with a knife; that, in consequence, the shooting was in self-defence.
Counsel for the defendant thereupon offered to prove by him that while on the freight train between Lima and Monroeville Casey told him, the defendant, that he, Casey, had shot one Fontaine, city marshal of Springfield, Illinois, while the latter was trying to arrest him for a robbery; that he had also stabbed a man at Paris, in the State of Illinois, for which he was sent to the State’s prison at Joliet, and that he, Casey, had quit carrying a pistol, as he had ascertained that a knife did its work much more quietly and with better effect. But the prosecuting attorney objecting, the court refused to permit the defendant to make the proposed proof, upon the ground that evidence of particular acts of criminal misconduct, even by his own admissions, was not admissible to establish Casey’s bad character as a violent and dangerous man, or in mitigation in any other respect, and that refusal has been made one of the principal questions upon this appeal.
In the case of Dukes v. State, 11 Ind. 557, this court said : “As a general rule, it is the character of the living — the defendant on trial for the commission of crime — and not of the person on whom the crime was committed, that is in issue, and as to which, therefore, that evidence is admissible. But, in a case like the present, where the question arises whether the accused acted, in the commission of a homicide, upon grounds that justify him in the deed, it would seem that the character of the deceased might be a circumstance to be taken into consideration. Especially might this be the case, where the accused [325]*325knew that character, and also knew, at the time, the individual by whom the attack upon him or his property was made.”
In the later case of Fahnestock v. State, 23 Ind. 231, this court further said: “ If the deceased was in the habit of becoming intoxicated, and when in that condition was quarrelsome and violent, and that fact was known to the defendant, and if it is further claimed that the deceased was intoxicated at the time the defendant met him in the saloon, a short time before his death, and that the defendant’s conduct on that occasion is claimed to have been influenced by a knowledge of the alleged violent habits of the deceased when so intoxicated, the question of such habits or disposition would seem to be one of fact rather than of general character.”
Wharton, in his work on Criminal Law, states the rule to be that, whenever it is shown that a persoü is himself attacked, it is admissible for him to put in evidence whatever could show such attack to be felonious. He may thus prove that the person assailing him had with him burglar’s instruments. He may prove him to be armed with deadly weapons. He may prove him to have been lurking in the neighborhood, on other plans of violence. He is entitled to reason with himself in this way: ‘ This man comes to my house masked, or with his face blacked; he is the same who has been prowling about in the neighborhood, and is connected with other felonious plans; I have grounds to conclude that such is his object now.’ And if so, he is also entitled to say: This man now attacking me is a notorious ruffian ; he has no peaceable business with me; his character and relations forbid any other conclusion than that his present attack is felonious.’ And if such could be a legitimate reason for him to expect and defend himself against a desperate conflict, the facts are such as he is entitled to avail himself of on trial. He must first prove that he was attacked; and this ground being laid, it is legitimate for him to put in evidence whatever would show he had ground to believe such attack to be felonious.” Vol. 1, section 641. The case of Hor[326]*326bach v. State, 43 Texas, 242, is a well considered case and gives an able exposition of the law of self-defence. The doctrine it announces is well supported by the authorities cited by it, as well as by the modern current of judicial opinion. It holds in brief that the habit of the deceased of carrying weapons, and his character for violent and passionate conduct, as well as other peculiarities constituting him a dangerous adversary, may, when the proper foundation is laid, be proven as distinct facts, and as part of the res gesta, when such facts which might be reasonably supposed to have had an influence upon the defendant’s mind in inducing the belief either that his life was in danger, or. that some great bodily harm was likely to result to him. This case impresses us as being not only well supported by authority, but as being also in accord with the principles of justice, and of sound morality. It is cited and commented upon approvingly in a late edition of Greenleaf on Evidence. See vol. 3, 14th ed., sections 27 and 28 and notes.
As, in personal conflicts, every man is permitted, within reasonable limits, to act upon appearances and to determine for himself when he is in real danger, it would seem to follow, as an inevitable consequence, that whoever relies upon appearances, and a reasonable determination upon such appearances, as a defence in a case of homicide, ought to be allowed to prove every fact and circumstance known to him, and connected with, the deceased, which was fairly calculated to create an apprehension for his own safety. Any narrower rule than this would, we think, prove inadequate to full justice in all cases of homicide, and would, in many cases, operate as a serious abridgment of the law of self-defence.
When properly construed, the rule recognized by the case of Horbach v. State, supra, simply permits all the facts and assumptions upon which a defendant acted,- under a claim of self-defence, in taking the life of his adversary, to be proved at the trial, and, as thus construed, we know of no rule more in accordance with the principles of justice.
[327]*327In the light of the authorities cited, and of our deductions from the general principles enunciated by them, we can only •come to one conclusion, and that is, that the court erred in excluding the proposed testimony of the appellant as to the communications made to him by Casey concerning himself, •during the night preceding the homicide, and that for that error the judgment will have to be reversed
One question remains which ought to be ruled upon at the present hearing to relieve the embarrassment which might •otherwise result when the cause shall be again tried. The dying declaration of Casey, which had been reduced to writing, was, after satisfactory preliminary proof, read in evidence by the prosecuting attorney, as follows:
“ Dying declaration of Daniel Casey, taken at Monroeville, Allen county, Indiana, on the 16th day of March, 1884. Q. What is your name and residence? A. Daniel Casey; Norwich, Connecticut. Q. Have you given up all hope of life? A. I have, of course. Q,. Is this declaration which you now make free from all malice? A. Yes, it is; I forgive him. Q,. What is the name of the man who shot you? A. I don’t know his name. Q. Where were you when he shot you ? A. On the corner of Railroad and Empire streets, in the town of Monroeville, Allen county, Indiana. Q,. Was the man whom you identified on the 15th of March, in the presence of the marshal of Fort Wayne, J. B. Neezer, Dr. C. A. Lester, and others, the man who shot you ? A. Yes, sir; that was the man who shot me. Q,. What reason, if any, had the man you have so identified for shooting you ? A. Not any that I know of; he said he would shoot my damned heart out. Q,. What were you doing at the time the shooting took place ?
his
“Daniel X Casey.”
mark.
It was objected that this declaration was inadmissible in evidence: First. Because it was in the form of a deposition. Secondly. Because the answer to the question “ What reason, [328]*328if any, had'the man for shooting you?” was a mere expression of an opinion by Casey, in disregard of the inhibition imposed by the case of Binns v. State, 46 Ind. 311. Thirdly. Because it was incomplete by reason of the failure of Casey to answer the last question addressed to him.
In the first place, a dying declaration may be made in answer to questions addressed to the dying man and reduced to-writing. 1 Greenl. Ev., section 159 and note; Com. v. Haney, 127 Mass. 455; State v. Martin, 30 Wis. 216.
In the next place, the words “ what reason,” referred to in. the second objection, were, in the connection in which they were used, synonymous with the phrase “what cause,” and. plainly had reference to facts within Casey’s knowledge, and not to opinions merely which he might have entertained. Casey’s answer, “Not any that I know of,” was more in the-nature of the denial of a fact than the expression of an opinion.
. In the case of Wroe v. State, 20 Ohio St. 460, the court held that “There is no valid objection to the admission of the evidence of Smith Davison as to the dying declai’ations of the-deceased. The declaration of the deceased, in speaking of the fatal wound, that, ‘it was done without any provocation, on his part,’ is objected to as being mere matter of opinion. Whether there was provocation or not, is a fact, not stated, it is true, in the most elementary form of which it is susceptible, but sufficiently so to be admissible as evidence.”
The conclusion reached in that case is sustained in principle by the cases of Rex v. Scaife, 1 M. & R. 551, and Roberts v. State, 5 Tex. Ap. 141, and the precedent it affords may, as we believe, be safely followed in its fairly analogous application to the question now before us. See, also, Whart. Crim. Ev., sec. 294.
In the third place, the declaration was complete as to the-answers to all questions v'hich it purported to answer, and in that sense it was not fragmentary within the meaning of the case of State v. Patterson, 45 Vt. 308 (12 Am. R. 200). Besides, the failure of Casey to ansvrer the last question was-[329]*329sufficiently explained by his attending physician. In our opinion, therefore, the dying declarations of Casey were properly admitted in evidence.
The judgment is reversed, and the case remanded for a new trial. v
Filed Sept. 27,1884.