McCay, Judge.
1. The relations between the prisoner and deceased, whether they were friends or enemies, would seem in almost every homicide to be material. That they had a difficulty three-weeks before certainly tends to elucidate the question of malice. True, they may have made friends, but, prima facie,. we think it furnishes evidence going to show the state of mind* at the killing. The normal condition of men’s relations to’ each other, at least in society, is doubtless that of friendship-. But if that relation be shown to have been interrupted, we-think it not unfair to presume, prima facie, that the interruption continues. We think, therefore, there was no error in allowing this testimony to go before the jury.
2. The other point in this case, to-wit: the ground of new trial, based upon the fact that proof can be made that the deceased had threatened to kill the prisoner, and that this threat-[506]*506had come to his ears, presents a new question. It is not pretended that this is newly discovered evidence, as it is plainly, in the very nature of it, evidence that the prisoner must have known of at the trial. The ground assumed is, that the prisoner is a very ignorant, man, and did not know of its importance; that he did not inform his counsel of it for this reason. We are not prepared to say that a'case might not exist where such an excuse as this for not using testimony might not be sufficient. There are extreme cases of ignorance where the principles of justice and equity might make it the duty of the court to push its liberality and charity to a great extent. But the opportunities for trifling with the courts by such legal laches as this is so great, that the case presented should not only present a very clear case of want of consideration and ignorance, but the evidence should be of paramount importance. . Neither of those thiiigs appear here. The prisoner seems to have fully understood that it was important to show the relations between him and the deceased, and upon this very point, of threats by deceased, they had distinct evidence before the jury. We are incredulous, under the circumstances, of his want of knowledge of the value of the testimony. Besides, we think it not of such great importance as is insisted on. At best it is only cumulative. As we have said, evidence upon this very point was produced, and it is doubtless true, and was so thought by the jury, that there had been .mutual threats, of which both parties had heard.
3. Nor do we think the new evidence would at all justify or -excuse the prisoner. The evidence presents a bad case of recklessness, violence and anxiety to take the life of. deceased, and the facts present no such circumstances as would make the new evidence of the deceased’s threats and the knowledge of .■them by the prisoner, of any very striking significance.
.Judgment affirmed.
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