Martin Ch. J.:
The testimony of Ransom respecting the wheat, was competent. The object of the prosecution evidently was, to show the existence of ill will' upon the part of the prisoner towards the deceased; and the whole testimony of this witness, so far as set out in the bill of exceptions, tends to show, and was evidently produced for the purpose of showing, that such ill will and malice existed. It is objected that the occurrence was too long prior to, and remote from, that of the homicide; but this can hardly be contended when we bear in mind that Mrs. Harding left the neighborhood of the prisoner, and removed into another, county, immediately after the event to which the witness testifies, and did not return until a few days before the murder. The state of feeling existing between the accused and the victim, at and about the time of the alleged crime, is always a subject of legitimate inquiry; and so are facts and circumstances which tend to show the relations they hold towards each other; and where an interval of time, as in the present case, elapses, within which they are separated, the relations when last residing in each others’ neighborhood may be shown. The inquiry is perti-. nent; the ,only question being as to the value of the testimony, and the weight to be given to it. Thus, if A and B entertain the most hostile feelings towards each other, amounting to deadly hostility, to-day, and A removes from the vicinity of B, remains absent for six months, and then returns, and is found shortly after, murdered, and if circumstances point to B as the murderer, the relations when [367] last together may be shown, and will have more or less weight with a jury in determining the question of guilt or innocence, according to the other facts and circumstances shown in the case. There was no error, therefore, in admitting this testimony.
Nor was there error in rejecting the testimony of Mrs. Carpenter, as to what the prisoner said at her house on the morning of the alleged murder, and immediately before it, as to where he came from, and where he was going, and whether he inquired for any one. This was sought to be obtained on the cross-examination of the witness; and whether properly rejected or not upon the ground that it was not the proper subject of cross-examination, ample opportunity was given, when the defense had the case, for inquiry respecting these subjects, and the inquiry was pursued then so far as pertinent; or, if not, it was the fault of the prisoner.
There was no error in excluding the testimony of what the prisoner said at the post office; what errand he made there, and what he conversed about. It was not a part of the res gestee, and is conceded to be only admissible as such, or for the purpose of showing the prisoner’s state of mind. I am aware of only one class of declarations of a prisoner (and those he can not give in evidence in his. own favor unless the subject is first introduced by the prosecution) which do not come within the rule that declarations and acts of the prisoner, to be admissible, must either precede or accompany the act for the commission of which he stands charged; and those are flight, or declarations made when arrested or accused ; and these are received as in the nature of confessions or admissions. The state of mind which the law regards and inquires after, in admitting this testimony, is that existing prior to and at the time of the commission of the alleged offense, and not that which is subsequently manifested, unless in immediate connection with the occurrence; and [368] in the latter case, only for the purpose of determining the character of the act. Whether Dillin, at the post office, was cahn or excited, was a question of demeanor, and not of mental condition; and could be determined by the general inquiries allowed to be put to the witnesses who saw him there, and did business with him; and to allow him, under pretence of showing his state of mind at that time, to introduce evidence of what he said, would introduce a rule which, in many instances, and especially in cases of cool and deliberate crime, would enable the perpetrator to manufacture a complete defense; especially iu those cases in which direct evidence was wanting, and circumstantial evidence relied upon. The true rule is, that all acts and facts upon which any reasonable presumption of the truth or falsity of the issue can be founded, may be given in evidence; but such acts or facts must precede or be part of the res gestae, and unless as confessions, or given for the purpose of explanation or qualification, the subsequent acts and statements of the party’ are never admissible- The acts and declarations of the prisoner given in evidence in his favor, ought to be connected, both in point of subject matter and of time, with the acts or declarations proved against him: — Rose. Cr. Ev. 88. And the fact that he appeared warm and excited when he arrived at the post office, will not justify evidence on his part of what he said there, and which he may have made haste to say for the purpose of diverting suspicion or manufacturing a defense.
We discover no error in the ruling of the court in admitting the testimony of Carpenter. The objection appears to have arisen from a misapprehension of the rule laid down in The People v. Horton, 4 Mich. 67, which was substantially to the effect that a defendant can not, upon cross-examination, inquire respecting matters of defense not fairly connected with the matters testified to on the direct examination, although known to the witness [369] under [examination; both because it tends to promote confusion, and because the course would give undue advantage to a defendant, by allowing him to prove his case, or some portion of it, through answers to leading-questions ; which would violate a cardinal rule of evidence. But the evidence of Carpenter, thus produced, was relevant, and the pertinent subject of cross - examination, as following up the inquiry whether he knew which way the prisoner came from when ho reached the post office. His presence there was the subject of investigation; and nothing relating to his coming and presence are within the rule of that case.
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Martin Ch. J.:
The testimony of Ransom respecting the wheat, was competent. The object of the prosecution evidently was, to show the existence of ill will' upon the part of the prisoner towards the deceased; and the whole testimony of this witness, so far as set out in the bill of exceptions, tends to show, and was evidently produced for the purpose of showing, that such ill will and malice existed. It is objected that the occurrence was too long prior to, and remote from, that of the homicide; but this can hardly be contended when we bear in mind that Mrs. Harding left the neighborhood of the prisoner, and removed into another, county, immediately after the event to which the witness testifies, and did not return until a few days before the murder. The state of feeling existing between the accused and the victim, at and about the time of the alleged crime, is always a subject of legitimate inquiry; and so are facts and circumstances which tend to show the relations they hold towards each other; and where an interval of time, as in the present case, elapses, within which they are separated, the relations when last residing in each others’ neighborhood may be shown. The inquiry is perti-. nent; the ,only question being as to the value of the testimony, and the weight to be given to it. Thus, if A and B entertain the most hostile feelings towards each other, amounting to deadly hostility, to-day, and A removes from the vicinity of B, remains absent for six months, and then returns, and is found shortly after, murdered, and if circumstances point to B as the murderer, the relations when [367] last together may be shown, and will have more or less weight with a jury in determining the question of guilt or innocence, according to the other facts and circumstances shown in the case. There was no error, therefore, in admitting this testimony.
Nor was there error in rejecting the testimony of Mrs. Carpenter, as to what the prisoner said at her house on the morning of the alleged murder, and immediately before it, as to where he came from, and where he was going, and whether he inquired for any one. This was sought to be obtained on the cross-examination of the witness; and whether properly rejected or not upon the ground that it was not the proper subject of cross-examination, ample opportunity was given, when the defense had the case, for inquiry respecting these subjects, and the inquiry was pursued then so far as pertinent; or, if not, it was the fault of the prisoner.
There was no error in excluding the testimony of what the prisoner said at the post office; what errand he made there, and what he conversed about. It was not a part of the res gestee, and is conceded to be only admissible as such, or for the purpose of showing the prisoner’s state of mind. I am aware of only one class of declarations of a prisoner (and those he can not give in evidence in his. own favor unless the subject is first introduced by the prosecution) which do not come within the rule that declarations and acts of the prisoner, to be admissible, must either precede or accompany the act for the commission of which he stands charged; and those are flight, or declarations made when arrested or accused ; and these are received as in the nature of confessions or admissions. The state of mind which the law regards and inquires after, in admitting this testimony, is that existing prior to and at the time of the commission of the alleged offense, and not that which is subsequently manifested, unless in immediate connection with the occurrence; and [368] in the latter case, only for the purpose of determining the character of the act. Whether Dillin, at the post office, was cahn or excited, was a question of demeanor, and not of mental condition; and could be determined by the general inquiries allowed to be put to the witnesses who saw him there, and did business with him; and to allow him, under pretence of showing his state of mind at that time, to introduce evidence of what he said, would introduce a rule which, in many instances, and especially in cases of cool and deliberate crime, would enable the perpetrator to manufacture a complete defense; especially iu those cases in which direct evidence was wanting, and circumstantial evidence relied upon. The true rule is, that all acts and facts upon which any reasonable presumption of the truth or falsity of the issue can be founded, may be given in evidence; but such acts or facts must precede or be part of the res gestae, and unless as confessions, or given for the purpose of explanation or qualification, the subsequent acts and statements of the party’ are never admissible- The acts and declarations of the prisoner given in evidence in his favor, ought to be connected, both in point of subject matter and of time, with the acts or declarations proved against him: — Rose. Cr. Ev. 88. And the fact that he appeared warm and excited when he arrived at the post office, will not justify evidence on his part of what he said there, and which he may have made haste to say for the purpose of diverting suspicion or manufacturing a defense.
We discover no error in the ruling of the court in admitting the testimony of Carpenter. The objection appears to have arisen from a misapprehension of the rule laid down in The People v. Horton, 4 Mich. 67, which was substantially to the effect that a defendant can not, upon cross-examination, inquire respecting matters of defense not fairly connected with the matters testified to on the direct examination, although known to the witness [369] under [examination; both because it tends to promote confusion, and because the course would give undue advantage to a defendant, by allowing him to prove his case, or some portion of it, through answers to leading-questions ; which would violate a cardinal rule of evidence. But the evidence of Carpenter, thus produced, was relevant, and the pertinent subject of cross - examination, as following up the inquiry whether he knew which way the prisoner came from when ho reached the post office. His presence there was the subject of investigation; and nothing relating to his coming and presence are within the rule of that case.
The only remaining allegations of error upon which the prisoner relies, are the admission of the testimony of Hutchinson, and the refusal of the court to exclude it from the consideration of the jury. He had been a' witness for the People on the preliminary examination before the committing magistrate, and was offered to prove that attempts ha'd been made by the prisoner’s counsel and friends to induce him to absent himself 'from the trial. The objection to his testimony was met by the undertaking, on the part of the prosecution, to connect the prisoner with it; and upon such undertaking it was ad' mitted. There was no error in admitting it under such circumstances; but it was the duty of the court, had such undertaking- not been made, or had it failed, to exclude the testimony from the consideration of the jury, when the cause was given to them. Now, it is true that the burden of showing error lies upon the plaintiff in error ; and therefore there must be enough upon the face of the record to show error affirmatively; and that when the bill does not purport to contain all the evidence, it will ordinarily be presumed that if set forth it would sustain the ruling and charge of the court; and it seems to be thought that no error is affirmatively shown in this bill, in the ruling and charge of the court in denying the mo[370] tion of the prisoner to strike out such testimony, after the evidence was closed. A careful consideration of the bill of exceptions will show that no attempt was made by the prosecution to redeem the pledge given to connect the prisoner with the transaction. The language of the bill is, that the counsel for the People commented upon Hutchinson’s testimony, claiming and insisting that it should be received by the jury as tending to establish the prisoner’s guilt. Now if the prisoner were shown to have had cognizance of the attempt to get Hutchinson out of the way, it would and ought to have a very powerful influence upon determining the question of his guilt. Understanding the bill of exceptions to set out substantially that the counsel for the People claimed that this , unsupported testimony of Hutchinson should go to the jury, and that the court so ruled, there was error in the ruling denying the motion. Such testimony should only be allowed to go to a jury when some evidence accompanies it, upon which the jury may inquire as to the prisoner’s knowledge of and complicity in it; and they should be carefully instructed, even under such evidence, to exclude the testimony from consideration unless the prisoner is found to have been so connected. It is impossible to tell how far this testimony turned the scale against the priso. ner. That it must have had some weight, can not be doubted. For this error the judgment must be reversed, and a new trial ordered.
Christiancy J.:
I agree in the opinion of the Chief Justice, except so far as it relates to the exclusion of what Dillin said at the post office.
The prosecution had proved by Lapham that, on the same day and immediately after (the evidence tended to show) the murder had been committed, he saw the prisoner'at the post office, where he, the prisoner, stayed some [371] ten or fifteen minutes; that “ when he came in, he appeared warm. I discovered,” he says, “perspiration on his forehead. He leaned back in his chair, and then leaned forward, several times. There was something in his appearance that I can not describe. He held his head in an erect position. There was a kind of excitability about his manner that I can not describe. He seemed to have the appearance of being- excited, and at the same time trying to conceal it.”
Now this evidence tendfed to - show strong mental agitation and excitement, with an attempt to conceal it; and hence had a strong bearing upon the question of his guilt. The question whether such mental agitation and excitement existed, and the nature and extent of it, became very material and pertinent to the issue; and every thing fairly calculated to show the nature and extent of such agitation was admissible. A man’s conversation, under such circumstances, is quite as likely to furnish a fair index of his state of mind, as his motions and external appearance. Under strong mental excitement of the kind which the evidence of Lapham tended to show, the conversation is likely, to be somewhat incoherent, disjointed, or to show some want of calmness and deliberation. If nothing of this kind appeared in his conversation, and it evinced calmness, deliberation, and a natural consecutive order of ideas, this would have tended strongly to rebut the inference to be drawn from the external indications of excitement already testified to by Lapham. The jury, therefore, were entitled to have this evidence before them, to enable them properly to estimate the value of the evidence touching the external indications of such excitement. It is very true that, if the prosecution had not introduced the evidence tending to show excitement, the conversation of the prisoner on that occasion would not have been admissible in his favor. It is also true that the jury should have been instructed that, in considering the evidence relating to the conversar [372] .tions, they were not to consider his statements as evidence of facts stated in his own favor, but that it was only material so far as it bore upon the question of excitement or agitation of mind; unless, indeed, some fact or statem'ent had appeared in the conversation which might bear against the prisoner, as tending to show his guilt, and in such case, that his whole conversation, at the same time and in relation to the same subject, should be considered together.
Manning and Campbell JJ., concurred with Christian-OY J.
Judgment reversed.