Smith, J.
Appellant was tried under an indictment charging him with the crime of murder in the first degree, alleged to have been committed by shooting one Morris Hastings. He was convicted of murder in the second degree, and given a sentence of ten years in the penitentiary, and has appealed.
The facts in regard to the killing are substantially as follows: The appellant, who will hereinafter be referred to as the defendant, and Hastings, who will be referred to as the deceased, had always been on friendly terms and had frequently hunted together. Defendant was thirty-eight years old, and at the time of the killing was under treatment by a physician for hernia, and was a much smaller man than deceased, who was twenty-three years old, six feet tall, and of athletic build. The killing occurred about nine o’clock Thursday morning, February 17, 1921, in the little town of Grady, in Lincoln County, where both parties had lived for a number of years.
According to defendant, he had bought a bird dog the day before, in payment of which he had given a check on his local bank, and, not being certain that he had enough money in the bank to pay the check, he had gotten $25 from his bookkeeper that morning and was hurrying to reach the bank before the check was presented for payment. On the way to the bank and while near the depot, he met deceased and told him that he had just bought a stud pup, whereupon deceased said, “I have been looking for you, you son-of-a-bitch; you had better be thinking about your neck instead of dogs.” Defendant asked, “What is the matter, Morris?” when, according to defendant, deceased “said something about whát my wife told his mother.” According to defendant, he assured deceased there was some mistake, that he had said nothing desrespectful .about his mother, and that if she had taken offense at anything he had said he would be glad to explain or apologize. The deceased did not accept the explanation and grew more angry as the discussion progressed, and, after frequently cursing defendant in angry'.tones and with violent/ language, finally said, “I am going to stamp your God damn guts through your eyes,” and as he said this deceased lunged at defendant and put his hand in his pocket; whereupon defendant jumped back a step or two, drew his pistol and fired twice in rapid succession. Deceased fell between the rails of the railway track with a bullet through his heart, from which he died in a very short time.
Witnesses saw the parties standing together and knew that a violent quarrel was in progress, but the testimony shows that defendant made only one gesture — • that with his hands — during the conversation; while deceased was seen to shake his 'finger in defendant’s face. A witness named Bittinger, who saw the beginning of the occurrence, heard deceased apply indecent epithets and threats to defendant, and supposed defendant would slap deceased, but when defendant failed to resent what was said, witness passed on and left the parties to their discussion. During all this time defendant had in one hand the bills which he had started to deposit in the bank. Immediately upon .firing the shots, defendant went to the bank and deposited his money. He then went directly to the office of Dr. Hutchinson, whom he requested to go at once to the relief of deceased, making the statement at the time that he had been compelled to shoot him.
Defendant undertook to account for the possession of the pistol by stating that his store had been recently burglarized and a large quantity of' goods stolen. He admitted that he had a pistol in his store and another in his residence. There was testimony on the part of the State that deceased fell at the place where he had been standing, thus indicating that he had not advanced on defendant; and it was shown that deceased’s clothing was not powder burned, and that he was unarmed when he ’was killed.
. It was shown that the evening before the killing deceased was talking about what defendant had said about his mother, something defendant’s wife had told his mother. Deceased told Dr. Hutchinson that he had been compelled to call a doctor to see his mother on account of her excitement over what defendant’s wife had told her, and that he would see defendant the following morning, and that if he did not apologize he would beat him up so that the whole town would know he had been whipped. Dr. Hutchinson undertook to pacify deceased, but met with no success in his attempt. Dr. Hutchinson communicated this fact to defendant that night, and defendant said he thought he could adjust the matter.
The court allowed defendant to state fully everything deceased said when they met in regard to the insulting language used by defendant towards deceased’s mother, but excluded the testimony of a Mrs. Harding, who was present when the conversation between Mrs. Prewitt and Mrs. Hastings occurred and by whom they offered to prove what the conversation was. Mrs. Harding would have testified, had she been permitted to do so, that she heard the conversation, and that Mrs, Prewitt repeated to Mrs. Hastings a remark of defendant about how often he saw Mrs. Hastings on the street and how spry and youthful she appeared to be, and that the remark was a facetious compliment on Mrs'. Easting’s youthful appearance, and that there was nothing in the remark susceptible of a construction derogatory to Mrs. Hastings’ character. Upon reflection, Mrs. Hastings gave the remark a sinister interpretation, and became excited and ill over it, and repeated the remark to her son, giving, m its repetition, the interpretation she then placed on it.
Defendant was not allowed to show by Dr. Hutchinson what his personal appearance and demeanor was when he arrived at the doctor’s office; and exceptions were saved to that ruling.
The State called L. P. Spyker as a 'witness, who testified that he was the station agent at Grady, and was about ten feet inside his office and about twenty feet from the scene of the killing when the firing commenced, and that he immediately went to a window looking out on the scene of the killing. He described the relative situation of the parties, and, on Ms cross-examination, was asked this question: “When you looked out and saw Mr. Prewitt standing there, please describe to the jury what kind of éxpression was on Ms face at that time, as best you can.” The prosecuting attorney objected to the question as being a mere conclusion of the witness, and the court sustained the objection and remarked at the time that “nothing could be determined from that testimony.” Counsel for defendant then said: “We want to show from the expression on his face that there was no anger shown on his face at that time.” The court remarked: “I don’t think that is admissible, and it will be denied.” Thereupon counsel stated that “the defendant offers to prove by this witness, on cross-examination, that there was nothing whatever in the expression on the face of the defendant immediately after the shooting to indicate the slighest anger or resentment, and that defendant’s expression at that -time reflected only fright and fear.”
Numerous errors are assigned for the reversal of the judgment, the first of which is that the jury was not sworn to try the cause. After the adjournment of the term at which the trial was had the record was amended by a nunc pro time order to show that the jury was sworn; and it is now insisted that -this order was made upon an insufficient showing. As the judgment is to be reversed, we do not stop to consider this question.
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Smith, J.
Appellant was tried under an indictment charging him with the crime of murder in the first degree, alleged to have been committed by shooting one Morris Hastings. He was convicted of murder in the second degree, and given a sentence of ten years in the penitentiary, and has appealed.
The facts in regard to the killing are substantially as follows: The appellant, who will hereinafter be referred to as the defendant, and Hastings, who will be referred to as the deceased, had always been on friendly terms and had frequently hunted together. Defendant was thirty-eight years old, and at the time of the killing was under treatment by a physician for hernia, and was a much smaller man than deceased, who was twenty-three years old, six feet tall, and of athletic build. The killing occurred about nine o’clock Thursday morning, February 17, 1921, in the little town of Grady, in Lincoln County, where both parties had lived for a number of years.
According to defendant, he had bought a bird dog the day before, in payment of which he had given a check on his local bank, and, not being certain that he had enough money in the bank to pay the check, he had gotten $25 from his bookkeeper that morning and was hurrying to reach the bank before the check was presented for payment. On the way to the bank and while near the depot, he met deceased and told him that he had just bought a stud pup, whereupon deceased said, “I have been looking for you, you son-of-a-bitch; you had better be thinking about your neck instead of dogs.” Defendant asked, “What is the matter, Morris?” when, according to defendant, deceased “said something about whát my wife told his mother.” According to defendant, he assured deceased there was some mistake, that he had said nothing desrespectful .about his mother, and that if she had taken offense at anything he had said he would be glad to explain or apologize. The deceased did not accept the explanation and grew more angry as the discussion progressed, and, after frequently cursing defendant in angry'.tones and with violent/ language, finally said, “I am going to stamp your God damn guts through your eyes,” and as he said this deceased lunged at defendant and put his hand in his pocket; whereupon defendant jumped back a step or two, drew his pistol and fired twice in rapid succession. Deceased fell between the rails of the railway track with a bullet through his heart, from which he died in a very short time.
Witnesses saw the parties standing together and knew that a violent quarrel was in progress, but the testimony shows that defendant made only one gesture — • that with his hands — during the conversation; while deceased was seen to shake his 'finger in defendant’s face. A witness named Bittinger, who saw the beginning of the occurrence, heard deceased apply indecent epithets and threats to defendant, and supposed defendant would slap deceased, but when defendant failed to resent what was said, witness passed on and left the parties to their discussion. During all this time defendant had in one hand the bills which he had started to deposit in the bank. Immediately upon .firing the shots, defendant went to the bank and deposited his money. He then went directly to the office of Dr. Hutchinson, whom he requested to go at once to the relief of deceased, making the statement at the time that he had been compelled to shoot him.
Defendant undertook to account for the possession of the pistol by stating that his store had been recently burglarized and a large quantity of' goods stolen. He admitted that he had a pistol in his store and another in his residence. There was testimony on the part of the State that deceased fell at the place where he had been standing, thus indicating that he had not advanced on defendant; and it was shown that deceased’s clothing was not powder burned, and that he was unarmed when he ’was killed.
. It was shown that the evening before the killing deceased was talking about what defendant had said about his mother, something defendant’s wife had told his mother. Deceased told Dr. Hutchinson that he had been compelled to call a doctor to see his mother on account of her excitement over what defendant’s wife had told her, and that he would see defendant the following morning, and that if he did not apologize he would beat him up so that the whole town would know he had been whipped. Dr. Hutchinson undertook to pacify deceased, but met with no success in his attempt. Dr. Hutchinson communicated this fact to defendant that night, and defendant said he thought he could adjust the matter.
The court allowed defendant to state fully everything deceased said when they met in regard to the insulting language used by defendant towards deceased’s mother, but excluded the testimony of a Mrs. Harding, who was present when the conversation between Mrs. Prewitt and Mrs. Hastings occurred and by whom they offered to prove what the conversation was. Mrs. Harding would have testified, had she been permitted to do so, that she heard the conversation, and that Mrs, Prewitt repeated to Mrs. Hastings a remark of defendant about how often he saw Mrs. Hastings on the street and how spry and youthful she appeared to be, and that the remark was a facetious compliment on Mrs'. Easting’s youthful appearance, and that there was nothing in the remark susceptible of a construction derogatory to Mrs. Hastings’ character. Upon reflection, Mrs. Hastings gave the remark a sinister interpretation, and became excited and ill over it, and repeated the remark to her son, giving, m its repetition, the interpretation she then placed on it.
Defendant was not allowed to show by Dr. Hutchinson what his personal appearance and demeanor was when he arrived at the doctor’s office; and exceptions were saved to that ruling.
The State called L. P. Spyker as a 'witness, who testified that he was the station agent at Grady, and was about ten feet inside his office and about twenty feet from the scene of the killing when the firing commenced, and that he immediately went to a window looking out on the scene of the killing. He described the relative situation of the parties, and, on Ms cross-examination, was asked this question: “When you looked out and saw Mr. Prewitt standing there, please describe to the jury what kind of éxpression was on Ms face at that time, as best you can.” The prosecuting attorney objected to the question as being a mere conclusion of the witness, and the court sustained the objection and remarked at the time that “nothing could be determined from that testimony.” Counsel for defendant then said: “We want to show from the expression on his face that there was no anger shown on his face at that time.” The court remarked: “I don’t think that is admissible, and it will be denied.” Thereupon counsel stated that “the defendant offers to prove by this witness, on cross-examination, that there was nothing whatever in the expression on the face of the defendant immediately after the shooting to indicate the slighest anger or resentment, and that defendant’s expression at that -time reflected only fright and fear.”
Numerous errors are assigned for the reversal of the judgment, the first of which is that the jury was not sworn to try the cause. After the adjournment of the term at which the trial was had the record was amended by a nunc pro time order to show that the jury was sworn; and it is now insisted that -this order was made upon an insufficient showing. As the judgment is to be reversed, we do not stop to consider this question.
A great many other assignments of error are dismissed in the briefs relating to alleged errors in the admission and exclusion of testimony and in giving and refusing instructions. We dispose of these questions generally by saying that we find no error in the record now before us except as hereinafter pointed out.
It does appear that the court gave no instruction defining reasonable doubt, although, in instruction numbered 7 given by the court, the jury was told to acquit the defendant if, upon the whole case, they had a reasonable doubt of his guilt.
The defendant asked instructions numbered 4 and 20 on the subject of reasonable doubt; but neither of those instructions undertoook to define that term,- and, the court having told the jury to acquit if there was a reasonable doubt of defendant’s guilt, no error was committed in refusing to multiply instructions to that effect. The defendant should have asked a correct instruction defining reasonable doubt, in which event only would he be in position to ask a reversal for a failure to define that term. Lackey v. State, 67 Ark. 416, 421; Mabry v. State, 80 Ark. 345, 349; Hobbs v. State, 86 Ark. 360, 361; Horton v. Jackson, 87 Ark. 528, 530; Bradsham v. State, 95 Ark. 409, 411; Holmes v. Bluff City Lumber Co., 97 Ark. 180, 188; Hays v. State, 129 Ark. 325; Gunter v. Williams, 137 Ark. 530, 537.
It also appears that the court gave no instruction on the question of the credibility of the witnesses. The defendant did ask an instruction on this subject, but the one asked was not a correct declaration of the law. It concluded with the statement that “and, if you believe that any witness has wilfully given false testimony as to any material fact in the case, you may reject the entire testimony of said witness, or you may reject that which you find to be false and accept the remainder. ’ ’
In the case of Taylor v. State, 82 Ark. 540, an in struction of identical purport and of similar phraseology was reviewed and condemned by the court. Mr. Justice Riddick, speaking for the court, said: “This in effect tells the jury that if a witness has wilfully sworn falsely to any material fact, the jury may disregard his entire testimony, even though they should believe part of it to be true. But the jury has no right to reject any material testimony they may believe to be true. If a witness testified to a wilful falsehood in reference to a material fact, the jury should take that into consideration in weighing other portions of his testimony; and, if they conclude that none of his testimony is worthy of belief, they should reject it; but they have no right to reject any truthful statement simply because the witness has told a falsehood about something else. It may happen that a witness, because he wishes to shield himself or for some other reason, may fail to tell the whole truth, may be guilty of a wilful misrepresentation as to his own interest in or connection with the crime, and yet, as to other facts throwing light on the crime, he may give evidence of the greatest importance. The jury, after being satisfied that he has sworn falsely as to any material matter, should scrutinize his other statements with great caution before accepting them as true; but, when once they become convinced that he has told 1he truth, they should not reject it. * * *” Other later cases to the same effect are: Griffin v. State, 141 Ark. 46; Johnson v. State, 127 Ark. 524; Johnson v. State, 120 Ark. 202.
As the defendant did not ask a correct instruction on this subject, he is in no position to complain of the failure of the court to charge on that subject.
We are of the opinion that the court should have admitted the testimony of Mrs. Harding. The conversation which she would have detailed occurred only eighteen hours before rhe killing and was, without question, the cause of it; and we are of the opinion that the jury should have been allowed to know what the trouble was all about. It is true neither defendant nor deceased was then present, but the conversation was repeated to deceased by his mother shortly after it occurred, and the truth in regard to it as each party understood it may have probative value in ascertaining the motives of the respective parties. Testimony went to the jury, and properly so, that deceased was much incensed at what he thought was an offensivé statement reflecting, on his mother’s virtue. Defendant was permitted to testify that he told deceased he had cast no reflection on his mother, that he would he glad to explain and to apologize if deceased desired an apology. There was no witness to corroborate defendant, as no one heard the conversation between him and deceased.
The jury may not have believed defendant’s statement. Had they believed his statement, it would have tended to show that defendant had no desire to kill deceased nor motive for doing so.
In the very recent ease of Avey v. State, 149 Ark. 642, we held that proof of a motive for the killing was not a collateral matter. We there said: “This court las many times held that the State is not required to prove a motive to establish the guilt of one accused of homicide; but the court has also held that, as the absence of a motive is a circumstance tending to show innocence, the State may show the existence of a motive for taking the life of a decedent, to be considered with other facts and circumstances in determining the guilt or innocence of the accused.” See also Appleton State, 61 Ark. 590; Carr v. State, 43 Ark. 99; Scott v. State, 109 Ark. 391; Phillips v. State, 62 Ark. 119; Carroll v. State, 45 Ark. 539; Chapline v. State, 79 Ark. 444.
Had the testimony of Mrs. Harding been admitted, the testimony of defendant concerning his explanation to deceased and his attempt to conciliate him might have appeared more probable to the jury, and, if believed, might have led the jury h: the conclusion that defendant was doing everything in bis power, consistent with his safety, to avoid the difficulty. At least it had probative value tending to that effect.
We think the court properly excluded the testimony of Dr. Hutchinson about defendant’s appearance when he appeared at the office of the witness. Too much time had intervened between the time of the killing and that conversation. Opportunity had then been afforded for reflection and dissimulation.
But we think the testimony of.Spyker should have been admitted. He was asked about defendant’s appearance at the very time of the killing — while the smoking pistol was in defendant’s hand. The witness should have been allowed to describe to the jury the expression on the face of defendant at the time as best he could as he was requested to do in the question which the court refused to permit him to answer.
In Yol. 3 of Wigmore on Evidence, § 1974, that learned writer says: ‘£ The Opinion rule is often sought to be applied to forbid compendious descriptions of the appearances externally indicating internal states — for example, whether a person ‘looked’ sick or sad or angry. There is no more reason in this class of cases than in the preceding one for the Opinion rule to exclude the testimony. The exclusionary rulings perhaps here abound particularly in absurdities and quibbles— highly fit for cynical amusement, were not the names of Justice and Truth involved in their consideration.' One may wonder how long these solemn farces will be perpetuated in our law. '
In the note to the text quoted many cases are cited in which various courts have held that it is competent for a witness to describe one’s personal appearance, as, for instance, that he was angry, sick, excited, etc. See also Vol. 2 Wharton’s Criminal Evidence, § 922; 3 Chamberlayne, Modern Law of Evidence, § 1934; 16 C. J. p. 753, § 1545; Miller v. State, 94 Ark. 538; Decker v. State, 85 Ark. 64; Fort v. State, 52 Ark. 180.
The defendant’s right to kill depended on the necessity so to do as the circumstances then appeared to him, and proper instructions on that subject were given to the jury. Did the defendant believe that the threats of great bodily harm which had just been angrily made were about to be executed? Was the threatened injury impending and about to fall? And did defendant fire the fatal shots because of this fear and to save himself from the threatened fate: or did he fire the shots maliciously? In the one case, he had the right to-fire; in the other, he did not. We think the testimony as to defendant’s appearance at the time he fired the shots has probative value in passing on that question.
Appellant requested an instruction numbered 17, which told the jury that, in deciding the trim situation of the parties at the time their respective feelings and intentions, the jury should take into account “their threats, if any, and their relative strength and power, because, in a contest between a powerful individual and a weaker, the necessity of taking life in self-defense will be more apparent and easily discoverable.” It is very earnestly insisted that this instruction was proper, and that prejudicial error was committed in refusing it.
We do not agree with counsel in this contention. The instruction was argumentative in form. It was, of course, proper for the jury to consider the circumstances there recited; but this court has said in many cases that it is not good practice to single out and specially direct the attention of the jury to particular circumstances, thereby appearing to emphasize the circumstances named. The jury should be directed to consider all the circumstances established by the testimony, and this was fully and clearly done in a number of instructions given by the court, several of which were given at the request of the defendant.
We think there is no other error in the record; but the judgment must be reversed for the errors indicated. It is so ordered.