Caldwell, J.
—This was an indictment for murder in the district court of Victoria county; trial at the spring term, 1868, and a conviction for murder in the second degree.
During the progress of the trial there were several exceptions to the ruling of the court, all embodied in a motion for a new trial, which was overruled, and the prisoner appealed. '
Two errors are relied on for a reversal, all others having been abandoned by counsel for the prisoner in this court.
I. The court erred in its rulings, “in refusing to permit the defendant to make proof of previous threats immediately preceding. the shooting, which were communicated to the defendant.”
2. The court erred “in refusing to permit the defendant [425]*425to introduce proof of the violent and dangerous character of the deceased, and that he was a man likely to carry Ms threats into execution.”
The admissibility of “threats” as evidence in justification of homicide has ever been a perplexing question, and it cannot be safely said that there is any fixed rule, assented to by jurists as a uniform one, alike applicable to all cases. Each is impressed with its peculiar surroundings, and must be judged of by them.
The Code of Criminal Procedure [Paschal’s Dig., Art. 2270] provides that, “where a defendant accused of murder seeks to justify himself on the ground of threats against Ms own life, he may be permitted to introduce evidence of the threats made; but the same shall not be regarded as affording a justification for the offense, unless it be shown that at the time of the homicide the person killed, by some act then done, manifested an intention to execute the threat so made. In every instance where proof of threats has been made, it shall be competent to introduce evidence of the general character of the deceased. Such evidence shall extend only to an inquiry as to whether the deceased was a man of violent or dangerous character, or a man of kind and inoffensive disposition, or whether he was such a person as might reasonably be expected to execute a threat made.” This we do not regard as a new rule, but a statutory declaration of the old.
The judge who presided on the trial in the court below seems to have acted upon the theory that before evidence of threats could be introduced there must have been laid a predicate in the nature of proof disclosing some act at the time of the homicide manifesting an intention to carry the supposed threats into execution, and that such acts were questions of law for the court, and not of fact to be submitted to the jury. Thus viewing the law, it was held that the circumstances surrounding the parties at the time of the killing did not furnish the required predicate.
[426]*426It is an elementary rule, that if there be any evidence is a question for the judge, but its sufficiency for the purpose relied on is for the jury to determine. (1 Greenl. on Ev., § 49.) If we hold that the defendant must first prove that his antagonist manifested a hostile purpose by acts done at the time of the homicide, it would seem that antecedent threats of violence could be of no avail, because these acts of themselves would excuse, extenuate, or justify, according to their nature or grade. Thus the whole object of the law in acquainting the jury with previous threats would be defeated.
The sole object of introducing threats against a prisoner is to ascertain his frame of mind at the very moment of the commission of the homicide. It follows, then, that every circumstance, however light or trivial, that can furnish any indicia of this frame or condition of the mind becomes highly important, and is relevant to ascertain the intent with which the act was committed, because murder is essentially the creature of intent, and cannot exist without malice. A jury might with perfect propriety conclude that the acts of the deceased at the time of the killing were not sufficient to extenuate or justify, but, when these acts are coupled with the previous threats of violence communicated to the defendant, they may present an entirely new phase; “trifles light as air” then become pregnant with meaning, and completely negative the idea of malice.
In Rector’s case, 19 Wend., 589, counsel for the prisoner offered evidence of the rioters breaking in the prisoner’s house on the previous Saturday night, and that the rioters threatened to return on another night and break in unless admitted. This was offered to' establish a reasonable ground for the prisoner’s apprehending the execution of a similar threat now repeated. Judge Cowan held that the evidence ought to have been received, remarking that real alarm on the part of the prisoner on apparent, though unreal, grounds was pertinent to the issue. The jury might [427]*427have laid no stress upon the circumstance, hut it should have heen received, because we cannot say they would not. The lightness of a relevant circumstance is no argument for withholding it from the jury.
In Howell’s case, 5 Georgia, 54, the distinct proposition is, whether it was competent for the defendant to prove threats by the deceased against the prisoner. Judge Warner, in delivering the opinion of the court, said: “ Whether the evidence was sufficient to excite the fears of a reasonable man * * was a question for the jury. The evidence was competent to show the quo animo of the defendant. All we can say is, that the question propounded to the witness * * was a legal'and competent question. What effect the answer would have had upon the jury of course we cannot know. All we decide is, that on a trial for murder * * it is competent, under the provisions of our code, for the defendant to ask a witness if he did not know that the deceased * * made any threats to drive the prisoner from the place or take his life;” and Rector’s case is cited with approbation.
When it is borne in mind that in Howell’s case the deceased was approaching the prisoner without being aware of Ms proximity, the defendant discovered himself and fired the fatal shot, it will be seen that it is a much stronger case than the one at bar.
Lander’s case, 12 Tex., 462, is relied on by the attorney general in support of the correctness of the ruling of the court below. We think it rather in affirmance of the view we take. In that case, the evidence of threats by deceased against the prisoner was admitted without objection. Hor did this court on appeal intimate that it was improperly done. It will be observed that in this case Lander, the threatened party, went about compassing the destruction of his enemy, waylaid, and shot him, when he was wholly unconscious of his presence. There could be no pretense here of acts done by the deceased at the time of the homi[428]*428eide, and yet the threats were introduced. Lander acted upon the vulgar notion that he who threatens the life of another is an outlaw as to the person menaced, without the pale of the law, and may be circumvented and slain with impunity. ' The point made was as to the sufficiency of threats, unaccompanied by acts at the time of the killing, to excuse, extenuate, or justify, and it was rightly held that they were not sufficient.
Johnson’s case, 27 Tex., 758, is to the same effect. Threats were introduced without objections, but it was assigned as error that the court, in the charge, withdrew from the consideration of the jury the threats as an element of the prisoner’s defense.
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Caldwell, J.
—This was an indictment for murder in the district court of Victoria county; trial at the spring term, 1868, and a conviction for murder in the second degree.
During the progress of the trial there were several exceptions to the ruling of the court, all embodied in a motion for a new trial, which was overruled, and the prisoner appealed. '
Two errors are relied on for a reversal, all others having been abandoned by counsel for the prisoner in this court.
I. The court erred in its rulings, “in refusing to permit the defendant to make proof of previous threats immediately preceding. the shooting, which were communicated to the defendant.”
2. The court erred “in refusing to permit the defendant [425]*425to introduce proof of the violent and dangerous character of the deceased, and that he was a man likely to carry Ms threats into execution.”
The admissibility of “threats” as evidence in justification of homicide has ever been a perplexing question, and it cannot be safely said that there is any fixed rule, assented to by jurists as a uniform one, alike applicable to all cases. Each is impressed with its peculiar surroundings, and must be judged of by them.
The Code of Criminal Procedure [Paschal’s Dig., Art. 2270] provides that, “where a defendant accused of murder seeks to justify himself on the ground of threats against Ms own life, he may be permitted to introduce evidence of the threats made; but the same shall not be regarded as affording a justification for the offense, unless it be shown that at the time of the homicide the person killed, by some act then done, manifested an intention to execute the threat so made. In every instance where proof of threats has been made, it shall be competent to introduce evidence of the general character of the deceased. Such evidence shall extend only to an inquiry as to whether the deceased was a man of violent or dangerous character, or a man of kind and inoffensive disposition, or whether he was such a person as might reasonably be expected to execute a threat made.” This we do not regard as a new rule, but a statutory declaration of the old.
The judge who presided on the trial in the court below seems to have acted upon the theory that before evidence of threats could be introduced there must have been laid a predicate in the nature of proof disclosing some act at the time of the homicide manifesting an intention to carry the supposed threats into execution, and that such acts were questions of law for the court, and not of fact to be submitted to the jury. Thus viewing the law, it was held that the circumstances surrounding the parties at the time of the killing did not furnish the required predicate.
[426]*426It is an elementary rule, that if there be any evidence is a question for the judge, but its sufficiency for the purpose relied on is for the jury to determine. (1 Greenl. on Ev., § 49.) If we hold that the defendant must first prove that his antagonist manifested a hostile purpose by acts done at the time of the homicide, it would seem that antecedent threats of violence could be of no avail, because these acts of themselves would excuse, extenuate, or justify, according to their nature or grade. Thus the whole object of the law in acquainting the jury with previous threats would be defeated.
The sole object of introducing threats against a prisoner is to ascertain his frame of mind at the very moment of the commission of the homicide. It follows, then, that every circumstance, however light or trivial, that can furnish any indicia of this frame or condition of the mind becomes highly important, and is relevant to ascertain the intent with which the act was committed, because murder is essentially the creature of intent, and cannot exist without malice. A jury might with perfect propriety conclude that the acts of the deceased at the time of the killing were not sufficient to extenuate or justify, but, when these acts are coupled with the previous threats of violence communicated to the defendant, they may present an entirely new phase; “trifles light as air” then become pregnant with meaning, and completely negative the idea of malice.
In Rector’s case, 19 Wend., 589, counsel for the prisoner offered evidence of the rioters breaking in the prisoner’s house on the previous Saturday night, and that the rioters threatened to return on another night and break in unless admitted. This was offered to' establish a reasonable ground for the prisoner’s apprehending the execution of a similar threat now repeated. Judge Cowan held that the evidence ought to have been received, remarking that real alarm on the part of the prisoner on apparent, though unreal, grounds was pertinent to the issue. The jury might [427]*427have laid no stress upon the circumstance, hut it should have heen received, because we cannot say they would not. The lightness of a relevant circumstance is no argument for withholding it from the jury.
In Howell’s case, 5 Georgia, 54, the distinct proposition is, whether it was competent for the defendant to prove threats by the deceased against the prisoner. Judge Warner, in delivering the opinion of the court, said: “ Whether the evidence was sufficient to excite the fears of a reasonable man * * was a question for the jury. The evidence was competent to show the quo animo of the defendant. All we can say is, that the question propounded to the witness * * was a legal'and competent question. What effect the answer would have had upon the jury of course we cannot know. All we decide is, that on a trial for murder * * it is competent, under the provisions of our code, for the defendant to ask a witness if he did not know that the deceased * * made any threats to drive the prisoner from the place or take his life;” and Rector’s case is cited with approbation.
When it is borne in mind that in Howell’s case the deceased was approaching the prisoner without being aware of Ms proximity, the defendant discovered himself and fired the fatal shot, it will be seen that it is a much stronger case than the one at bar.
Lander’s case, 12 Tex., 462, is relied on by the attorney general in support of the correctness of the ruling of the court below. We think it rather in affirmance of the view we take. In that case, the evidence of threats by deceased against the prisoner was admitted without objection. Hor did this court on appeal intimate that it was improperly done. It will be observed that in this case Lander, the threatened party, went about compassing the destruction of his enemy, waylaid, and shot him, when he was wholly unconscious of his presence. There could be no pretense here of acts done by the deceased at the time of the homi[428]*428eide, and yet the threats were introduced. Lander acted upon the vulgar notion that he who threatens the life of another is an outlaw as to the person menaced, without the pale of the law, and may be circumvented and slain with impunity. ' The point made was as to the sufficiency of threats, unaccompanied by acts at the time of the killing, to excuse, extenuate, or justify, and it was rightly held that they were not sufficient.
Johnson’s case, 27 Tex., 758, is to the same effect. Threats were introduced without objections, but it was assigned as error that the court, in the charge, withdrew from the consideration of the jury the threats as an element of the prisoner’s defense. In upholding the sufficiency of the charge and its freedom from the alleged objection, Judge Moore said: “Full two-thirds of the time the court was engaged in the trial of the cause must have been consumed in developing and expounding the evidence touching the alleged threats * * as the ground of defense.” Although “these things (the threats, among others) were antecedent occurrences, is it meant to be said that they were not vital living facts and circumstances surrounding the parties at the time of the killing? How can any facts and circumstances be said to surround parties, save as they connect themselves with, and are explanatory of, their conduct and intention in the particular matter drawn in question? Shall not all those which are legitimately so connected be properly said to surround the parties ?” From this it is plain the court was of the opinion that the threats were circumstances from which legitimate deductions might be drawn, and should be referred to the jury.
If, then, such an important element, in ascertaining the prisoner’s frame of mind and the intent with which he committed the act, as previous threats against his life are withheld from the jury, can it be seriously insisted on that he has had a trial under the law of the land? ' -
It was insisted on in argument that this court, upon [429]*429inspection of the whole records, might affirm the judgment, if, in its opinion, there was sufficient evidence to sustain the verdict. This is not the law. The rule maybe applicable in civil cases, but not in criminal prosecutions when life is involved. A denial of any legal right is sufficient to reverse the judgment. (Phips v. The State, 3 Cold., 344.)
It is the right of the prisoner to have every relevant circumstance from which a conclusion can be drawn consistent with innocence daguerreotyped on the mind of the jury and reflected back in the shape of their verdict.
The effect of the ruling in the court below was, that the circumstances surrounding the parties, developed on the trial, were not sufficient to extenuate or justify, notwithstanding the threats. This was a question of fact for the jury, to be responded to under a proper charge of the court.
As the case must be again referred to a jury, we will only notice the facts to observe, that at the time of the homicide the parties confronted each other. The proof showed there was a present ability on the part of the deceased to execute the supposed threats; that there had been ill feeling between the parties; and an angry conversation, growing out of their differences, was going on at the time of the killing; that there were simultaneous movements by the parties of such a menacing nature as to induce one of the witnesses to seek safety in avoiding the apprehended shots of both.
We think all these circumstances should have been interpreted by the jury through the mirror of the threatened attack. We do not say they ought to have had any weight with the jury. On this point we express no opinion at all.
All we decide is, that a prisoner accused of murder may introduce evidence of threats against himself by the deceased, and whether there are any acts done at the time of the killing by the deceased which will extenuate or justify is a question of fact for the jury. It follows from this that [430]*430evidence also of the character of the deceased may be introduced, &c., as provided in the code. (Paschal’s Dig., Art. 2270.)
It may be said that the policy of permitting the introduction of threats as evidence before a predicate is laid will have the effect of enabling the criminal to screen himself from the consequences of his crime; that the courts should scrutinize with jealous care every avenue by which the criminal might escape. To the former we reply, that courts, as such, can have no policy of their own. To the latter, as men, we may lament the prevalence of crime, and" moreover the decadence of public virtue, evidenced by the reckless disregard of human life; but as jurists we can only expound the law as it has been handed down to us by the fathers, and leave the consequences to G-od and the country.
The judgment of the court below, in overruling the motion for a new trial, is reversed, and the cause remanded for another trial.
Reversed and remanded.