Terral, J.,
delivered the opinion of the court.
The appellant, being sentenced to the penitentiary for life upon a conviction of the murder of his wife, presents here many objections to the proceedings against him in the trial court. For a proper understanding of these objections, a brief statement of the matters objected to will be necessary. The record recites: “Immediately upon the conclusion of the argument for the prosecution, the audience began a demonstration of applause, which was immediately checked by the court by rapping on the table. The audience was reprimanded for it, and the court stated that there must be no further demonstration of any kind during the progress of this trial. There was a large crowd in the court room. ’ ’ The record disclosed that there was no eye witness to the killing. The evidence of it was entirely circumstantial, and the proof on the part of the state was substantially made by the sheriff of the county, who testified that the defendant told him of the kill ing, — “just said to me it was an awful thing ; he would not have had it to happen for the world ; and that it was an accident.” Bill Johnson testified that he lived at Raines’ four years ; worked.there five years, and commenced working for [495]*495him at his mill ten years ago ; and, all the time he was there, Raines treated his wife pretty rough, — cursed her, heat her, whipped her, and caused her a miscarriage ; that Raines tried to make witness’ horse jump on her in the entry ; got on her with one knee ; pulled her hair ; slapped her ; pulled her nose and ears, — and much more of like conduct, which witness said continued through the ten years he was acquainted with them. Charles Mathews testified that, two or three weeks before the killing, he heard the defendant say to his wife that he was going to get a divorce from her because she would not dress up. Susan Duncan testified that Raines made threats against his son, and added he believed his mammy was upholding his son in what he objected to in him. Other similar evir dence was offered and laid before the jury, all against the earnest objection of counsel for appellant. One Lafayette Raines, a witness for the defendant, was, upon cross-examination, asked if the defendant had not made to him a statement bearing some implication of guilt, which he denied, and yet Isom Kelley was allowed to prove that Lafayette Raines had made such statement; thus getting before the jury as a confession of Raines what no witness pretended he ever said. Signs of shot holes in the walls of the residence of Raines— when and by whom made being unproven — were also given in evidence of the guilt of the defendant.
That the misconduct of the audience or of others, strangers, to the proceeding, when done to affect the result of the case, may infect it with fatal error, is established by many cases in the books, not necessary to here note. The applause given- by the audience at the close of the oration of the prosecuting-counsel was intended, doubtless, to influence the verdict of the. jury, and was a gross breach of the proprieties of the occasion,, and an undisguised affront to the authority of the court. In Cartwright v. State, 16 Tex. App., 473 (49 Am. Rep. 826), in a matter of applause by the audience in like circumstances,, which was not in any way noticed by the trial court, Judges [496]*496Wilson said : “We think the court should have taken prompt and decisive action-on the occasion, and should have endeavored, by its condemnation of the proceeding and its ' admonition to the jury, to prevent any prejudice to the defendant by such reprehensible conduct.” The court in the present case promptly checked the demonstration and reprimanded the audience, yet the want of any admonition to the jury not to suffer itself to be misled by the applause of the audience renders the point made here of the gravest difficulty. In view, however, of the fact that the judgment rendered in this case must be set aside for other grounds of error, we have thought it unnecessary to determine whether this unseemly incident is a fatal infirmity in the case.
The record discloses that there was no eye-witness to the killing charged upon the defendant. ' The evidence of it was entirely circumstantial, and the proof on the part of the state wás substantially made by the sheriff of the county, who testified that the defendant told him of the killing of his wife,— “ just said to me it was an awful thing; he would not have had it to happen for the world; and that it was an accident.” All the further proof in the case on the part of the state was in the effort to show the killing was not accidental, but was purposely and willfully done. The proof is partly noticed above, and consisted of many separate and distinct beatings or cursings of Mrs. Raines, committed at various times, running back many years, of one instance of a threat to get a divorce from her, and of continuous unpleasant relations of their married life.' The several distinct offenses proven against the defendant, as well as the repeated cursings and continuous ill treatment of his wife, extended back before the killing, to a period of ten years. Objection to this species of evidence as incompetent and illegal was made by appellant’s counsel in the court below, and is repeated to us here. Counsel for the state insists on its competency and applicability, and cite to us in its support Webb's case, 73 Miss., 456 (19 South., 238), and Story's [497]*497case, 68 Miss., 609 (10 South., 47). But we find that in each of these cases the circumstances put in evidence to show a motive for the killing were not separate and distinct offenses, but were matters that had apparent and obvious relation to the murder charged, and for which they were on trial, and happened in each case only a short time before the killing. The admission of the evidence in those cases meets our entire concurrence. It is a general rule of law that the evidence must be confined to the point in issue, and that in criminal cases, especially, the facts laid before the jury should consist exclusively of the transaction which forms the subject of the indictment. Roscoe, Cr. Ev. (6th ed), 85-95; 1 Greenl. Ev., pt. 2, ch. 1.; Herman v. State, 75 Miss., 340, 345 (22 South., 873); Holt v. State, 78 Miss., 631 (29 South., 527); Farvis v. People, 129 Ill., 521 (21 N. E., 821; 4 L. R. A., 582; 16 Am. St. Rep., 283). It is only where the previous crime is connected with the one for which the defendant is on trial, and where it sheds light upon the motive of the accused, that it can be proven against him, unless it form a part of a chain of facts so intimately connected that the whole must be heard in order to interpret its several parts. Evidence of the conduct of the accused on other occasions, though disconnected from the offense on trial, is frequently admitted in cases of conspiracy, uttering forged instruments and counterfeit coin, and receiving stolen goods — not, however, for the purpose of inducing the jury to believe the accused guilty of the crime for which he is on trial, because he had committed another similar crime, but for the purpose of excluding him from setting up the defense that he did the act innocently and without knowledge of its guilt. In such cases evidence of other similar offenses is admissible, because the act for which the defendant is being tried is mostly of an equivocal kind, from which malms animus is not a necessary presumption ; and such evidence is allowed in order to show a criminal intention. But it is rare that evidence of other similar offenses is received upon
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Terral, J.,
delivered the opinion of the court.
The appellant, being sentenced to the penitentiary for life upon a conviction of the murder of his wife, presents here many objections to the proceedings against him in the trial court. For a proper understanding of these objections, a brief statement of the matters objected to will be necessary. The record recites: “Immediately upon the conclusion of the argument for the prosecution, the audience began a demonstration of applause, which was immediately checked by the court by rapping on the table. The audience was reprimanded for it, and the court stated that there must be no further demonstration of any kind during the progress of this trial. There was a large crowd in the court room. ’ ’ The record disclosed that there was no eye witness to the killing. The evidence of it was entirely circumstantial, and the proof on the part of the state was substantially made by the sheriff of the county, who testified that the defendant told him of the kill ing, — “just said to me it was an awful thing ; he would not have had it to happen for the world ; and that it was an accident.” Bill Johnson testified that he lived at Raines’ four years ; worked.there five years, and commenced working for [495]*495him at his mill ten years ago ; and, all the time he was there, Raines treated his wife pretty rough, — cursed her, heat her, whipped her, and caused her a miscarriage ; that Raines tried to make witness’ horse jump on her in the entry ; got on her with one knee ; pulled her hair ; slapped her ; pulled her nose and ears, — and much more of like conduct, which witness said continued through the ten years he was acquainted with them. Charles Mathews testified that, two or three weeks before the killing, he heard the defendant say to his wife that he was going to get a divorce from her because she would not dress up. Susan Duncan testified that Raines made threats against his son, and added he believed his mammy was upholding his son in what he objected to in him. Other similar evir dence was offered and laid before the jury, all against the earnest objection of counsel for appellant. One Lafayette Raines, a witness for the defendant, was, upon cross-examination, asked if the defendant had not made to him a statement bearing some implication of guilt, which he denied, and yet Isom Kelley was allowed to prove that Lafayette Raines had made such statement; thus getting before the jury as a confession of Raines what no witness pretended he ever said. Signs of shot holes in the walls of the residence of Raines— when and by whom made being unproven — were also given in evidence of the guilt of the defendant.
That the misconduct of the audience or of others, strangers, to the proceeding, when done to affect the result of the case, may infect it with fatal error, is established by many cases in the books, not necessary to here note. The applause given- by the audience at the close of the oration of the prosecuting-counsel was intended, doubtless, to influence the verdict of the. jury, and was a gross breach of the proprieties of the occasion,, and an undisguised affront to the authority of the court. In Cartwright v. State, 16 Tex. App., 473 (49 Am. Rep. 826), in a matter of applause by the audience in like circumstances,, which was not in any way noticed by the trial court, Judges [496]*496Wilson said : “We think the court should have taken prompt and decisive action-on the occasion, and should have endeavored, by its condemnation of the proceeding and its ' admonition to the jury, to prevent any prejudice to the defendant by such reprehensible conduct.” The court in the present case promptly checked the demonstration and reprimanded the audience, yet the want of any admonition to the jury not to suffer itself to be misled by the applause of the audience renders the point made here of the gravest difficulty. In view, however, of the fact that the judgment rendered in this case must be set aside for other grounds of error, we have thought it unnecessary to determine whether this unseemly incident is a fatal infirmity in the case.
The record discloses that there was no eye-witness to the killing charged upon the defendant. ' The evidence of it was entirely circumstantial, and the proof on the part of the state wás substantially made by the sheriff of the county, who testified that the defendant told him of the killing of his wife,— “ just said to me it was an awful thing; he would not have had it to happen for the world; and that it was an accident.” All the further proof in the case on the part of the state was in the effort to show the killing was not accidental, but was purposely and willfully done. The proof is partly noticed above, and consisted of many separate and distinct beatings or cursings of Mrs. Raines, committed at various times, running back many years, of one instance of a threat to get a divorce from her, and of continuous unpleasant relations of their married life.' The several distinct offenses proven against the defendant, as well as the repeated cursings and continuous ill treatment of his wife, extended back before the killing, to a period of ten years. Objection to this species of evidence as incompetent and illegal was made by appellant’s counsel in the court below, and is repeated to us here. Counsel for the state insists on its competency and applicability, and cite to us in its support Webb's case, 73 Miss., 456 (19 South., 238), and Story's [497]*497case, 68 Miss., 609 (10 South., 47). But we find that in each of these cases the circumstances put in evidence to show a motive for the killing were not separate and distinct offenses, but were matters that had apparent and obvious relation to the murder charged, and for which they were on trial, and happened in each case only a short time before the killing. The admission of the evidence in those cases meets our entire concurrence. It is a general rule of law that the evidence must be confined to the point in issue, and that in criminal cases, especially, the facts laid before the jury should consist exclusively of the transaction which forms the subject of the indictment. Roscoe, Cr. Ev. (6th ed), 85-95; 1 Greenl. Ev., pt. 2, ch. 1.; Herman v. State, 75 Miss., 340, 345 (22 South., 873); Holt v. State, 78 Miss., 631 (29 South., 527); Farvis v. People, 129 Ill., 521 (21 N. E., 821; 4 L. R. A., 582; 16 Am. St. Rep., 283). It is only where the previous crime is connected with the one for which the defendant is on trial, and where it sheds light upon the motive of the accused, that it can be proven against him, unless it form a part of a chain of facts so intimately connected that the whole must be heard in order to interpret its several parts. Evidence of the conduct of the accused on other occasions, though disconnected from the offense on trial, is frequently admitted in cases of conspiracy, uttering forged instruments and counterfeit coin, and receiving stolen goods — not, however, for the purpose of inducing the jury to believe the accused guilty of the crime for which he is on trial, because he had committed another similar crime, but for the purpose of excluding him from setting up the defense that he did the act innocently and without knowledge of its guilt. In such cases evidence of other similar offenses is admissible, because the act for which the defendant is being tried is mostly of an equivocal kind, from which malms animus is not a necessary presumption ; and such evidence is allowed in order to show a criminal intention. But it is rare that evidence of other similar offenses is received upon [498]*498the trial of a crime. It is true, no evidence touching the guilt of the accused in the particular case on trial, of whatever sort, is rejected merely because it may disclose another offense'; but the acts relating to other offenses, to be admissible, except in the class of cases above noted, or other like cases, must be intimately connected with the offense on trial, and must afford reasonable ground of belief of a connection between them. Rex v. Clewes, 4 Car. & P., 221 (19 E. C. L., 354); Foster v. State, 70 Miss., 756, 767, 768 (12 South., 822). In cases of murder, threats to kill, made recently before the killing, or recent attempts to kill, are admissible in evidence, as tending to characterize the case on trial. In Herman’s case, 75 Miss., 345 (22 South., 873), a felonious assault, given in evidence to show motive, was held to be incompetent, because it occurred nearly twelve months before the homicide. We are of the opinion that the instances contained in the record of the cursings of the deceased by the defendant, whether taken collectively or singly, were incompetent as evidence against the defendant, and were harmful and illegal. We further think that the many simple assaults of the deceased by the defendant, whether collectively or separately considered, were incompetent as evidence against the defendant, and were.hurtful and injurious to his side of the question then under investigation by the jury ; that the signs of shot holes in the walls of defendant’s' residence, when or how done being unproven, were wholly irrelevant; and we are at an utter loss to see how his chiding declaration to his wife, made while drinking, though only three weeks before the awful tragedy, that he would divorce her because she would not dress up, could be put in the balance against the liberty and life of the wretched defendant. W e think it was also incompetent to get before the jury, as a confession of the defendant, what Lafayette Raines denied he had said, by proving by Isom Kelley that Raines had made such statement to him as coming from defendant.
The third instruction for the state, which is based upon the [499]*499principle of law that one is presumed to intend what' he does, and the fourth instruction, that declares 'malice may be inferred from the use of a deadly weapon, are inapplicable to the facts of this case. The circumstances relating to the killing were, so far as known, fully laid before the jury, and should have been left to their determination without the aid of either of the presumptions here invoked. It is not the mere killing, but the deliberate killing by the use of a deadly weapon, that imports malice. Here the only debatable point before the jury was whether the gun was deliberately or accidentally fired by the defendant. And the fourth instruction was erroneous in making the use of the gun decisive against the defendant, merely because it was a deadly weapon. Whether the gun was accidentally or deliberately fired was a question which should have been left to the free determination of the jury, uncontrolled by the presumption imposed upon them.
For the errors herein pointed out, the judgment is reversed, verdict set aside, and a new- trial is granted.
Reversed and remanded.