The opinion of the court was delivered by
Smith, J.:
a. Question oi rry In justification of the homicide the appellant relied wholly on the necessity for self-defense. The state was permitted to show at the trial that Jessie Doty was engaged to be married to Hoffman, and that appellant knew it; that the latter sought her company and invited her to attend certain entertainments with him, and that he told her that Hoffman did not intend to marry her but would deceive her. ‘ This testimony was admitted on the theory that Hoffman was an obstacle in the way of the motivo. consummation of appellant’s desire to maMiss Doty, which fact furnished a motive for the killing. The objection made by appellant to this testimony is an- attack on its weight rather than its competency. The conduct of the appellant towards Miss Doty in inviting her to accompany him [606]*606to places of public amusement, and, failing in this, his attempt to prejudice her against Hoffman, were circumstances proper to go to the jury to aid in the discovery of a motive for the homicide. The testimony was not strong in the direction mentioned, but we cannot, say that it was inadmissible.
2. Testimony stricken out. The appellant took the stand as a witness in his own behalf, and testified that on the Saturday before the homicide, in a conversation with Hoffman, the latter said: “If you will stand up before Jessie Doty’s face and tell us you didn’t tell her that, there will be a corpse and a funeral procession, if you can get anybody to bury you here in Marion.”
Further along the accused testified that when he fired the fatal shot he thought his life was in danger ; that when Hoffman entered the restaurant he made a motion of his right hand as if to draw a revolver ; that he put all the circumstances that had happened together and could n’t see how he coúld avoid taking Hoffman’s life ; that he considered and weighed the conversations held between them and came to the conclusion that Hoffman intended to kill him. The following questions, and the action of the court thereon, appear in the record :
“Ques. Mr. Burton, at any time were any other threats made by Fred. Hoffman conveyed to you ? Ans. At any time ?
“Q. Prior to that time. A. Yes, sir.
“Q. When were they conveyed to you? A. Saturday evening. (Counsel for the state objects to the witness stating that threats were conveyed to him as incompetent and immaterial.)
“By the court: Sustained. (To which ruling the defendant excepts.)
“Q. I will ask you if you was told that Fred. Hoff[607]*607man made a statement at that cake-walk that if he could find you he would do you up ? (Objected to by the state as incompetent.)
"By the court: At this time the objection is sustained. (The defendant excepts.)”
It appears that the first question propounded was in fact answered by the witness, but immediately afterward an objection was made by the state that it was incompetent and immaterial, and the court sustained the objection on those grounds. The court instructed the jury as follows :
"Any evidence which has been admitted by the court should be considered by you in making up your verdict; and when any evidence heard by you has been afterwards struck out by the court, you should absolutely and entirely disregard and give it no consideration. Your verdict should be based alone upon the evidence which the court has permitted to stand, and upon the law as stated to you in these instructions.”
It is quite apparent that the court did not intend that the answer of the witness should be considered by the jury, and we regard it as having been stricken out.
i Threats by deceased. It cannot be said in this case that the evidence of justification on the ground of self-defense, taking the testimony of appellant as true, did not raise a doubt as to whether the accused, when he fired shot, was in apparent danger of great bodily harm. He had a right to have his testimony weighed by the jury. (State v. Cushing, 14 Wash. 527, 45 Pac. 145, 53 Am. St. Rep. 883.) The defendant was justified in acting upon the facts as they appeared to him, and is not to be judged by the facts as they really existed. (The State v. Howard, 14 Kan. 173.) The "apparency” of the danger to the accused would [608]*608be greatly affected by his knowledge of previous threats made against him by the deceased. It has uniformly been held that communicated threats against the prisoner, made a short time before the commission of the homicide, showing a revengeful spirit and determination to do him violence, are admissible. (Miles Wilson v. The State, 30 Fla. 234, 11 South. 556, 17 L. R. A. 654, and note.)
The court refused to permit the defendant to answer the following questions :
“ Q. I will ask you if, at the time of this tragedy, you had ascertained and knew the reputation of Fred. Hoffman for being a violent and turbulent man, and for carrying a gun ?
“ Q. I will ask you, Mr. Burton, if you knew what Fred. Hoffman’s reputation was at the time of the tragedy as a violent and turbulent man?”
3. Character andreputation of deceased. We understand from these questions that, had defendant been permitted to answer them, he would have testified that he had been told by others that the deceased was a violent and turbulent man, and went about armed. The court sustained an objection to the first of the above questions on the ground of in competency, and to the'second because it was not the proper way to show the character of the deceased. Counsel for the state insists that the character of the person killed can only be attacked by evidence of his general reputation in the neighborhood, and cannot be proved by specific acts of violence or turbulence, or by isolated facts, nor by the individual opinions of those who are acquainted with him. We agree that this is the general rule, but we do not think it is applicable to the question involved in the objection to the testimony sought to be drawn out by the two questions above.
If the defendant was justified in acting on the ap[609]*609pearances presented at the time of the killing, then the knowledge he had theretofore gained concerning the violent and dangerous character of the deceased tended to show his state of- mind and his good faith in the belief of his imminent danger when he fired the fatal shot. The effect on defendant’s mind would be the same whether he gained his information of the ■dangerous character of the deceased from his general reputation in the community or by personal observation of specific acts, or from persons who had knowledge of particular traits, but who knew nothing of the general reputation of the man. If defendant knew that deceased was a dangerous man, the influence of that knowledge on his conduct at the time of the killing could hardly be said to differ in whatever manner the information was derived, by hearsay or otherwise, and the same whether the fact was known by the community generally or not.
In the case of State v. Lull, 48 Vt. 581, 586, 11 L. R. A. 75, a prison-keeper was indicted for assault and battery on a prisoner.
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The opinion of the court was delivered by
Smith, J.:
a. Question oi rry In justification of the homicide the appellant relied wholly on the necessity for self-defense. The state was permitted to show at the trial that Jessie Doty was engaged to be married to Hoffman, and that appellant knew it; that the latter sought her company and invited her to attend certain entertainments with him, and that he told her that Hoffman did not intend to marry her but would deceive her. ‘ This testimony was admitted on the theory that Hoffman was an obstacle in the way of the motivo. consummation of appellant’s desire to maMiss Doty, which fact furnished a motive for the killing. The objection made by appellant to this testimony is an- attack on its weight rather than its competency. The conduct of the appellant towards Miss Doty in inviting her to accompany him [606]*606to places of public amusement, and, failing in this, his attempt to prejudice her against Hoffman, were circumstances proper to go to the jury to aid in the discovery of a motive for the homicide. The testimony was not strong in the direction mentioned, but we cannot, say that it was inadmissible.
2. Testimony stricken out. The appellant took the stand as a witness in his own behalf, and testified that on the Saturday before the homicide, in a conversation with Hoffman, the latter said: “If you will stand up before Jessie Doty’s face and tell us you didn’t tell her that, there will be a corpse and a funeral procession, if you can get anybody to bury you here in Marion.”
Further along the accused testified that when he fired the fatal shot he thought his life was in danger ; that when Hoffman entered the restaurant he made a motion of his right hand as if to draw a revolver ; that he put all the circumstances that had happened together and could n’t see how he coúld avoid taking Hoffman’s life ; that he considered and weighed the conversations held between them and came to the conclusion that Hoffman intended to kill him. The following questions, and the action of the court thereon, appear in the record :
“Ques. Mr. Burton, at any time were any other threats made by Fred. Hoffman conveyed to you ? Ans. At any time ?
“Q. Prior to that time. A. Yes, sir.
“Q. When were they conveyed to you? A. Saturday evening. (Counsel for the state objects to the witness stating that threats were conveyed to him as incompetent and immaterial.)
“By the court: Sustained. (To which ruling the defendant excepts.)
“Q. I will ask you if you was told that Fred. Hoff[607]*607man made a statement at that cake-walk that if he could find you he would do you up ? (Objected to by the state as incompetent.)
"By the court: At this time the objection is sustained. (The defendant excepts.)”
It appears that the first question propounded was in fact answered by the witness, but immediately afterward an objection was made by the state that it was incompetent and immaterial, and the court sustained the objection on those grounds. The court instructed the jury as follows :
"Any evidence which has been admitted by the court should be considered by you in making up your verdict; and when any evidence heard by you has been afterwards struck out by the court, you should absolutely and entirely disregard and give it no consideration. Your verdict should be based alone upon the evidence which the court has permitted to stand, and upon the law as stated to you in these instructions.”
It is quite apparent that the court did not intend that the answer of the witness should be considered by the jury, and we regard it as having been stricken out.
i Threats by deceased. It cannot be said in this case that the evidence of justification on the ground of self-defense, taking the testimony of appellant as true, did not raise a doubt as to whether the accused, when he fired shot, was in apparent danger of great bodily harm. He had a right to have his testimony weighed by the jury. (State v. Cushing, 14 Wash. 527, 45 Pac. 145, 53 Am. St. Rep. 883.) The defendant was justified in acting upon the facts as they appeared to him, and is not to be judged by the facts as they really existed. (The State v. Howard, 14 Kan. 173.) The "apparency” of the danger to the accused would [608]*608be greatly affected by his knowledge of previous threats made against him by the deceased. It has uniformly been held that communicated threats against the prisoner, made a short time before the commission of the homicide, showing a revengeful spirit and determination to do him violence, are admissible. (Miles Wilson v. The State, 30 Fla. 234, 11 South. 556, 17 L. R. A. 654, and note.)
The court refused to permit the defendant to answer the following questions :
“ Q. I will ask you if, at the time of this tragedy, you had ascertained and knew the reputation of Fred. Hoffman for being a violent and turbulent man, and for carrying a gun ?
“ Q. I will ask you, Mr. Burton, if you knew what Fred. Hoffman’s reputation was at the time of the tragedy as a violent and turbulent man?”
3. Character andreputation of deceased. We understand from these questions that, had defendant been permitted to answer them, he would have testified that he had been told by others that the deceased was a violent and turbulent man, and went about armed. The court sustained an objection to the first of the above questions on the ground of in competency, and to the'second because it was not the proper way to show the character of the deceased. Counsel for the state insists that the character of the person killed can only be attacked by evidence of his general reputation in the neighborhood, and cannot be proved by specific acts of violence or turbulence, or by isolated facts, nor by the individual opinions of those who are acquainted with him. We agree that this is the general rule, but we do not think it is applicable to the question involved in the objection to the testimony sought to be drawn out by the two questions above.
If the defendant was justified in acting on the ap[609]*609pearances presented at the time of the killing, then the knowledge he had theretofore gained concerning the violent and dangerous character of the deceased tended to show his state of- mind and his good faith in the belief of his imminent danger when he fired the fatal shot. The effect on defendant’s mind would be the same whether he gained his information of the ■dangerous character of the deceased from his general reputation in the community or by personal observation of specific acts, or from persons who had knowledge of particular traits, but who knew nothing of the general reputation of the man. If defendant knew that deceased was a dangerous man, the influence of that knowledge on his conduct at the time of the killing could hardly be said to differ in whatever manner the information was derived, by hearsay or otherwise, and the same whether the fact was known by the community generally or not.
In the case of State v. Lull, 48 Vt. 581, 586, 11 L. R. A. 75, a prison-keeper was indicted for assault and battery on a prisoner. The latter had a hammer in his hand and appeared nervous and excited, though he made no attempt to strike, but the keeper .expected and feared a blow from him. It was held that the accused might show that the sheriff who committed the prisoner informed him that he- was dangerous and desperate. The court said :
“We think that the court erred in excluding the testimony offered to be shown by Mr. Tripp as to what he told the respondent at the time he delivered Kefoe to him at the state prison in respect to his being a violent and desperate man. It was an offer to show that Tripp told the respondent what the character of Kefoe was in respect to his being a violent and desperate man. The form of the words used is not so material as the idea conveyed. This evidence we think was fairly within the rule that the court laid [610]*610down as governing the kind of testimony that was admissible, not particular acts of violence, but the character of the man in that respect. Such evidence would be material in determining how far the respondent was justified in inflicting the blow which he did, taken in connection with the surrounding circumstances and the evidence exhibited by Kefoe of an intention at the time to make an attack upon the respondent ; and such evidence is always admissible as bearing upon the question as to whether a respondent had good reason to fear an attack upon himself, and acted in self-defense.” ( See, also, People v. Powell, 87 Cal. 348, 25 Pac. 481, 11 L. R. A. 75.)
The judgment of the court below will be reversed ' and a new trial ordered.
Johnston, Greene. Ellis, JJ., concurring.