O’NIELL, J.
Appellant was prosecuted for the murder of one F. L. Sheppard, was convicted of manslaughter, and sentenced to serve a term of imprisonment in the penitentiary.
The record contains a number of bills ot exception, several of which were reserven [937]*937to rulings of the district judge refusing to allow defendant to introduce evidence of previous threats on the part of Sheppard to kill defendant. In offering the evidence, defendant’s counsel announced that the main purpose was to corroborate the testimony-given by defendant; that is, to prove that Sheppard had made a hostile demonstration as if to take the life of defendant, and that he (defendant) shot Sheppard in self-defense, believing that Sheppard was about to carry out his threats and that his (defendant’s) life was thereforé in imminent danger.
The reason assigned by the district judge for refusing to admit evidence of the previous threats on the part of the deceased was that, from the testimony already heard on the subject, “there was no doubt in the mind ■of the court as to who was the aggressor” in the fatal difficulty. The judge also expressed the opinion, in his statement per curiam, that proof of previous threats on the part of the deceased, in a prosecution involving a plea of self-defense, is not admissible or relevant to the question as to which one of the parties was the aggressor, unless the question as to who was the aggressor is a very close or doubtful question.
There is no dispute about the general outlines of the case. Defendant was about 17 years of age and resided with his mother, about 200 yards from the residence of Sheppard, on a country road. There was ill feeling between the two families, because Sheppard’s dogs had been annoying defendant’s mother’s hogs. On the day of the homicide, defendant, who was working at a sawmill, had come home for dinner and was taking a nap. His mother awoke him, telling him that Mr. Sheppard's dogs were again after her hogs. Hearing the dogs barking, he loaded his shotgun with buckshot and went towards Sheppard’s house. There he found that the dogs were helping Sheppard’s daughter to drive Sheppard’s hogs out of Sheppard's cornfield. The boy immediately returned towards his own home and had walked a distance of about 125 yards when he met Sheppard in an automobile. The latter was a rural mail carrier and was returning home from one of his regular trips. Sheppard’s 13 year old boy was with him on the front seat, and his 10 year old boy occupied the rear seat of the automobile.1 The ear passed very close by defendant, and, as he stepped aside, he told Sheppard, perhaps sarcastically, to look out or he would run over a good man. The .children in the automobile testified that defendant cursed their father when the automobile passed, but defendant denied the statement. It is not disputed that Sheppard stopped his automobile immediately. The car stopped a distance estimated at from 20 to ’50 feet beyond the point where it had passed defendant, and Sheppard immediately got out of the car. The boy on the front seat grabbed his father’s arm and attempted to prevent his getting out, because, as the boy testified, he had heard defendant curse his father and feared there would be trouble. Defendant testified that, as soon as the car-stopped, Sheppard turned towards him and said: “What did you say, you G-d-s-of a b-?” He testified that Sheppard then immediately stei>ped out of the car, and, advancing toward him, said: “You’ve got your gun; I’ll see if you will use it.” That he (defendant) raised his gun and told Sheppard to stop; and that Sheppard then placed his hand on his hip pocket and said: “I’m going to kill you, you little whiteheaded s-of a b-.” Whereupon, he (defendant) shot Sheppard.
The two boys who had been riding in the ear, and two daughters of Sheppard, who had witnessed the homicide from a considerable distance, testified that their father was in the act of getting out of the car, and in fact had one foot yet on the running board, when he. was shot. The two. daughters .of [939]*939Sheppard also testified that defendant had stopped by the roadside and was sitting on a log when the automobile came in sight, and that he then arose and stood by a tree. But defendant denied that statement. It is not disputed that Sheppard was shot in the thigh and that he must have been facing defendant when the shot was fired. There was no weapon found on the deceased or in the automobile. He did not have on a coat at the time he was shot.
The only question of fact pertaining to the guilt or innocence of the accused, which the jury had to decide, was whether defendant’s statement, that Sheppard advanced upon him in such a threatening way as to give him good reason to believe that his life was in imminent danger, was a true or a false statement. The question was simply one of veracity between the defendant and the state’s witnesses. To the question thus presented to the jury, proof of previous threats on the part of Sheppard to take defendant’s life was surely relevant. In fact, the proof would not have been relevant to any other question because previous threats on the part of the deceased would not, alone, have justified the killing.
The evidence offered by defendant, of the alleged previous threats, consisted of the testimony of defendant’s mother, to the effect that Sheppard had, some days before the fatal difficulty, come to her house and abused and cursed her and told her that he intended to kill defendant; and it consisted also of the testimony of four other witnesses, to the effect that Sheppard had, during the week preceding the homicide, boasted to them of the threat which he had made to kill defendant. Two of the latter witnesses would have testified that Sheppard had ..told them, on separate occasions during the week preceding the homicide, that he was armed with a 38 special, with which to kill defendant. Several of the witnesses would have testified that they had warned defendant of the threats.
[1] Proof of such threats was relevant to the question whether defendant’s statement was true that the deceased made a hostile demonstration as if to take defendant’s life, and that defendant had reason, to believe that his life was in imminent danger, when he fired the fatal shot. On that question depended defendant’s plea of self-defense, and it was therefore the only question of fact upon which depended his guilt or innocence. The burden of proof of the facts relating to a plea of self-defense rests, not upon the defendant, but upon the state. As self-defense is not a special plea, the burden of proof rests upon the state to show, beyond a reasonable doubt, that the killing was done feloniously, and not in self-defense, in order to cónviet the party accused of a felonious homicide.
In State v. Ardoin, 128 La. 14, 54 South. 407, Ann. Cas. 1912C, 45, it was held:
“The plea of self-defense does not place upon the accused the burden of proving it, nor does it change the duty of the state to prove the guilt of the accused beyond a reasonable doubt.”
The doctrine was approved in State v. Varnado, 128 La. 883, 55 South. 562, viz.:
“Accused, relying on self-defense, does not have the burden of proving that the killing was justifiable; but the state has the burden of proving beyond a reasonable doubt that the killing was not justifiable.”
The doctrine was again affirmed in State v. Herring, 131 La. 972, 60 South. 634, viz.:
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O’NIELL, J.
Appellant was prosecuted for the murder of one F. L. Sheppard, was convicted of manslaughter, and sentenced to serve a term of imprisonment in the penitentiary.
The record contains a number of bills ot exception, several of which were reserven [937]*937to rulings of the district judge refusing to allow defendant to introduce evidence of previous threats on the part of Sheppard to kill defendant. In offering the evidence, defendant’s counsel announced that the main purpose was to corroborate the testimony-given by defendant; that is, to prove that Sheppard had made a hostile demonstration as if to take the life of defendant, and that he (defendant) shot Sheppard in self-defense, believing that Sheppard was about to carry out his threats and that his (defendant’s) life was thereforé in imminent danger.
The reason assigned by the district judge for refusing to admit evidence of the previous threats on the part of the deceased was that, from the testimony already heard on the subject, “there was no doubt in the mind ■of the court as to who was the aggressor” in the fatal difficulty. The judge also expressed the opinion, in his statement per curiam, that proof of previous threats on the part of the deceased, in a prosecution involving a plea of self-defense, is not admissible or relevant to the question as to which one of the parties was the aggressor, unless the question as to who was the aggressor is a very close or doubtful question.
There is no dispute about the general outlines of the case. Defendant was about 17 years of age and resided with his mother, about 200 yards from the residence of Sheppard, on a country road. There was ill feeling between the two families, because Sheppard’s dogs had been annoying defendant’s mother’s hogs. On the day of the homicide, defendant, who was working at a sawmill, had come home for dinner and was taking a nap. His mother awoke him, telling him that Mr. Sheppard's dogs were again after her hogs. Hearing the dogs barking, he loaded his shotgun with buckshot and went towards Sheppard’s house. There he found that the dogs were helping Sheppard’s daughter to drive Sheppard’s hogs out of Sheppard's cornfield. The boy immediately returned towards his own home and had walked a distance of about 125 yards when he met Sheppard in an automobile. The latter was a rural mail carrier and was returning home from one of his regular trips. Sheppard’s 13 year old boy was with him on the front seat, and his 10 year old boy occupied the rear seat of the automobile.1 The ear passed very close by defendant, and, as he stepped aside, he told Sheppard, perhaps sarcastically, to look out or he would run over a good man. The .children in the automobile testified that defendant cursed their father when the automobile passed, but defendant denied the statement. It is not disputed that Sheppard stopped his automobile immediately. The car stopped a distance estimated at from 20 to ’50 feet beyond the point where it had passed defendant, and Sheppard immediately got out of the car. The boy on the front seat grabbed his father’s arm and attempted to prevent his getting out, because, as the boy testified, he had heard defendant curse his father and feared there would be trouble. Defendant testified that, as soon as the car-stopped, Sheppard turned towards him and said: “What did you say, you G-d-s-of a b-?” He testified that Sheppard then immediately stei>ped out of the car, and, advancing toward him, said: “You’ve got your gun; I’ll see if you will use it.” That he (defendant) raised his gun and told Sheppard to stop; and that Sheppard then placed his hand on his hip pocket and said: “I’m going to kill you, you little whiteheaded s-of a b-.” Whereupon, he (defendant) shot Sheppard.
The two boys who had been riding in the ear, and two daughters of Sheppard, who had witnessed the homicide from a considerable distance, testified that their father was in the act of getting out of the car, and in fact had one foot yet on the running board, when he. was shot. The two. daughters .of [939]*939Sheppard also testified that defendant had stopped by the roadside and was sitting on a log when the automobile came in sight, and that he then arose and stood by a tree. But defendant denied that statement. It is not disputed that Sheppard was shot in the thigh and that he must have been facing defendant when the shot was fired. There was no weapon found on the deceased or in the automobile. He did not have on a coat at the time he was shot.
The only question of fact pertaining to the guilt or innocence of the accused, which the jury had to decide, was whether defendant’s statement, that Sheppard advanced upon him in such a threatening way as to give him good reason to believe that his life was in imminent danger, was a true or a false statement. The question was simply one of veracity between the defendant and the state’s witnesses. To the question thus presented to the jury, proof of previous threats on the part of Sheppard to take defendant’s life was surely relevant. In fact, the proof would not have been relevant to any other question because previous threats on the part of the deceased would not, alone, have justified the killing.
The evidence offered by defendant, of the alleged previous threats, consisted of the testimony of defendant’s mother, to the effect that Sheppard had, some days before the fatal difficulty, come to her house and abused and cursed her and told her that he intended to kill defendant; and it consisted also of the testimony of four other witnesses, to the effect that Sheppard had, during the week preceding the homicide, boasted to them of the threat which he had made to kill defendant. Two of the latter witnesses would have testified that Sheppard had ..told them, on separate occasions during the week preceding the homicide, that he was armed with a 38 special, with which to kill defendant. Several of the witnesses would have testified that they had warned defendant of the threats.
[1] Proof of such threats was relevant to the question whether defendant’s statement was true that the deceased made a hostile demonstration as if to take defendant’s life, and that defendant had reason, to believe that his life was in imminent danger, when he fired the fatal shot. On that question depended defendant’s plea of self-defense, and it was therefore the only question of fact upon which depended his guilt or innocence. The burden of proof of the facts relating to a plea of self-defense rests, not upon the defendant, but upon the state. As self-defense is not a special plea, the burden of proof rests upon the state to show, beyond a reasonable doubt, that the killing was done feloniously, and not in self-defense, in order to cónviet the party accused of a felonious homicide.
In State v. Ardoin, 128 La. 14, 54 South. 407, Ann. Cas. 1912C, 45, it was held:
“The plea of self-defense does not place upon the accused the burden of proving it, nor does it change the duty of the state to prove the guilt of the accused beyond a reasonable doubt.”
The doctrine was approved in State v. Varnado, 128 La. 883, 55 South. 562, viz.:
“Accused, relying on self-defense, does not have the burden of proving that the killing was justifiable; but the state has the burden of proving beyond a reasonable doubt that the killing was not justifiable.”
The doctrine was again affirmed in State v. Herring, 131 La. 972, 60 South. 634, viz.:
“Notwithstanding that a plea of self-defense, in a prosecution for murder, admits the killing, the burden of proof rests upon the state throughout the trial, and all the evidence considered to establish the guilt of the accused beyond a reasonable doubt. This court has so held in oases heretofore decided, and adheres to that view.”
It would be entirely inconsistent with the doctrine quoted, to hold that a defendant, [941]*941pleading self-defense in a prosecution for murder, must prove, even by a preponderance of evidence, before being allowed to introduce evidence of previous threats on the part of the deceased, that the latter made such a hostile demonstration as to justify defendant’s belief that his life was in imminent danger when he fired the fatal shot. It would require the defendant to first eliminate the very issue, and the only issue, to which the evidence of previous threats would be relevant, before allowing him to introduce the evidence of previous threats. Such a doctrine would deny the defendant the right to introduce evidence of previous threats, except in a case in which he would not need the evidence. To use a trite illustration, it would leave the defendant, in such case, in the situation of the boy who was forbidden to go in swimming until he should learn how to swim.
[2] Of course, if it were the province of the district judge and of this court to decide the question of veracity of the defendant and that of the witnesses for the state, as to whether it was the deceased or the defendant who was the aggressor in the fatal difficulty, we might well find a preponderance of evidence in favor of the state, and might even be convinced beyond a reasonable doubt. But, in criminal prosecutions, the jurors alone answer questions of fact pertaining to the guilt or innocence of the party accused; judges answer only questions of law, or questions of fact upon which a ruling rests and which do not pertain to the guilt or innocence of the party accused. As was said in the case of State v. Pairs, 145 La. 443, 82 South. 407:
“For the district court to withhold from the jurors and decide for them a question of fact on which depends the guilt or innocence of defendant in a criminal casé is a violation of Const, art. 179, providing that the jurors shall be the judges of the facts pertaining to guilt or innocence.
“For the Supreme Court to decide questions of fact on which depend the guilt or innocence of defendant in á criminal dase is a violation of Const, art. 85, confining the jurisdiction of the court in criminal cases to questions of law.”
In the case last cited, we quoted with approval Bice on Evidence (Criminal) vol. 3, p. 575, § 362, viz.:
“Threats of violence by the deceased against the accused, though not communicated to the latter, are admissible as evidence where there is any doubt as to who began the encounter. They tend to show that it was the intention of the deceased at the time of the meeting to attack the accused, and hence tend to prove that the former brought on the conflict, and are relevant evidence. If all the evidence is to the effect that the defendant was the aggressor, it is not admissible.”
Our conclusion is that it was an error on the part of the district judge to refuse to admit proof of the alleged threats.
The verdict and sentence appealed from are annulled, and it is ordered that this case be remanded to the district court for a new trial.
MONBOE, C. X, and PBOYOSTY and SOMMEBVILLE, XT., concur in the decree.
DAWKINS, X, takes no part.