Mr. Justice Miller
delivered the opinion of the court.
Sect. 3 of the act of Congress of June 23,1874.(18 Stat. 254), allows a writ of. error from this court to the Supreme Court of the Territory of Utah, where the defendant has been convicted of bigamy or polygamy, or has been sentenced to death for any crime. The present writ is brought under that statute to obtain a review of a sentence of death against plaintiff in error for the [466]*466murder of John Kramer, commonly called Dutch John, in Salt Lake City. The only error insisted upon by counsel, who argued this case orally, was the rejection of testimony offered by the prisoner, as shown by the following extract from the bill of exceptions: —
The defendant, on the trial of this cause, called Robert Heslop . as a witness in his defence, who testified: —
“ That, just-a short time before the shooting, the deceased showed him a pistol which he (deceased) then had upon his person. Deceased, at this time, was sitting on a box on the opposite side of the street from the Salt 'Lake House, and in front of Reggels’s store.
“ The prosecuting attorney admitted that this was after • the •deceased was ejected from defendant’s saloon.
“Whereupon the counsel for the defendant asked witness the following questions: —
“ What, if any, threats did the deceased make against the defendant at this time? which was objected to by the prosecuting attorney, for the reason it was immaterial.
“ The objection was sustained by the court, arid the defendant, by his counsel, then and there duly excepted.
“ Defendant’s counsel then asked witness, what, if any thing, did deceased then say concerning the defendant.
“ (Objected to by prosecuting attorney as incompetent.)
“Defendant’s counsel thereupon stated that they expected to prove by this witness that in that conversation, a short time prior to the killing, the deceased, in the hearing of said witness, made the threat that he would kill the' defendant before he went to bed on the night of the homicide, which threats we cannot bring home to ■tbe'knowledge of the defendant.
“Which was objected to by the counsel for the prosecution, because it was incompetent.
“ The objection was sustained by the courtrto which the defendant then and there excepted.
“ This witness, and several others, testified that the deceased’s general character was bad, and that he was a. dangerous, violent, vindictive, and brutal man.”
Although there is. some conflict of 'authority as to the admission of threats of the deceased against the prisoner in a case of homicide, where the threats had not been communicated to him, [467]*467there is a modification of the doctrine in more recent times, established by the decisions of courts of high authority, which is very well stated by Wharton, in his work on Criminal Law, § 1027: “ Where the question is as to what was deceased’s attitude at the time of the fatal encounter, recent threats may become relevant to show that this attitude was' one hostile to the defendant, even though such threats were not communicated to defendant. The evidence is not relevant to show the quo animo of the defendant, but it may be relevant to show that, at the time of the meeting, the deceased was seeking defendant’s life.” Stokes v. People of New York, 53 N. Y. 174; Keener v. State, 18 Ga. 194; Campbell v. People, 16 Ill. 18; Holler v. State, 37 Ind. 57; People v. Arnold, 15 Cal. 476; People v. Scroggins, 37 id. 676.
Counsel for the government, conceding this principle to be sound, sustains the ruling of the court below, on the ground that there is no evidenee in the case to show any hostile movement or attitude of the deceased towards the prisoner at -the time of the fatal shot, and that there is conclusive evidence to the contrary. In support of this latter position, he relies on' the testimony of Thomas Dobson, the only witness of the meeting which resulted in the death" of deceased by a pistol-shot from defendant.
Before criticising Dobson’s testimony, it is necessary to state some preliminary matters.
It appears that, on the night of the homicide, the deceased and a man of similar character, called Bill Dean, got into a quarrel, in a di’inking-saloon kept by defendant, in which they both drew pistols. Defendant interposed, and took their pistols from them, and turned them out of his saloon hy different doors. He gave Dean his pistol as he turned him out, and asserts that he also returned 'the deceased Ms pistol; but of this there is doubt. Shortly after this, he started homewards, and fell in company with Dobson, who was a night watchman of Salt Lake City. As they wept along the street, Dean was discovered in the recess of a doorway on the sidewalk with a pistol, in. his hands, and defendant went- up to him, took it ’away from him, and he ran down the. street: Passing on, Dobson and defendant came in front of a hotel, the Salt Lake House, [468]*468where the homicide occurred, of which Dobson, the only witness, tells his story thus: —
“ As I came down street, about two o’clock in the morning, I saw Dutch John sitting on the carriage-steps of the Salt Lake House, with his face resting on his hands, apparently in a stupor or asleep. Wiggins,.the defendant, was with me. He (Wiggins)-■ jumped to my rear, and immediately the firing commenced. ' I do not know, and cannot tell, who fired the first shot. At the first report, I turned round and saw the' blaze of the second shot from a pistol in the hands of Wiggins. I had advanced to the carriage-steps, and said, ‘Jack, don’t kill him.’ Wiggins then,jumped on carriage-steps and fired another shot, which passed right by in front of me and into the body of Dutch- John. Dutch John grabbed me around the legs, and we fell over the steps into the street. When I turned and saw the first .shot from Wiggins’s pistol, I saw Dutch John’s hands raised, and- beard him cry out, ‘ Don’t kill me; I am not armed.’ Immediately after the firing ceased, Wiggins stooped down as if to pick up something, and when he raised up he had something in his left hand; but I cannot tell whether it was a pistol or not. At the same time, Wiggins made the remark to the deceased, ‘ You wanted to kill me,’ or ‘ You tried to kill me.’ I am not sure which expression was used.”
If we are to believe implicitly all' that is here said by this witness, we do not see in it conclusive evidence that defendant fired the first shot, and that no previous demonstration was made by deceased. On the contrary, he says he does not know, and cannot tell, who fired the first shot. He does say, that, when the vision of- Dutch John met their eyes, the defendant- “ jumped- behind witness, and immediately ” (that is,-just after) “ the firing commenced.” He also says, that, immediately after the firing ceased, defendant stooped down as if to pick up something, and arose with something in his hand.
We do not think that this statement proves at all, certainlnot conclusively, that deceased did not fire the first shot.
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Mr. Justice Miller
delivered the opinion of the court.
Sect. 3 of the act of Congress of June 23,1874.(18 Stat. 254), allows a writ of. error from this court to the Supreme Court of the Territory of Utah, where the defendant has been convicted of bigamy or polygamy, or has been sentenced to death for any crime. The present writ is brought under that statute to obtain a review of a sentence of death against plaintiff in error for the [466]*466murder of John Kramer, commonly called Dutch John, in Salt Lake City. The only error insisted upon by counsel, who argued this case orally, was the rejection of testimony offered by the prisoner, as shown by the following extract from the bill of exceptions: —
The defendant, on the trial of this cause, called Robert Heslop . as a witness in his defence, who testified: —
“ That, just-a short time before the shooting, the deceased showed him a pistol which he (deceased) then had upon his person. Deceased, at this time, was sitting on a box on the opposite side of the street from the Salt 'Lake House, and in front of Reggels’s store.
“ The prosecuting attorney admitted that this was after • the •deceased was ejected from defendant’s saloon.
“Whereupon the counsel for the defendant asked witness the following questions: —
“ What, if any, threats did the deceased make against the defendant at this time? which was objected to by the prosecuting attorney, for the reason it was immaterial.
“ The objection was sustained by the court, arid the defendant, by his counsel, then and there duly excepted.
“ Defendant’s counsel then asked witness, what, if any thing, did deceased then say concerning the defendant.
“ (Objected to by prosecuting attorney as incompetent.)
“Defendant’s counsel thereupon stated that they expected to prove by this witness that in that conversation, a short time prior to the killing, the deceased, in the hearing of said witness, made the threat that he would kill the' defendant before he went to bed on the night of the homicide, which threats we cannot bring home to ■tbe'knowledge of the defendant.
“Which was objected to by the counsel for the prosecution, because it was incompetent.
“ The objection was sustained by the courtrto which the defendant then and there excepted.
“ This witness, and several others, testified that the deceased’s general character was bad, and that he was a. dangerous, violent, vindictive, and brutal man.”
Although there is. some conflict of 'authority as to the admission of threats of the deceased against the prisoner in a case of homicide, where the threats had not been communicated to him, [467]*467there is a modification of the doctrine in more recent times, established by the decisions of courts of high authority, which is very well stated by Wharton, in his work on Criminal Law, § 1027: “ Where the question is as to what was deceased’s attitude at the time of the fatal encounter, recent threats may become relevant to show that this attitude was' one hostile to the defendant, even though such threats were not communicated to defendant. The evidence is not relevant to show the quo animo of the defendant, but it may be relevant to show that, at the time of the meeting, the deceased was seeking defendant’s life.” Stokes v. People of New York, 53 N. Y. 174; Keener v. State, 18 Ga. 194; Campbell v. People, 16 Ill. 18; Holler v. State, 37 Ind. 57; People v. Arnold, 15 Cal. 476; People v. Scroggins, 37 id. 676.
Counsel for the government, conceding this principle to be sound, sustains the ruling of the court below, on the ground that there is no evidenee in the case to show any hostile movement or attitude of the deceased towards the prisoner at -the time of the fatal shot, and that there is conclusive evidence to the contrary. In support of this latter position, he relies on' the testimony of Thomas Dobson, the only witness of the meeting which resulted in the death" of deceased by a pistol-shot from defendant.
Before criticising Dobson’s testimony, it is necessary to state some preliminary matters.
It appears that, on the night of the homicide, the deceased and a man of similar character, called Bill Dean, got into a quarrel, in a di’inking-saloon kept by defendant, in which they both drew pistols. Defendant interposed, and took their pistols from them, and turned them out of his saloon hy different doors. He gave Dean his pistol as he turned him out, and asserts that he also returned 'the deceased Ms pistol; but of this there is doubt. Shortly after this, he started homewards, and fell in company with Dobson, who was a night watchman of Salt Lake City. As they wept along the street, Dean was discovered in the recess of a doorway on the sidewalk with a pistol, in. his hands, and defendant went- up to him, took it ’away from him, and he ran down the. street: Passing on, Dobson and defendant came in front of a hotel, the Salt Lake House, [468]*468where the homicide occurred, of which Dobson, the only witness, tells his story thus: —
“ As I came down street, about two o’clock in the morning, I saw Dutch John sitting on the carriage-steps of the Salt Lake House, with his face resting on his hands, apparently in a stupor or asleep. Wiggins,.the defendant, was with me. He (Wiggins)-■ jumped to my rear, and immediately the firing commenced. ' I do not know, and cannot tell, who fired the first shot. At the first report, I turned round and saw the' blaze of the second shot from a pistol in the hands of Wiggins. I had advanced to the carriage-steps, and said, ‘Jack, don’t kill him.’ Wiggins then,jumped on carriage-steps and fired another shot, which passed right by in front of me and into the body of Dutch- John. Dutch John grabbed me around the legs, and we fell over the steps into the street. When I turned and saw the first .shot from Wiggins’s pistol, I saw Dutch John’s hands raised, and- beard him cry out, ‘ Don’t kill me; I am not armed.’ Immediately after the firing ceased, Wiggins stooped down as if to pick up something, and when he raised up he had something in his left hand; but I cannot tell whether it was a pistol or not. At the same time, Wiggins made the remark to the deceased, ‘ You wanted to kill me,’ or ‘ You tried to kill me.’ I am not sure which expression was used.”
If we are to believe implicitly all' that is here said by this witness, we do not see in it conclusive evidence that defendant fired the first shot, and that no previous demonstration was made by deceased. On the contrary, he says he does not know, and cannot tell, who fired the first shot. He does say, that, when the vision of- Dutch John met their eyes, the defendant- “ jumped- behind witness, and immediately ” (that is,-just after) “ the firing commenced.” He also says, that, immediately after the firing ceased, defendant stooped down as if to pick up something, and arose with something in his hand.
We do not think that this statement proves at all, certainlnot conclusively, that deceased did not fire the first shot. Either there must have been some reason for defendant’s jumping behind witness, and he must have picked up a pistol which fell from the hands of deceased, or he was guilty of. consummate acting, for the purpose .of deceiving witness,, and making evidence to defend'himself from the charge of a murder which he intended to commit.
[469]*469It is difficult to believe that, on a sudden encounter, any one would have such cool deliberation; and it is much more reasonable to believe that the seeking of safety, by jumping behind the witness, was caused by some movement or other evidence of hostile intent by deceased which escaped the less vigilant eye of witness, and that it was the display of the pistol which the defendant afterwards picked up. This latter view is supported by other testimony, to be presently noticed.
But it is pertinent here to remark, that both the effect of this witness’s testimony and his credibility were to be weighed by the jury, and that doubt .was thrown on the latter by showing, that, in the preliminary examination, he had made statements at variance with what he now stated, which were more favorable to defendant.
Take all these together, and we think the court had no right to assume that it was beyond doubt that defendant had commenced the assault, which resulted in death, by firing the first shot, without any cause, real or apparent. In this we are confirmed by other parts of the testimony displayed in the bill of exceptions.
It. is nowhere asserted that defendant fired more than three shots. A witness, however, who was within hearing, swears positively that he heard four shots. In agreement with this, it is proved, without contradiction, that when defendant was arrested, immediately after the shooting, three pistols were found on him. Of one of these, three barrels were empty; of another, one; and the third was fully loaded. The police-officer who arrested defendant says of these pistols, “ The one identified as Dutch John’s had one chamber empty; the one identified as Bean’s had three chambers empty; and the derringer was loaded.” It is a fair inference that the three empty barrel's were those he had discharged at. deceased, and that the other was the one he had picked up after the shooting, which had been in the hands of deceased.
Whence comes the fourth shot, and who emptied the chamber of deceased’s pistol ? That deceased had a pistol with him is a concession made by the prosecuting attorney on .the trial. It will be-seen, in the extract from the bill of exceptions first given, that the witness, Heslop, testifies positively, that, just a [470]*470short time before the shooting, the deceased showed him a pistol, which he then had on his person, while sitting on a box on the side of the street opposite the scene of the homicide; and the prosecution admitted that this was after the deceased had been, ejected from the saloon. '
Here, then, was a man who had, a few hours or minutes before, had a difficulty, in which pistols were drawn; who was known to be of desperate and vindictive character; who had shown a witness a pistol within a few minutes preceding the fatal encounter, and that pistol was, after the encounter, picked up on the sidewalk, where it occurred, with a chamber empty. Also, strong 'evidence to show that one more shot was fired than defendant had fired, and the probability that it came from the pistol of deceased at that time.
Now, when, under all these circumstances, the witness, and the only witness who was present at the encounter, swears that he cannot tell .where the first shot came from, though he knows that defendant only fired three, it must be very apparent, that if the person, to whom the deceased exhibited that pistol a few minutes before the shooting, had been permitted to tell the jury that deceased then said, “he would kill defendant before he went to bed that night,” it would have tended strongly to show where that first shot came from, and how that pistol, with one chamber emptied, came to be found on the ground. This testimony might, in the state of mind produced on the jury by the other evidence we have considered, have turned the scale in -fayor-'of defendant. At all events, we are of opinion that in that condition of things it was relevant to the issue, and should have been admitted.
Judgment reversed, with directions to set aside the verdict, and grant a new trial.