admissible in evidence as being threats to kill others than deceased, where the theory of the state is that defendant and others had conspired together to kill all of those persons. Slade v. State, 29 Tex. App. 381.

On a trial for murder alleged to have been the result of a conspiracy, evidence of a threat made by the mob immediately after the homicide to kill another, and of their endeavors to execute such threat, was admissible as tending to show the desperate character of the conspiracy, and that murder was a part of its programme. State v. McCahill, 72 Iowa, 111.

Evidence of previous threats made by defendant against a railroad company is admissible on a trial for an assault upon one of its employés, upon the question of the motive and intent of the assailant. Newton v. State, 92 Ala. 33.

On a trial for homicide, evidence of a threat to kill the defendant, by a man whom the witness did not know to be the deceased except as he was informed by a bystander, is not admissible. Hasson v. Com. (Ky.) 10 Ky. L. Rep. 1054.

b. By the deceased.

Evidence of quarrelsome conduct and threats made by the deceased against a third party shortly before the killing is not admissible when not brought to the knowledge of the prisoner. People v. Henderson, 28 Cal. 465.

4. Threats by third persons.

A single isolated threat of a third party, unconnected with any other circumstance of the killing, is not admissible on a trial for homicide. Woolfolk v. State, 81 Ga. 551; Holt v. State, 9 Tex. App. 571.

On the trial of one for the murder of a woman, threats by the husband of the woman, made some time before, were held inadmissible, there being no evidence that the threats had been lately renewed or that the hostile feeling continued to the time of the killing. Com. v. Abbott, 130 Mass. 472.

Threats made by the brother of the accused against the deceased are inadmissible if the brother is not shown to have been indicted for the offense, and there is no evidence tending to show a conspiracy between the brothers as to the crime charged. State v. Laque, 41 La. Ann. 1070.

But threats by an accomplice of the defendant against the deceased because the latter was talking about his sister, are admissible because tending to show malice independent of the defendant, where the accomplice testified that he killed the deceased at the instigation of the defendant. Marler v. State, 67 Ala. 55, 42 Am. Rep. 95.

Threats of discharged employés against a railroad company are admissible in an action against it for personal injuries to a passenger by a wreck, in connection with evidence that the wreck was caused by a tie inserted in a frog in such a manner that it must have been placed there by human means; that there had been difficulty between the company and its employés; and that on the evening of the accident persons had been seen acting suspiciously on the tracks,—to show that the train had been wrecked by the intentional wrong doing of a third person. Worth v. Chicago, M. & St. P. R. Co. 51 Fed. Rep.

171.

5. General threats.

General threats made by the defendant on trial for murder, some time before the killing, are inadmissible in evidence, when defendant and deceased are shown to have been on friendly terms until the day of the homicide. State v. Crabtree (Mo.) July 1, 1892.

On a trial for murder a threat by the deceased, made the day before the murder, that he was going to win some money or kill some one, is not admissible where there is nothing to connect the threat with the defendant, although defendant shot him in a quarrel at a gaming table. King v. State, 89 Ala. 146. But evidence of a threat made by deceased just before the killing, not directed to the defendants in terms but plainly referring to them, is admissible. Sparks v. Com. 89 Ky. 644.

And in Whittaker v. Com. (Ky.) 13 Ky. L. Rep. 504, it was held that general threats by defendant to kill someone on that day accompanied by an exhibition or reference to a knife and pistol, though inadmissible as part of the res gesta of a homicide committed by him of which they formed no part, are competent to show general malice and a purpose to injure and kill someone.

And in Hopkins v. Com. 50 Pa. 9, 88 Am. Dec. 518, it was said not to be necessary that the victim should be selected. Threats of the prisoner within an hour before the stabbing that within twenty-four hours he would kill somebody are admissible as part of the res gesta.

The bare fact that threats uttered by one charged with murder, in the course of the transaction in which the crime was committed, did not disclose the name of the party threatened, does not make proof of them immaterial or irrelevant. State v. King, 9 Mont. 445.

Evidence that defendant, charged with murder, was heard to make threats, "to kill a man before sundown," on the day of the murder, is admissible. Hodge v. State, 26 Fla. 11.

6. Effect of lapse of time.

The remoteness or nearness of time as to threats and declarations, pertaining to the act subsequently committed makes no difference as to the competency of the testimony. Keener v. State, 18 Ga. 194; State v. Ford, 3 Strobh. L. 517. Evidence of threats made by a defendant on trial for murder against deceased four months previous to the killing is admissible. Pate v. State (Ala.) Jan. 8, 1892.

Threats against deceased made by defendant in a murder trial a month before the homicide are admissible upon the trial. State v. Campbell, 35 S. C. 28. Threats made three years before are admissible to show malice on the part of one who has committed an assault. Peterson v. Toner, 80 Mich. 350. See also Territory v. Roberts, 9 Mont. 12; Babcock v. People, 13 Colo. 515.

But the weight to be given to evidence of previous threats made by the defendant depends upon their character, the occasion, nearness of time, and the particular circumstances surrounding the offense. White v. Territory, 3 Wash. Ter. 397; People v. Brown, 76 Cal. 573; Cribbs v. State, 86 Ala. 613; State v. Glahn, 97 Mo. 679; Pate v. State (Ala.) Jan. 8, 1892; Griffin v. State, 90 Ala. 599; Long v. State, 86 Ala. 43; Barnes v. State, 88 Ala. 204; Evans v. State, 62 Ala. 6.

The fact that six or eight months have elapsed since the threat, goes not to the admissibility, but to the weight to be given to the threat. State v. Bradley (Vt.) Aug. 25, 1892.

And the effect of lapse of time upon their weight is for the jury. Cribbs v. State, 86 Ala. 613.

On an indictment for assault with intent to murder, a conversation was held inadmissible between witness and the injured party on the evening before the

shooting, in which the injured party had said that he had intended to kill defendant," the d-d son of a whore," though it appeared that witness had informed defendant of the insulting words, it not appearing that the shooting took place at the first meeting between the parties after defendant was so informed. Howard v. State, 23 Tex. App. 265.

The weight of authority establishes the doctrine that when a person being without fault and in a place where he has a right to be is violently assaulted, he may, without retreating, repel force by force and if, in the reasonable exercise of his right of selfdefense, his assailant is killed he is justifiable. Runyan v. State, 57 Ind. 84, 26 Am. Rep. 52; 1 Bishop, Crim. L. § 865.

§ 364. The Rule in Alabama.-The Alabama decisions hold, that after the intention of killing of the deceased with a deadly weapon had been proved, the burden rested on the defendant to prove a pressing necessity on his part to take life in self-defense, unless this fact arises out of the question produced against him to prove the homicide. The onus, therefore, rests on the defendant, in such case, to show that he could not safely retreat without apparently increasing his peril. This must be so, for the inability to safely retreat is one of the elements of fact which enters into and creates the necessity to kill. Carter v. State, 82 Ala. 13. If there be a safe mode of successful retreat, there can be no necessity to kill, unless the appearances surrounding the defendant reasonably indicate the contrary. Webster v. Com. 5 Cush. 295, 52 Am. Dec. 711. The rule as to the onus of proof on this point is stated in accordance with the above view in Cleveland v. State, 86 Ala. 2, which is of later authority than Brown v. State, 83 Ala. 33, where the contrary rule seems to be asserted. We believe the doctrine of Cleveland v. State to be correct, and adhere to it. Lewis v. State, 88 Ala. 11.

The burden was on the state, however, to show that the defendants were in fault in bringing on, or provoking the difficulty, -not on the defendants to prove that they did not provoke it. Brown v. State, supra; McDaniel v. State, 76 Ala. 1.

§ 365. Proof of Lying in Wait and Violent Temper.-The accused has a right to prove that a man, then dead, had but a short time before the homicide, told him that the deceased had armed himself with a shotgun to kill him. This was not legal evidence of deceased arming himself to kill accused, but it was competent to prove that accused had so heard, and may have a

right so to believe; and to that extent and for that purpose, it was admissible. Carico v. Com. 7 Bush, 124.

The opinion in the case last cited announces a rule of conduct, which if generally observed, would ultimately result in utter prostration of criminal justice stripped of its verbiage. This ghastly proposition may be paraphrased as follows: It is argued that the deceased made violent threats against the life of defendant long before, and up to a short period of the killing, and that these threats coming to a knowledge of defendant, he had a right to kill the deceased on sight.-Let the murderer show communication to him of statements made by the victim, that would lead him to apprehend attempts against his life, and such evidence will justify an acquittal!

Judge Caruthers, in commenting upon this edifying proposition, says: "We have had one case before us in the last few years, in which the broad proposition stated in the first of the above extract, was charged as the law. But for this, and the indication that it has obtained to some limited extent in the legal profession, it would scarcely be deemed necessary to notice it. There is no authority for such a position. It would be monstrous. No court should for a moment entertain or countenance it. The criminal code of no country ever has, nor, as we presume, ever will, give place to so bloody a principle."

"The threats of even a desperate man, do not, and ought not, to authorize the person threatened to take his life; nor does any demonstration of hostility short of a manifest attempt to commit a felony, justify a measure so extreme. But when one's life has been repeatedly threatened by such an enemy, when an actual attempt has been made to assassinate him, and when, after all this, members of his family have been informed by his assailant that he is to be killed on sight, we hold that he may lawfully arm himself to resist the threatened attack. He may leave his home for the transaction of his legitimate business, or for any lawful and proper purpose; and if, on such an occasion, he casually meets his enemy, having reason to believe him to be armed and ready to execute his murderous intentions, and he does believe, and from the threats, the previous assault, the character of the man, and the circumstances attending the meeting, he has the right to believe, that the presence of his adversary puts his life in imminent peril, and that he can secure his personal safety in no other way than

to kill him, he is obliged to wait until he is actually assailed. He may not hunt his enemy and shoot him down like a wild beast; nor has he the right to bring about an unnecessary meeting in order to have a pretext to slay him; but neither reason nor the law demands that he shall give up his business and 'abandon society to avoid such meeting.""

Upon the trial of an indictment for murder in the first degree, where the homicide is proved and the evidence discloses no circumstances indicating that it was committed under the influence of provocation at the time, or sudden anger, but it appears the act was done with premeditation, and deliberation, evidence that the prisoner had an irascible temper, or was subject to fits of passion from slight causes is incompetent.

So also evidence is incompetent that the conduct of the prisoner for a period prior to the homicide was characterized by eccentricities and peculiarities causing criticism with reference to his mental capacity, where the evidence is not offered for the purpose of proving insanity, but solely as bearing upon the question of intent, deliberation and premeditation. Sindram v. People, 88 N. Y. 196; Whart. & S. Medical Jurisprudence, $$ 307, 692.

After evidence has been given tending to show that a homicide was committed in self-defense, defendant can follow it by proof of general reputation of quarrelsomeness and violence of the deceased, but cannot give in evidence specific acts of deceased of violence towards third persons or of cruelty to domestic animals. People v. Druse, 5 N. Y. Crim. Rep. 10.

The question of the admissibility of the evidence of the general character of the deceased, is one of great doubt. The question first came up before the New York court of appeals in People v. Lamb, 2 Keyes, 371.

The prisoner in that case had been convicted of the murder of his wife. The defense seems to have been that the murder was committed in self-defense. The particular violence alleged against the deceased was that she threw the cover of an iron pot at her husband. The general term reversed the conviction. Evidence of the general character of accused, was in that case rejected, and the general term probably gave such refusal as a reason for the reversal of the conviction. In the court of appeals, Judge Davies, in an elaborate opinion, held the rejection of the evidence right, but the judgment of reversal was affirmed by a majority of the court on different grounds.