as such was known to the defendant.so The evidence of the character of the deceased must not be too remote or it may be excluded as irrelevant. It is his character for peace and quietude at the date of the homicide which is relevant.81

§ 325. Nature of the proof required to show character of deceased. -The majority of the cases reject evidence to prove the actual ioral character or disposition of the deceased, i. e., his inclination to do right, but admit his reputation in evidence, that is, the general knowledge or opinion of his character and disposition which prevails among his neighbors and acquaintances. 82 The

83

84

reputation of the deceased for vindictiveness or quarrelsomeness cannot be shown by proving specific acts of violence to third persons, or acts of violence unless so connected with the fatal rencontre as to produce a reasonable apprehension of grievous bodily harm, as, for example, that he was an escaped convict, or that he had threatened to shoot or kill a third person.85 The prosecu: tion may show that deceased was unarmed when killed, but not that he was in the habit of going unarmed and had refused to arm himself. Nor can the prosecution put in evidence that the deceased was not in the habit of using vulgar and profane lan

86

Ann. 443, 460; State v. Kenyon, 18 R. I. 217, 26 Atl. 199; State v. Smith, 12 Rich. (S. Car.) 430, 441; Payne v. Commonwealth, 1 Met. (Ky.) 370, 397; State v. Keefe, 54 Kan. 197, 203, 204, 38 Pac. 302; Dukes v. State, II Ind. 557, 565, 71 Am. Dec. 370; Keener v. State, 18 Ga. 194, 222224, 63 Am. Dec. 269; Commonwealth v. Hoskins (Ky.), 35 S. W. 284, 18 Ky. L. 59; Stalcup v. State, 146 Ind. 270, 45 N. E. 334; Elliott Evidence,

3038; 14 L. R. A. (N. S.) 708, note. Contra, State v. Brown, 63 Mo. 439, 443; Marts v. State, 26 Ohio St. 162, 168, admitting evidence of disposition. Weaver v. State, 83 Ark. 119, 102 S. W. 713; Brownlee v. State, 48 Tex. Cr. 408, 87 S. W. 1153; Kennedy v. Commonwealth (Ky.), 102 S. W. 863, 31 Ky. L. 546.

83

'People v. Powell, 87 Cal. 348, 361, 25 Pac. 481, 11 L. R. A. 75; State v. Dean, 72 S. Car. 74, 51 S. E. 524; McCoy v. State, 91 Miss. 257, 44 So. 814; People v. Gaimari, 176 N. Y. 84, 68 N. E. 112; People v. Rodawald, 177 N. Y. 408, 70 N. E. 1; Warrick v. State, 125 Ga. 133, 53 S. E. 1027; Smith v. State, 142 Ala. 14, 39 So. 329; State v. Roderick, 77 Ohio St. 301, 82 N. E. 1082, 14 L. R. A. (N. S.)

704n; Hardgraves V. State

v. Commonwealth (Ky.), 102 S. W. 812, 31 Ky. L. 536.

84

Ferrel v. Commonwealth (Ky.), 23 S. W. 344, 15 Ky. L. 321; Eggler v. People, 56 N. Y. 642, 643; People v. Druse, 103 N. Y. 655, 656, 8 N. E. 733; Campbell v. State, 38 Ark. 498; Garrett v. State, 97 Ala. 18, 25, 14 So. 327; Dupree v. State, 33 Ala. 380, 387, 73 Am. Dec. 422; Nichols v. People, 23 Hun (N. Y.) 165, 167; Croom v. State, 90 Ga. 430, 434, 17 S. E. 1003; State v. Jones, 134 Mo. 254, 35 S. W. 607; State v. Peffers, 80 Iowa 580, 583, 46 N. W. 662; People v. Smith, 9 Cal. App. 644, 99 Pac. III; Dean v. Commonwealth (Ky.), 78 S. W. 1112, 25 Ky. L. 1876; Cole v. State, 51 Tex. Cr. 89, 101 S. W. 218; St. Clair v. State, 49 Tex. Cr. 479, 92 S. W. 1095; State v. Foster, 136 Iowa 527, 114 N. W. 36; Cole v. State, 48 Tex. Cr. 439, 88 S. W. 341; United States v. Densmore, 12 N. Mex. 99, 75 Pac. 31; Darter v. State, 39 Tex. Cr. 40, 44 S. W. 850; State v. Andrews, 73 S. Car. 257, 53 S. E. 423; Sneed v. Territory, 16 Okla. 641, 86 Pac. 70.

Jenkins v. State, 80 Md. 72, 30 Atl. 566; Ryan v. State (Tex., 1896), 35 S. W. 288.

86

People v. Powell, 87 Cal. 348, 363, 88 Ark. 261, 114 S. W. 216; Sturgeon 25 Pac. 481, 11 L. R. A. 75; Jackson

87

guage or that he was a good church member. 86a In a case where the accused alleges that the killing was in self-defense he may prove that the deceased was in the habit of carrying a pistol or other concealed weapon. But as a preliminary to such evidence the accused must show some justification and must also show that he had knowledge of the habit of the deceased in carrying weapons. In some states the threats of the deceased or his dangerous, violent or vindictive character are only admissible when it is proved that, at the time of the homicide, he assaulted the accused, indulged in hostile demonstrations against him or did some act indicating a purpose to do him serious bodily harm.88 Mere evidence of an overt act, not amounting to proof, is not enough. Whether an overt act has been proved is a preliminary question bearing on the competency of evidence, and is for the judge. His determination is conclusive.89 But it has been held that the court cannot exclude evidence of bad character and threats unless it is satisfied, not only that no overt act has been proved, but that there is no evidence from which an overt act can be inferred. If the evidence of an overt act is conflicting, it should go to the jury with evidence of the bad reputation and threats." The overt act must have been against the accused and not a third person."

91

§ 326. Evidence of threats by the deceased.-Evidence of threats by the deceased, whether made to the accused or to others, and

v. State, 41 So. 178, 147 Ala. 699, not reported in full; Moore v. State, 86 Miss. 160, 38 So. 504.

333; Hill v. State (Miss., 1895), 16 So. 901; Travers v. United States, 6 App. D. C. 450; Smith v. State, 142

sa Bowles v. Commonwealth, 103 Ala. 14, 39 So. 329; Roch v. State,

Va. 816, 48 S. E. 527.

ST Gibbs v. State, 156 Ala. 70, 47 So. 65; State v. Exum, 138 N. Car. 599, 50 S. E. 283; Sims v. State, 139 Ala. 74, 36 So. 138, 101 Am. St. 17; Jackson v. State, 41 So. 178, 147 Ala. 699, not reported in full; Commonwealth v. Booker (Ky.), 76 S. W. 838, 25 Ky. L. 1025; Warrick v. State, 125 Ga. 133, 53 S. E. 1027; Rodgers v. State, 144 Ala. 32, 40 So. 572.

State v. King, 47 La. Ann. 28, 16 So. 566; West v. State, 18 Tex. App. 640, 652; Eiland v. State, 52 Ala. 322,

52 Tex. Cr. 48, 105 S. W. 202; Green v. State, 143 Ala. 2, 39 So. 362.

89 State v. Ford, 37 La. Ann. 443, 460.

State v. Abbott, 8 W. Va. 741, 759; Hawthorne v. State, 61 Miss. 749, 753; Smith v. State, 75 Miss. 542, 23 So. 260; McHugh v. Territory, 17 Okla. 1, 86 Pac. 433.

91 Moriarity v. State, 62 Miss. 654. 661; White v. Commonwealth, 125 Ky. 699, 102 S. W. 298, 1199, 31 Ky. L. 271, 720.

communicated to him, is always admissible to show the defendant's motive. If the evidence tends to show that the killing was in self-defense, threats may be proved to show that the accused believed he was in imminent danger of death or wounding by the deceased. The accused may prove the existence of a conspiracy to kill or assault him in which deceased participated. If the homicide occurred in an affray growing out of the conspiracy, he may prove the acts and threats of any or all the conspirators as the acts and declarations of the deceased, for the same purposes that threats actually made by the deceased may be shown.93 The gencral rule permits the communicated threats of the deceased to be proved, though no evidence of any overt act is offered." But threats are inadmissible if it indubitably appears that the accused was the aggressor, or that he had no reasonable grounds for apprehending an attack when he killed the deceased. Usually there

92

Pate v. State, 54 Tex. Cr. 462, 113 S. W. 759; State v. Rideau, 116 La. 245, 40 So. 691; State v. Barksdale, 122 La. 788, 48 So. 264; State v. Coleman, 119 La. 669, 44 So. 338; Dunn v. State, 143 Ala. 67, 39 So. 147; Bluett v. State, 151 Ala. 41, 44 So. 84; Sue v. State, 52 Tex. Cr. 122, 105 S. W. 804; State v. Doris, 51 Ore. 136, 94 Pac. 44, 16 L. R. A. (N. S.) 660n; State v. Jackman, 29 Nev. 403, 91 Pac. 143; Fleming v. State, 150 Ala. 19, 43 So. 219; State v. Hanlon, 38 Mont. 557, 100 Pac. 1035; Martin v. State, 144 Ala. 8, 40 So. 275; State v. Scaduto, 74 N. J. L. 289, 65 Atl. 908; Neathery v. People, 227 Ill. 110, 81 N. E. 16; State v. Turpin, 77 N. Car. 473, 480; State v. Abbott, 8 W. Va. 741, 759; State v. Gainor, 84 Iowa 209, 214, 50 N. W. 947; State v. Dodson, 4 Ore. 64, 68, 69; King v. State, 55 Ark. 604, 607, 19 S. W. 110; Lewis v. Commonwealth, 78 Va. 732, 735; Eiland v. State, 52 Ala. 322, 333; State v. Robertson, 30 La. Ann. 340, 341; Hawthorne v. State, 61 Miss. 749, 752;

95

Dickson v. State, 39 Ohio St. 73, 78; Wood v. State, 92 Ind. 269, 273-275; Pitman v. State, 22 Ark. 354, 357; Wallace v. United States, 162 U. S. 466, 40 L. ed. 1039, 16 Sup. Ct. 859; State v. Sullivan, 43 S. Car. 205, 21 S. E. 4; Grayson v. Commonwealth (Ky.), 35 S. W. 1035, 18 Ky. L. 205; Lester v. State, 37 Fla. 382, 20 So. 232; Henson v. State, 112 Ala. 41, 21 So. 79; Underhill on Ev., pp. 27 and 69.

93 Williams v. People, 54 Ill. 422, 423, 426; People v. Lee Chuck, 74 Cal. 30, 35, 36, 15 Pac. 322; State v. Hennessy, 29 Nev. 320, 90 Pac. 221; State v. Lindsay, 122 La. 375, 47 So. 687; Drane v. State, 92 Miss. 180, 45 So. 149.

State v. Abbott, 8 W. Va. 741, 759; State v. Powell, 5 Penn. (Del.) 24, 61 Atl. 966; Hammond v. State, 147 Ala. 79, 41 So. 761.

Steele v. State, 33 Fla. 348, 14 So. 841; State v. Spell, 38 La. Ann 20, 22; Moriarity v. State, 62 Miss 654, 661; Ball v. State, 29 Tex. App 107, 125, 14 S. W. 1012; Payne v

must be some overt act of violence on the part of the deceased sufficient to raise the issue of self-defense. The admissibility of threats usually depends on the fact that they were communicated to the accused before the homicide." But uncommunicated threats may be received to corroborate those communicated," and to show the mental condition of the deceased toward the accused where there is doubt who was the aggressor. Sometimes the former may be regarded as of the res gestæ, explaining some act already in evidence, as, for example, to show the mental state of the deceased when the question is, did he intend to harm the accused, and was he the attacking party in the affray during which he was killed? Uncommunicated threats are then relevant to show he provoked the affray, or to explain the intention with which he participated in it, or to illustrate the character of the attack. Evidence from the accused showing the communication State, 60 Ala. 80, 87; State v. Guy, Commonwealth (Ky.), 89 S. W. & 69 Mo. 430, 435; Hill v. State (Miss., 1894), 16 So. 901; People v. Lynch, 101 Cal. 229, 231, 35 Pac. 860; State v. Reed, 137 Mo. 125, 38 S. W. 574; State v. Nocton, 121 Mo. 537, 552, 26 S. W. 551; State v. Vaughan, 22 Nev. 285, 39 Pac. 733; State v. King, 47 La. Ann. 28, 16 So. 566; State v. Fontenot, 48 La. Ann. 305, 19 So. 111; State v. Barber, 13 Idaho 65, 88 Pac. 418; State v. Peace, 121 La. 107, 47 So. 28; Brooks v. State, 85 Ark. 376, 108 S. W. 205; Smith v. State, 142 Ala. 14, 39 So. 329; State v. Birks, 199 Mo. 263, 97 S. W. 578; Kirby v. State, 151 Ala. 66, 44 So. 38; Dunn v. State, 143 Ala. 67, 39 So. 147; Oates v. State, 156 Ala. 99, 47 So. 74; State v. Bouvy, 124 La. 1054, 50 So. 849; Reed v. State (Okla. Cr. App. 1909), 103 Pac. 1042.

28 Ky. L. 146; Neathery v. People, 227 Ill. 110, 81 N. E. 16; State v. Edwards, 203 Mo. 528, 102 S. W. 520: State v. Byrd, 121 N. Car. 684, 28 S. E. 353; State v. Thomas, III La. 804. 35 So. 914; State v. Nix, 111 La. 812, 35 So. 917; Commonwealth Thomas (Ky.), 104 S. W. 326, 31 Ky. L. 899; State v. Blee, 133 Iowa 725, 111 N. W. 19; State v. Davis, 123 La. 133, 48 So. 771.

V.

os State v. Downs, 91 Mo. 19, 25, 3 S. W. 219; People v. Travis, 56 Cal. 251, 253, 254; Stokes v. People, 53 N. Y. 164, 165, 13 Am. 492; Mayfield v. State, 110 Ind. 591, 594, 11 N. E. 618; Leverich v. State, 105 Ind. 277, 280, 4 N. E. 852; Martin v. State, 5 Ind. App. 453, 456, 32 N. E. 594: State v. Turpin, 77 N. Car. 473, 480, 24 Am. 455; Hart v. Commonwealth,

95a State v. Hanlon, 38 Mont. 557, 85 Ky. 77, 80, 2 S. W. 673, 8 Ky. L. 100 Pac. 1035.

714, 7 Am. St. 576; State v. Labuzan, 37 La. Ann. 489; Little v. State, 6 Baxt. (Tenn.) 491, 493; Dickson v. State, 39 Ohio St. 73, 76; State v. Faile, 43 S. Car. 52, 20 S. E. 798; Garner v. State, 28 Fla. 113, 9 So.