to him of a threat does not permit him to testify that he then said he had never injured the deceased and intended to avoid trouble with him." A witness, called to prove threats, may state his reply thereto as a part of the res gesta. 100 But he cannot be allowed to 1 express an opinion that the threats have been carried into execution. That question is for the determination of the jury.1 Evidence to prove threats must tend directly to show an intention to injure the accused by violence. A statement by the deceased that he is prejudiced against the accused is not a threat. In conclusion it may be said that declarations of peaceful intent by the deceased communicated to the accused are competent to rebut evidence of previous threats by the deceased.3

§ 327. Evidence to prove the peaceable character of the accused.— The rules regulating evidence of character in criminal cases are applicable. The state cannot attack the character of the defendant in the first instance, though it may do so after he has sought to prove his good character. An accused person may always offer evidence of his reputation, as a quiet, peaceable and inoffensive man wherever the fact that he committed the homicide, or, if he admits that he did commit it, the criminal intent, is in doubt upon the whole evidence. The state must not be permitted to intro

835, 29 Am. St. 232; Brown v. State, 55 Ark. 593, 603, 18 S. W. 1051; State v. Helm, 92 Iowa 540, 61 N. W. 246; State v. Cushing, 14 Wash. 527, 45 Pac. 145, 53 Am. St. 883; Wiggins v. Utah, 93 U. S. 465, 23 L. ed. 941; Campbell v. People, 16 Ill. 17, 61 Am. Dec. 49n; Prine v. State, 73 Miss. 838, 19 So. 711; Newton v. Commonwealth (Ky.), 102 S. W. 254, 31 Ky. L. 327; Hargis v. Commonwealth (Ky., 1909), 123 S. W.

239.

90

State v. Lodge, 9 Houst. (Del.) 542, 33 Atl. 312; People v. Smith (Cal. App.), 99 Pac. 1111; Sims v. State, 38 Tex. Cr. 637, 44 S. W. 522; State v. Richardson, 194 Mo. 326, 92 S. W. 649; State v. Frederickson, 81 Kan. 854, 106 Pac. 1061. The state may introduce evidence of the bad reputation of the accused in rebuttal where he attempts to justify the

Angus v. State, 29 Tex. App. 52, homicide on the ground that the de14 S. W. 443. ceased was attempting to ruin his

100 People v. Palmer, 105 Mich. 568, daughter and he was protecting her.

* State v. Wyse, 33 S. Car. 582, 594, 576, 21 S. W. 680; Walker v. State, 12 S. E. 556.

102 Ind. 502, 506, 1 N. E. 856; State

duce evidence of the bad disposition of the accused as distinguished from his reputation, nor may it show that he possessed a nervous temperament, was excitable and eccentric, or likely to resent in a violent manner an indecent and insulting message, or that he has been guilty of particular acts of bad conduct. All such evidence is equally irrelevant to show guilt.

§ 328. Threats by the accused-General nature of these threats.— Evidence of threats made by the accused, or by a co-defendant in the presence of the accused, or, if in his absence, subsequent to the date when a conspiracy existed," prior to the killing, is always relevant to show malice, or, when made long before, to show deliberation and premeditation.10 It is immaterial that the threats

Commonwealth v. Cleary, 148 Pa. Riggs v. State, 30 Miss. 635; Nichols St. 26, 23 Atl. 1110.

were not directed against the deceased individually," as where they were made against a railroad company by which the deceased was employed,12 or against "anyone who hits A,"13 against a family by name,1 or a class of men,15 as policemen,16 or nonunion men, to which class the deceased belong," or against any

Commonwealth (Ky.), 33 S. W. 823, 17 Ky. L. 1139; State v. Pain, 48 La. Ann. 311, 19 So. 138; Linehan v. State, 113 Ala. 70, 21 So. 497; McI Daniel v. State, 100 Ga. 67, 27 S. E. 158; Underhill on Ev., §§ 5, 9, 52; Morris v. State, 50 Tex. Cr. 515, 98 S. W. 873; State v. Feeley, 194 Mo. 300, 92 S. W. 663, 112 Am. St. 511, 3 L. R. A. (N. S.) 351n; State v. King, 203 Mo. 560, 102 S. W. 515; Golatt v. State, 130 Ga. 18, 60 S. E. 107; State v. Rideau, 116 La. 245, 40 So. 691; Washington v. State, 46 Tex. Cr. 184, 79 S. W. 811; People v. Gaimari, 176 N. Y. 84, 68 N. E. 112; State v. Fielding, 135 Iowa 255, 112 N. W. 539; Owen v. State, 52 Tex. Cr. 65, 105 S. W. 513: Tipton v. State, 140 Ala. 39, 37 So. 231; Wheeler v. Commonwealth, 120 Ky. 697, 87 S. W. 1106, 27 Ky. L. 1090; Miller v. State, 40 So. 342, 146 Ala. 686, not reported in full; Glenn v. State, 157 Ala. 12, 47 So. 1034; Bluett v. State, 151 Ala. 41, 44 So. 84; Powers v. Commonwealth (Ky.), 92 S. W. 975, 29 Ky. L. 277; State v. Allen, 11 La. 154, 35 So. 495; State v. Stratford, 149 N. Car. 483, 62 S. E. 882; State v. Thompson, 127 Iowa 440, 103 N. W. 377; Graham v. State, 125 Ga. 48, 53 S. E. 816; Johns v. State, 46 Fla. 153, 35 So. 71; Jarvis v. State, 138 Ala. 17, 34 So. 1025; State v. Demming, 79 Kan. 526, 100 Pac. 285; Blocker v. State, 55 Tex. Cr. 30, 114 S. W. 814; State v. McKellar (S. Car., 1910), 67 S. E. 314; Singleton v. State (Tex. Cr. App. 1909), 124 S. W. 92.

37-UNDERHILL CRIM. EV.

11 Benedict v. State, 14 Wis. 423, 426; Harrison v. State, 79 Ala. 29; State v. Harlan, 130 Mo. 381, 407, 32 S. W. 997; State v. Hymer, 15 Nev. 49; State v. Hoyt, 47 Conn. 518, 36 Am. 89n; Friday v. State (Tex. Cr.), 79 S. W. 815; Starr v. State, 160 Ind. 661, 67 N. E. 527; McMahon v. State, 46 Tex. Cr. 540, 81 S. W. 296; State v. Exum, 138 N. Car. 599, 50 S. E. 283; Bateson v. State, 46 Tex. Cr. 34, 80 S. W. 88; Holland v. State 55 Tex. Cr. 27, 115 S. W. 48; Williams v. State, 147 Ala. 10, 41 So. 992; Hixon v. State, 130 Ga. 479, 61 S. E. 14; Hardy v. Commonwealth (Va., 1910), 67 S. E. 522.

12

Newton v. State, 92 Ala. 33, 36, 9

So. 404.

13

14

Jordan. State, 79 Ala. 9, 12.

People v. Craig, 111 Cal. 460, 44 Pac. 186; State v. Belton, 24 S. Car. 185, 187, 190, 58 Am. 245; Hobbs v. State, 86 Ark. 360, 111 S. W. 264; Morris v. State, 146 Ala, 66, 41 So. 274; George v. State, 145 Ala. 41, 40 So. 961, 117 Am. St. 17; People v. Owen, 154 Mich. 571, 118 N. W. 590, 15 Det. Leg. N. 881, 21 L. R. A. (N. S.) 520.

15 State v. Davis, 6 Idaho 159, 53 Pac. 678; Commonwealth v. Lamtampa, 226 Pa. 23, 74 Atl. 736.

16 Dixon v. State, 13 Fla. 636, 645; Whittaker v. Commonwealth (Ky.), 17 S. W. 358, 13 Ky. L. 504; State v. Grant, 79 Mo. 113, 49 Am. 218.

17 State v. Bailey, 190 Mo. 257, 88 S. W. 733. See State v. Cochran, 147 Mo. 504, 49 S. W. 558, where accused said he would like to kill a

man whose attentions should be received by the woman with whom he was intimate,1s and one member only of the class or family is slain by the accused. Under certain circumstances the vague and uncertain threats of the accused may be shown to prove the condition of his mind at the time of the crime. This rule. is applied to his declarations that he is going to kill somebody without mentioning any names or that he is going to make trouble or that he is going to shoot someone or similar indefinite threats which indicate that he is in an ugly frame of mind and disposed to commit some crime though not the particular crime for which he is on trial.1 When, however, it clearly appears that the accused and the deceased were acquainted, and had always been friends down to the homicide, general threats by the accused are incompetent.20 So, too, a specific threat directed against one person by name is not relevant on a trial for the homicide of another, unless, perhaps, when the threat has been executed and the motive for the killing of both persons was the same. 22

21

§ 329. Form, character and mode of proving threats.-The relevancy of threats depends largely upon the light they shed upon previous malice or premeditation. Hence their remoteness in time is no objection to their reception,23 though it may, and indeed

Grand Army man and the deceased was not a Grand Army man.

18 Brown v. State, 105 Ind. 385, 392; Garrett v. State, 52 Tex. Cr. 255, 106 S. W. 389; Cardwell v. Commonwealth (Ky.), 46 S. W. 705, 20 Ky. L. 496.

19 State v. Brown, 188 Mo. 451, 87 S. W. 519; Helvenston v. State, 53 Tex. Cr. 636, 111 S. W. 959; Burton v. State, 115 Ala. 1, 22 So. 585.

20 State v. Crabtree, III Mo. 136, 20 S. W. 7; State v. McGreevey (Idaho, 1909), 105 Pac. 1047.

105, 11 S. E. 814; State v. McCahill, 72 Iowa 111, 33 N. W. 599; State v. Compagnet, 48 La. Ann. 1470, 21 So. 46; Bradley v. State (Tex. Cr.), III S. W. 733; Stafford v. State, 50 Fla. 134, 39 So. 106; Sprouse v. Commonwealth (Ky., 1909), 116 S. W. 344.

23

Jefferds v. People, 5 Park. Cr. (N. Y.) 522 (two years); Redd v. State, 68 Ala. 492; Everett v. State, 62 Ga. 65; State v. Campbell, 35 S. Car. 28, 32, 14 S. E. 292; Goodwin v. State, 96 Ind. 550, 552; Graham v. State, 125 Ga. 48, 53 S. E. 816; State v. Schuyler, 75 N. J. L. 487. 68 Atl. 56; People v. Johnson, 185 N. Y. 219, 77 N. E. 1164; State v. Demming, 79 Kan. 526, 100 Pac. 285; Rush v. State (Tex. Cr., 1907), 76 S. W. 927; Ward v. Commonwealth 22 Woolfolk v. State, 85 Ga. 69, 104, (Ky.), 91 S. W. 700, 29 Ky. L. 62;

21 Carr v. State, 23 Neb. 749, 761, 37 N. W. 630; Abernethy v. Commonwealth, 101 Pa. St. 322, 330; People v. Bezy, 67 Cal. 223, 7 Pac. 643; Clarke v. State, 78 Ala. 474, 56 Am. 45.

24

must, be considered in determining their weight as evidence of existing intent. For it is manifest that a threat made long prior to the commission of a homicide may indicate that it was the culmination and outcome of long-continued rancor rather than the result of a sudden and momentary outburst of passion,25 while the fact that a threat is unrepeated and unexecuted for many years may indicate that the feelings of hatred or revenge have died out. The language used need not be specific as regards the means by which,27 or as to the time, place or manner in which, violence is to be inflicted. It is for the court to say whether the utterance of the defendant imports a threat, and the cases go very far in admitting as a threat any declaration which indicates, however vaguely and indefinitely, an intention on the part of the accused to inflict violence upon the deceased. 28 Nor is it material that the killing was accomplished by the use of means which differ widely from those mentioned in the threat.29 It is not necessary that the witness should be able to relate the whole conversation of which the threat formed a part,30 or that the threat should have been uttered in his presence, or to him, or that he should have recognized the defendant's voice, if the evidence shows that the accused and the deceased were so situated, as respects the witness, that he must have heard all that was said,31 as when he overhears threats made by the deceased, who, while intoxicated and alone, was talking to himself.32 It is always

27 Schoolcraft v. People, 117 Ill. 271, 7 N. E. 649.

29 Drake v. State, 110 Ala. 9, 20 So. 450. In this case the defendant said to the deceased, "I will see you later."

"La Beau v. People, 34 N. Y. 223,

229.

30 State v. Oliver, 43 La. Ann. 1003, 10 So. 201; People v. Dice, 120 Cal. 189, 52 Pac. 477; Woodward v. State, 50 Tex. Cr. 294, 97 S. W. 499; State v. Benjamin (R. I., 1908), 71 Atl. 65.

31 Short v. Commonwealth (Ky.), 4 S. W. 810, 811, 9 Ky. L. 255; State v. Gilliam, 66 S. Car. 419, 45 S. E. 6. 32 Smith v. Commonwealth (Ky.), 4 S. W. 798, 799, 9 Ky. L. 215.