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is in doubt, and particularly if the evidence is wholly circumstantial, the threats of a third person, not shown to have been connected with the crime, may be received. The names of the persons and the circumstances attending the threats must be stated."1 The defendant may prove threats against the deceased made by a witness who, testifying as an accomplice, alleges he was instigated by defendant to commit the crime to show that the witness was actuated by personal motives involving malicious intent.72

§ 333. Animosity between the accused and the deceased.-Where the existence of present malice or premeditation is in issue, evidence of previous quarrels or difficulties between the accused and the deceased is always received if the parties have not become completely and permanently reconciled. Thus, evidence that the

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Murphy v. State, 36 Tex. Cr. 24, 35 S. W. 174; Commonwealth v. Abbott, 130 Mass. 472, 476; State v. Hawley, 63 Conn. 47, 27 Atl. 417; Alexander v. United States, 138 U. S. 353, 34 L. ed. 954, 11 Sup. Ct. 350; Pollard v. State (Tex. Cr. App. 1910), 125 S. W. 390.

"State v. Johnson, 31 La. Ann. 368; Pace v. Commonwealth (Ky.), 37 S. W. 948, 18 Ky. L. 690. It is improper to admit evidence that some third person had a motive to kill deceased and was near the scene of the crime where such third person is in no wise connected with the crime by other evidence. Walker v. State, 139 Ala. 56, 35 So. 1011.

Marler v. State, 67 Ala. 55, 66, 42 Am. 95; Sanford v. State, 143 Ala. 78, 39 So. 370.

Nicholas v. Commonwealth, 91 Va. 741, 21 S. E. 364, 366; State v. Pennington, 124 Mo. 388, 27 S. W. 1106; State v. Rash, 12 Ired. (N. Car.) 382, 55 Am. Dec. 420; State v. Pike, 65 Me. III; State v. Petsch, 43 S. Car. 132, 20 S. E. 993; State v. Crafton, 89 Iowa 109, 56 N. W. 257; McBride v. People, 5 Colo. App. 91, 37 Pac. 953; People v. M'Kay, 122

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Cal. 628, 55 Pac. 594; State v. Coleman, 111 La. 303, 35 So. 560; State v. Brooks, 79 S. Car. 144, 60 S. E. 518, 128 Am. St. 836, 17 L. R. A. (N. S.) 483; Pratt v. State, 53 Tex. Cr. 281, 109 S. W. 138; Waters v. State, 54 Tex. Cr. 322, 114 S. W. 628; State v. Churchill, 52 Wash. 210, 100 Pac. 309; State v. Clark, 119 La. 733, 44 So. 449; State v. Baudoin, 115 La. 837, 40 So. 239; State v. Exum, 138 N. Car. 599, 50 S. E. 283; Shirley v. State, 144 Ala. 35, 40 So. 269; People v. Williamson, 6 Cal. App. 336, 92 Pac. 313; Sylvester v. State, 46 Fla. 166, 35 So. 142; Gallegos v. State, 48 Tex. Cr. 58, 85 S. W. 1150; Sanderson v. State, 169 Ind. 301, 82 N. E. 525; People v. Dinser, 49 Misc. (N. Y.) 82, 98 N. Y. S. 314; Spencer v. Commonwealth (Ky.), 107 S. W. 342, 32 Ky. L. 880. The rule of the text is applicable to a prosecution for assault with intent to murder. Ellis v. State, 120 Ala. 333, 25 So. 1; Barnett v. State (Ala., 1909), 51 So. 299; State v. Butler (Iowa, 1910), 125 N. W. 196.

Tidwell v. State, 70 Ala. 33, 46; Early v. State, 51 Tex. Cr. 382, 103

accused had frequently quarreled with, brutally beaten and threatened to kill his wife, with whose murder he is charged, or had made remarks reflecting on her character," is competent to enable the jury to determine whether malice was present. The fact that these marital bickerings cover a period of years and continue down to the death, strengthens this evidence. This evidence is received for the same reason that previous threats by any person are admissible. It tends to show the existence of animosity between the parties, and its relevancy results from the fact that the existence of prior ill-feeling not only renders the commission of the crime more probable, but tends to show the malice or premeditation of the accused.78 It is immaterial how remote in time the hostile acts were, as far as the competency of the evidence is concerned, nor can the details of the previous difficulty be proved to show which party was in the wrong. 80

Evidence of prior ill-feeling between the defendant and the deceased is admissible in favor of the former as well as against him. This is the case where a plea of provocation or self-defense is made and the evidence is contradictory as to whom was the aggressor. The prosecution may prove that when a third person

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3 Greenl. Ev., § 145; Koerner v. State, 98 Ind. 7, 25; State v. O'Neil, 51 Kan. 651, 665, 33 Pac. 287, 24 L. R. A. 555; McCann v. People, 3 Park. Cr. (N. Y.) 272; Sayres v. Commonwealth, 88 Pa. St. 291; State v. Bradley, 67 Vt. 465, 32 Atl. 238; Phillips v. State, 62 Ark. 119, 34 S. W. 539; Thiede v. Utah Territory, 159 U. S. 510, 40 L. ed. 237, 16 Sup. Ct. 62.

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People v. Thomson, 92 Cal. 506, 512, 28 Pac. 589; Gordon v. State, 140 Ala. 29, 36 So. 1009; Logan v. State, 149 Ala. 11, 43 So. 10; Patterson v. State, 156 Ala. 62, 47 So. 52; Stallworth v. State, 146 Ala. 8, 41 So. 184; Thompson v. State, 84 Miss. 758, 36 So. 389; State v. Birks, 199 Mo. 263, 97 S. W. 578; Jay v. State, 52 Tex. Cr. 567, 109 S. W. 131; Bluett v. State, 151 Ala. 41, 44 So. 84.

81 Coxwell v. State, 66 Ga. 309, 313;

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│attempted to make peace between the deceased and the accused that the latter refused to settle the trouble amicably and said he would not accept an apology from the deceased. 82

§ 334. Expert and non-expert evidence as regards blood stains.— All persons are more or less familiar with the appearance of stains caused by blood. It has, therefore, been repeatedly held from time immemorial that ordinary witnesses may testify that certain stains on clothing or other articles "look like" or resemble blood stains. A non-expert may state that he saw stains and describe their color, or that garments "looked like the blood had been washed off." No peculiar skill or experience is required to be possessed by a witness who saw the stains in court or elsewhere to render his evidence admissible, nor need a chemical analysis, or test, or a microscopical examination have been made. 85

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The testimony of a witness that he recognized blood stains on an article which he has seen is not secondary evidence, compared with the opinion of a chemist, based solely on an analysis," though the opinion of the expert witness may be received with more confidence in the minds of the jury. Though any witness may testify that a stain looks like a blood stain, only a skilled physician or microscopist should be permitted to give an opinion, after analysis, on the question, was the stain in question caused

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Wellar v. People, 30 Mich. 16; Gun- Walker v. State, 153 Ala. 31, 45 ter v. State, III Ala. 23, 20 So. 632, So. 640. 56 Am. St. 17; People v. Hecker, 109 Cal. 451, 42 Pac. 307, 30 L. R. A. 403; Stewart v. State, 78 Ala. 436; State v. Cooper, 32 La. Ann. 1084; McMeen v. Commonwealth, 114 Pa. St. 300, 9 Atl. 878; Marnoch v. State, 7 Tex. App. 269, 272 (to explain why defendant went armed to the place where he met deceased); State v. Seymour, 94 Iowa 699, 63 N. W. 661; Austin v. Commonwealth (Ky.), 40 S. W. 905, 19 Ky. L. 474.

People v. Gonzalez, 35 N. Y. 49, 61; State v. Bradley, 67 Vt. 465, 32 Atl. 238; State v. Welch, 36 W. Va. 690, 15 S. E. 419; Thomas v. State, 67 Ga. 460, 464; McLain v. Commonwealth, 99 Pa. St. 86, 100; Greenfield v. People, 85 N. Y. 75, 83, 39 Am. 636; Dillard v. State, 58 Miss. 368; People v. Deacons, 109 N. Y. 374, 382, 16 N. E. 676; People v. Smith, 106 Cal. 73, 39 Pac. 40.

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People v. Gonzalez, 35 N. Y. 49, Pettis v. State, 47 Tex. Cr. 66, 81 61. A piece of board cut from the S. W. 312.

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floor of a room in which a homicide was committed is admissible to show the stains. State v Martin, 47 S. Car. 67, 25 S. E. 113.

by the blood of a human being or by that of other animals?** Evidence that there was a great effusion of blood may be admissible to show the nature of the wound.88 A fatal blow with a heavy blunt instrument produces little effusion of blood, while a cut or a stab with a sword or knife will cause an outpouring that may spatter with blood every person and object in the vicinity. Evidence that the clothing of the accused was spattered with blood is relevant, and may justify a strong inference that he is guilty. On the other hand, the absence of such stains is not relevant, and usually would have no force as indicating inno

The accused may have removed the incriminating marks or, even in the case of homicide by cutting, may have inflicted the wound in such a way that no blood was spattered on him.

The direction and form of blood stains on doors, walls or furniture is relevant to show the position of the deceased when he was killed. So the position of such stains on the clothing of deceased may be relevant to show whether he was standing or reclining when the fatal blow was received.

87 People v. Bell, 49 Cal. 485; Commonwealth v. Dorsey, 103 Mass. 412, 420; Gaines v. Commonwealth, 50 Pa. St. 319; State v. Knight, 43 Me. 11; Lindsay v. People, 63 N. Y. 143; State v. Miller, 9 Houst. (Del.) 564, 32 Atl. 137; State v. Alton, 105 Minn. 410, 117 N. W. 617. In State v. Knight, 43 Me. 11, pp. 19-25, will be found fully reported the language of an expert chemist who had made a chemical and microscopical examination of blood stains, detailing in full the methods of examination, the facts observed and the results achieved. Sime microscopists affirm that it is easy to recognize human blood by the size and shape of the corpuscles. The more recent and, perhaps, better opinion is, that "while a skillful expert can, with certainty, distinguish between human blood corpuscles and those of the blood of a cow, pig or other domestic animals with which it

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would be likely to be confounded, still, in a murder trial, where human life is at stake, the expert is hardly warranted to swear that the blood stain is any more than that of an animal." See Reese Med. Jurisprudence, p. 132 (2d ed.), 1889; Beale's Microscope in Medicine, 4th ed., p. 266, 10 Cent. Law Jour. (Feb., 1880) 183, and the remarks of the court in pointing out with what caution such expert evidence should be received. State v. Miller, 9 Houst. (Del.) 564, 32 Atl. 137.

8 O'Mara v. Commonwealth, 75 Pa. St. 424.

Richardson v. State, 7 Tex. App. 486, 492; Wilson v. United States, 162 U. S. 613, 40 L. ed. 1090, 16 Sup. Ct. 895; Jackson v. Commonwealth, 100 Ky. 239, 38 S. W. 422, 1091, 18 Ky. L. 795, 66 Am. St. 336; Hinshaw v. State, 147 Ind. 334, 47 N. E. 157.

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§ 335. Conspiracy to commit homicide.-If the homicide is the result of a conspiracy the acts or declarations of any one of the conspirators are binding upon his criminal associates if made during the existence of the conspiracy and in furtherance of its object.00

$336. Preparation to commit homicide.-Evidence of preparation to commit a homicide, or of attempts to prepare for its commission, is always relevant. It may be shown that the accused was armed shortly before the commission of the crime." It is always relevant to show that the defendant at or immediately before the date of the crime had in his possession the means for its commission. It may be shown that a few days before the crime he bought shells for use in his gun where similar shells were found near the scene of the crime." It may also be proved that a third person purchased cartridges a short time before the crime if there is evidence of a conspiracy between the purchaser and the accused. And such evidence is competent, it seems, even where the purchaser was present at the commission of the

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* See §§ 492, 493; State v. McCahill, 72 Iowa III. This rule is well illustrated in Spies v. People, 122 Ill. 1, 12 N. E. 865, 17 N. E. 898, 3 Am. St. 320n, commonly called the "Anarchists' Case." Here it appeared from the evidence that an illegal association had been formed, having for its object the overturning of government and the abolition of law. It was proved that certain newspapers and a book entitled the "Science of Revolutionary Warfare," advocating these views and pointing out how they might be advanced and the purposes of the society accomplished by the use of dynamite bombs and other violent means, were read and circulated by members of the association and approved by its officials. It was also shown that the speakers of the association had, at its meetings, used language inciting their hearers to as

sault policemen and to commit riot and murder. Upon murder resulting from the conspiracy, these written and spoken declarations were held binding upon all members of the association. Evidence in prosecution for homicide in carrying out unlawful conspiracy, 68 L. R. A. 215, note.

91 Way v. State (Ala., 1908), 46 So. 273; Ferguson v. State, 141 Ala. 20, 37 So. 448; People v. Sutherland, 154 N. Y. 345, 48 N. E. 518. The accused cannot offer evidence to show his "uncommunicated intention" in thus arming himself. Dean v. State, 105 Ala. 21, 17 So. 28, 29. Cf. Gilcrease v. State, 33 Tex. Cr. 619, 28 S. W. 531.

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