
    Mott v. State.
    [86 South. 514.
    No. 21519.]
    1. Homicide. Previous üncommunicated threats are admissible when doubtful who began difficulty.
    
    Evidence of previous uncommunciated threats is admissible in cases where it is doubtful who began the difficulty, as tending to solve the doubt.
    2. Homicide. Aggression is doubtful where evidence thereon is conflicting.
    
    The question as to who is the aggressor is doubtful in the meaning of this rule.- when there is a conflict of testimony upon that point.
    3. Homicide. Üncommunicated threat held admissible where deceas- > ea first hit defendant.
    
    Wnere the deceased, three days before the difficulty with appellant, stated that he would kill the appellant before the week was over if lie had to knock him in the head, and the testimony was conflicting as to who was the aggressor but shows úncontradictedly that deceased struck the first blow hitting appellant a very severe blow in the head with a cant hook, the testimony of this un communicated threat was material, and it was reversible error to exclude.
    4. Criminal Law. Only approved instructions slcould 6e requested.
    
    In homicide cases it is better 'practice for the state to request instructions that have been approved by this court and for as few as will clearly present the theory of the state.
    Appeal from circuit court of Newton county.
    Hon. A. J. McLain, Judge.
    Martin Mott was convicted of murder, and he appeals.
    Beversed and remanded.
    
      Byrd.d Byrcl, for appellant.
    To assist in determining who was the aggressor in a difficulty this court has always held, we think, that previous threats made by either party against the other aro admissible. The defendant introduced Mr. Garl Harris who testified, in the absence of the jury, as to a ¡previous threat made by deceased against defendant. But tliis testimony was excluded and not allowed to go to the jury. We respectfully submit that this ivas error. We call the court’s attention to the following authorities which, we think, are decisive of this point and which demonstrate that the court was in error in excluding the testimony: “The testimony of the witness Smith should not have been excluded. The fact that the deceased was trying to procure a pistol from him with which, as he in effect stated to another, he intended to kill deceased, was material in determining whether he or the defendant was the ag'gressor, in the difficulty in which he lost his life.” Lucas v. State, 67 So. 851 — latter part of the opinion.
    “But where death ensues from a conflict, and a question is raised by the evidence who was the aggressor, and whether the accused may not have acted in self-defense, recent threats may aid the jury in coming to a satisfactory conclusion. Such Are understand to be the reasonable rule, illustrated Avith more or less clearness, in the cases referred to.” Johnson v. State, 54 Miss. 430.
    “. . . and Weathersby testified that Bradley told him that the woman he was hunting for AAras a married woman, and remarked that there would be trouble if her husband, who Avas at Columbia, found out about their relations, and that he would either have to kill the husband or the husband would kill him. Though uncommunicated, the conversation related to the feeling Bradley had for Leverett, and avus threatening.”
    LikeAvise the testimony of Mrs. Leverett,, Avith reference to a conversation with Bradley over the telephone, which conversation was communicated to Leverett, was admissible for the same reason. Leverett v. State, 73 So. 273. And to the same effect are the folloAving cases: Gnice v. State, 6Ó Miss. 714; Hmvthorne v. State, 61 Miss. 749 ; Johnson v. Staifa, 66 Miss. 189; Wiggins Case, 93 U. S. 465.
    Wharton in his work on Criminal Law, section 1027, last Ed., says: “Where, the question is as to Avhat was the deceased’s attitude at the time of the fatal encounter, recent threats may become relevant to show that this attitude Avas one hostile to the defendant, even though such threats were not communicated to the defendant.
    Underhill on Criminal Evidence (second Ed.), section 326.
    
      W. M. Hemingway, assistant attorney-general, for the state.
    The exclusion of the threats, and the case it made out, was proper because there is not the slightest connection between the threats that were made and the occasion of this fuss and killing. If the threats had had any bearing on this case then, of course, they should have been admitted — even un communicated threats.
   Sykes, J.,

delivered, the opinion of the court. ■

Martin Mott Avas convicted of the murder of one Avery McCarty and sentenced to the penitentiary for life, from Avhich judgment this appeal is prosecuted.

The testimony in the case is conflicting. Three, eyewitnesses to the homicide testified for the state. According to the testimony of the two negro eyewitnesses to the killing, the appellant and the deceased began cursing each other and appellant told deceased that he was tired of playing and that — “The next son of a bitch that hits me I am going to stick my knife in him, and I don’t give a damn who it is.”

The appellant then opened his knife and went some distance away and got a drink of water, and was standing within about fifteen or twenty feet of the deceased when the deceased said to him: “If you make another God damn track tOAvard me with that knife, I will bust your God damn brains out, and he stepped this way and Avery hit him with a cant hook.”

The deceased then dropped the cant hook according to this witness and began backing back, and the appellant continued to advance on him with the open knife. The deceased stumbled and fell on his back, and the appellant stuck the knife in him. It is estimated that the deceased retreated backwards about fifteen feet.

The testimony of the next eyewitness is in substance like that above quoted, with the exception that he stated that the deceased after falling picked up a stick of some kind, called in the record a “slab,” and struck appellant just after appellant had stuck his knife in deceased. Both of these witnesses testified that the deceased struck the appellant with the cant hook as hard as he could, and it is shown by the record that a cant hook is a dangerous weapon.

The third eyewitness, a white man, testified for the state that the appellant asked the deceased to quit goosing him and that deceased replied he would goose him all he pleased, and that he (appellant) would have to take it, and called him a “yellow son of a hitch;” that appellant stated that he would not, and deceased then told appellant that if he made one step toward him th.¿t he would burst his brains out with the cant hook; that the appellant took a step but not toward the deceased, and that deceased then struck the appellant with the cant hook but did not knock him down; that when the. fuss first started between these two negroes the appellant had a knife out whittling; at that time the appellant showed no signs of being mad; that, after the deceased struck appellant with the cant hook, appellant advanced on deceased in a bent position, and the deceased dropped the cant hook and picked up a “slab” (the record does not disclose the size of this “slab”) ;■ that, after the deceased had stumbled and fallen, he, struck the appellant over the head with this “slab” about the time appellant stuck his knife in the deceased; and that he further struck the appellant a second blow with the “slab.” . Only one knife wound was inflicted upon the deceased. The appellant at. once got up and ran away from the scene of the difficulty.

According to the testimony of the two first eyewitnesses for the state, the jury would have been justified in believing that the appellant was the aggressor in the difficulty, while under the testimony of the third eyewitness for the state the deceased was the aggressor. And under this testimony the deceased had not abandoned the difficulty, but .merely dropped the cant hook and at once procured another weapon to continue the fray.

No eyewitnesses to the difficulty testified for the appellant. A number of Avitnesses testified that the general reputation for peace and violence of the appellant in the community in which he lived Avas good, and that of the deceased was bad. A physician testified that he examined the wounds on the appellant and found two contused and cut places on his head. The appellant offered to prove by a witness that a day or two before the homicide the deceased, Avery McCarty, came to his home and tried to get a pistol from him and told him that he wanted it to shoot the appellant. The witness declined to lend the deceased the pistol, and deceased then said:

“If I cannot get one in no way at all, I will kill him before this day week if I have to knock him in the head.”

This conversation occurred on Sunday, and the killing’ occurred the following Tuesday. The state objected to the introduction of this testimony, and the objection was sustained.

Prom the testimony it will be seen that this is a very close case upon the facts. If there were no error committed in the trial, we would be inclined to let the verdict stand, though we think that, under the testimony for the state to the effect that the appellant was .perhaps the aggressor in the actual fight, the evidence would better support a verdict of manslaughter than murder. The testimony, however, is in conflict as to who was the aggressor in the difficulty, and, this being true, the uncommunicated threat made by the deceased that he would kill the appellant before the Aveek was over even if he had to knock him in the head Avas very important and material testimony to be considered by the jury in determining avIio Avas the aggressor.

This question is ably discussed in the case of Johnson v. State, 54 Miss. 430. On page 433, the court says:

“The testimony under consideration is relevant and pertinent AA'here it may aid, as a circumstance, in determining, in connection Avith other facts, Avhether the homicide is excusable or not; as when the evidence fairly raises the question AAdiich was the aggressor. There the proof that the deceased had made serious threats., shortly before the rencounter, may be considered by the jury for the purpose just indicated.”

The same doctrine is reaffirmed in the case of Johnson v. State, 66 Miss. 189, 5 So. 95. In this opinion it is said:

“Evidence of previous uncommunicated threats is admissible in cases Avhere it is doubtful who began the difficulty, as tending to solve the doubt in favor of the accused by showing- a disposition by the deceased to make the attack. . . . When evidence has been offered tending to .prove that the deceased was the aggressor, then, though there may be a conflict of testimony on the point, evidence of previous (though uncommunicated) threats is to be admitted as supporting the other evidence” — citing numerous' authorities.

For the exclusion of this testimony the case, must be reversed.

Several of the instructions granted the state are also assigned as error. Some of these instructions are inartificially drawn. In homicide cases, it is always the safest course for the state to request instructions that have been approved by this court and for as few as will clearly present the theory of the state to the jury. As has several times been stated by this court, the beaten path is ahvays the safest path for the state to pursue in requesting instructions.

Reversed and remanded.  