
    No. 271.
    The State of Louisiana vs. Wilson Bowser.
    In a bill of exception, where there is variance in the statement of facts between counsel and the trial judge, the latter’s statement will be accepted.
    When the proper foundation has not been laid, evidence can not be received as to the prior acts, conduct or threats of the accused against the defendant.
    A difficulty, on the day previous to the homicide, with another person than the accused, is not admissible in evidence as a part of the res gestee.
    
    
      APPEAL from the Nineteenth District Court, Parish of St. Mary. Allen, J.
    
    
      J. Henry Shepherd, District Attorney, for the State, Appellee:
    1. The erasure of the Christian name and insertion of another as the name o£ defendant in an indictment is no cause for arresting judgment. State vs. Turner, 25 An. 573. The identification is all that is necessary, it matters not by what name the accused is known.
    2. The evidence upon which a motion for new trial was denied by the court below can not be considered on appeal, unless brought up by a bill of .exceptions. State vs. Given, 32 An. 782; State vs. Nelson, 32 An. 842; State vs. Belden, 35 An. 823; State vs. Miller, 36 An. 158; State vs. Redwine, 37 An. 780; State vs. Deas, 38 An. 581. The bill must set out the evidence to show the facts involved m the ruling. State vs. Nelson, 32 An. 842.
    3. The setting out in a motion for new trial what defendant’s counsel consider the proof does not answer the requirement; the evidence itself is what is needed.
    A difficulty on the day previous to a homicide with aperson other than the accused by the deceased is not admissible upon trial, and is not part of the res gesta. The deceased is not a party to the prosecution, and his utterances are hearsay to the same extent as those of any other third person. Bishop Or. Pro., Vol. 2, 623. If prosecutor is dead the evidence is lost. Bishop Or. L. 1082, Vol. 1.
    
      Todd & Todd and P. P. Sigur for Defendant and Appellant:
    1. Where it appears that deceased armed himself with a dangerous weapon and sought, by force, to enter the home of the accused at night, against the latter’s protest, and the accused slew him in the attempt, it is error to exclude from the jury evidence of a fuss the day before with the brother of the accused.
    2. Under the circumstances, the defendant has a right to show the jury, by pertinentfaets, what was the object of the assailant and his motive for the attack. Bisb. Crim. Pro., 3d Ed., Vol. 2, Secs. 610-618.
    3. In such an attack any lodger may interfere to prevent a felonious assault against a fellow inmate. So proof of a previous fuss with another inmate of the house would go to show the animus of the intruder and might serve to excuse his slayer if it should appear that a felony was intended by the former. Russell Crimes, Vol. 1, p. 602; Wharton on Homicide, 2d Ed., Secs. 542, 544, 546, 550; Wharton Crim. Law, Vol. 1, Secs. 508, 505, 493, 495, see 8th edition; Bishop Crim. Law, Vol. 1, Sec. 858 (7th edition).
   The opinion of the court was delivered by

McEnery, J.

The accused was indicted for the crime of murder, ■and convicted without capital punishment.

There are several defences urged, but only one is relied upon by the accused. The others are without merit, which we presume is ■the reason they are not mentioned or referred to in the brief of the counsel for the accused. As stated in their brief, the case comes up on one bill of exception. There is variance in the statement of the facts by the counsel and the trial judge. Following the invariable rule, we accept the statement of the latter. It is as follows: “ The witness, Robert McNally, a witness for the State, who said on examination in chief that he was acting as constable at the fair given at the house of the father of the prisoner, swore that he advised the deceased and Gilmore, who were entering the yard, not to come in.

‘ ‘ The District Attorney then asked the witness why he advised this. He replied there was a fuss the day before, which he saw. The District Attorney then said never mind about that fuss. Defendant’s attorney contended that all the circumstances of the fuss should be detailed. The District Attorney objected. The court ruled that the District Attorney could not be forced to ask the question that would bring out the details of the fuss; that the defendant had his right on cross-examination.

“On cross-examination defendant’s attorney asked the witness to detail the circumstances of the fuss, which he had said he saw the day before. The witness answered ‘ that the fuss was with the young man, the prisoner’s brother.’

“The District Attorney objected to the question, and contended that the foundation for the introduction of previous difficulties had not been made. Defendant contended that the foundation had been made. He contended that it was in proof that the deceased had come into the yard of the house occupied by the prisoner at night and, although halted by the accused, was advancing toward the house with a pair of brass knuckles, which were afterward found in his hand when he was shot.

“ The court ruled that without binding the court and without deciding whether or not the foundation for the introduction of the evidence of previous acts of violence by the deceased toward the prisoner was made, that the evidence as given by the witnesses in answer to the question was not admissible, because it showed a difficulty, not with the prisoner, but with another person.”

In order to mitigate, to excuse the homicide on the ground of self-defence on passion, the prior conduct, threats or other utterances of the deceased party in the special instance may be given in evidence, not simply to show that the deceased was bad, but, in the particular case, he was dangerous; and it so appeared to the accused. But what was unknown to the defendant can not thus be shown, because he could not have acted upon it.

In the instant case the course of the examination necessarily led to the mental condition of the defendant which prompted the homicide. What he knew was therefore only relevant. What he did not know could not have influenced his mind. Bishop on Orim. Pro., Vol. 2, pars. 610, 611, 613, 619, 620.

It does not appear from the record that any foundation was laid for the introduction of evidence as to the prior acts, conduct or threats of the deceased against the defendant. There are no facts brought up in the bill of exception to show that the deceased made threats against the defendant, which were communicated to him, and that he attacked the defendant or committed any overt act to carry out the threats so communicated. The “fuss” referred to by the witness McNally was not with the accused, but a third party, and is not a part of the res gestae, and is therefore not admissible upon the trial.

Judgment affirmed.  