
    State v. George Atkins.
    October Term, 1904.
    Present: Rowell, C. J., Tyler, Munson, Start, Watson, Haselton, and Powers, JJ.
    Opinion filed January 26, 1905.
    
      Criminal Law — Breach of the Peace — By Assault — Evidence — Threats—Of Respondent — Of Prosecuting Witness.
    
    In a prosecution for a breach of the peace by intentionally driving a wagon against the carriage in which a woman was riding, whereby she was thrown out and injured, threats made by the respondent, prior to the collision, to the effect that he would some day run into her, are admissible against him.
    In a prosecution for a breach of the peace by intentionally driving a wagon against the carriage in which a woman was riding, whereby she was thrown out and injured, when she testifies in behalf of the State, and the respondent’s evidence tends to show that she intentionally ran her carriage against respondent’s wagon in order to injure liim, it is error for the court to exclude evidence of threats of violence made by her against him before the collision.
    In such case evidence of prior threats of the prosecuting witness against the respondent are admissible, both as evidence in chief, and as affecting the credibility of said witness.
    Information for breach of the peace. Plea, not guilty. Trial by jury at the March Term, 1904, Washington County, Stafford, J., presiding. Verdict, guilty; judgment and sentence thereon.
    The respondent excepted.
    The evidence of threats which the respondent offered to show were made by the .prosecuting witness, were all made before the collision.
    By one witness respondent offered to show that the prosecuting witness said: “I keep that (referring to a revolver in her hand) for old George Atkins, and he will get the contents of it;” by another witness, that when the prosecuting witness was asked what she had a certain club for, she replied, “I have got that club to beat George Atkins’ brains out, if he tries to run into me;” and by another witness, that the prosecuting witness said: “And your friend Atkins is coming. Yes, he is coming, and if I could have got by him, I would have driven through him.”
    
      Gordon & Jackson, and T. R. Gordon for the respondent.
    The evidence of the threats of the prosecuting witness should have been received. Whart. Cr. B. § 642; Stokes v. People, 53 N. Y. 164; State v. Turpin, 77 N. C. 473; Murphy v. Dart, 42 How. 31; Campbell v. People, 16 111. 17; People v. Scoggins, 37 Cal, 696-704; Holler v. State, 37 Ind. 57; State v. Harrod, 102 Mo. 590, 609.
    
      
      John H. Senter, State’s Attorney, for the State.
    Evidence of the threats of the prosecuting witness is inadmissible. State v. Skidmore, 87 N. C. 512; Whart. Cr. E. § 757-
   Watson, J.

The respondent was trjed for a breach of the peace and found guilty. The breach of the peace claimed by the State was that the respondent intentionally drove his wagon against the carriage in which Mrs. Hattie Matthews, the prosecuting witness, was riding in the public highway, whereby she was thrown out and injured. The respondent’s evidence tended to show that Mrs. Matthews was responsible for the collision, and that she intentionally ran against the respondent’s wagon to do him- injury, or that on account .of the conduct of her horse, and her fast and careless way of driving it, she ran into the respondent’s wagon, and that he was not in any way guilty of the offence charged. The respondent claimed that as far as he was concerned the collision was a pure accident, and he disclaimed having acted in self-defence.

The State was permitted to show, subject to> exception, that the respondent on an occasion when he was passing Mrs. Matthews prior to the time of the alleged offence, made a threat -against her to the effect that he would some day run into- her. This evidence was properly received. Prior threats of an accused are relevant as showing his mental attitude toward the prosecuting witness at the time of the assault, unless after the making of the threats and before the assault, the parties become friends. State v. Heun, 39 Minn. 476; La Beau v. People, 34 N. Y. 223. Such threats are also evidence tending to make it more probable that the accused committed the act complained of. Whart. Cr. Ev. § 756; Stokes v. People, 53 N. Y. 164; State v. Bradley, 64 Vt. 466, 24 Atl. 1053.

The respondent offered evidence of threats of violence made against him by the prosecuting witness on several different occasions previous to the collision, as showing her animosity toward him, and as tending to show that she was the aggressor, and also that she intended to run into him. This evidence was excluded, to which respondent excepted. When the respondent’s evidence tends to show that the, prosecuting witness was the sole aggressor, evidence of such threats is admissible upon the same principles and for the same purposes as above indicated regarding threats made by the respondent, and its exclusion was error. Stokes v. People, before cited; Leverich v. State, 105 Ind. 277; Whart. Cr. Ev. § 757. The evidence was also legitimate as affecting the credibility of the witness. Pierce v. Gilson, 9 Vt. 216; State v. Goodrich, 19 Vt. 116.

Judgment and sentence of the county court reversed, and cause remanded for a new trial.  