ON REHEARING. Appellant insists that his brief is sufficient to present the question raised by his third, fourth, fifth, sixth, seventh, and eighth reasons for a new trial. These reasons relate to 5. evidence offered by the state in rebuttal and admitted by the court over the objection of appellant, that the general reputation of the deceased for peace and quietude in the neighborhood where he lived at the time of the alleged homicide, was good.
Appellant contends that such evidence is inadmissible without his consent.
We think the evidence competent and material. Appellant testified in his own behalf and claimed that the deceased made an attack upon him. That he was standing in the doorway with his gun standing beside him, and as soon as the deceased observed his presence, he made the remark, "There is the s of b" and raised his gun and shot appellant. This is a direct attack upon the character of the deceased and put his reputation for peace and quietude in issue. While appellant's defense was not self defense, yet he charged the deceased as *Page 686 being the aggressor and making the assault upon him. There is evidence in the record that appellant and the deceased were the only persons in the house at the time of the alleged crime. It was a question for the jury to determine whether appellant was guilty of the crime charged. One of the questions the jury had to determine was whether the deceased made the attack upon appellant as testified to by appellant. It was said in the case ofThrawley v. State (1899), 153 Ind. 375-383, 55 N.E. 95:
"But in negation of appellant's evidence tending to show that deceased was the only person in fault, it is claimed that deceased's character for peace can not be considered without appellant's consent. If, in determining the question, Was appellant in fault? his good character for peace would be evidence of such quality as to be admissible as disproof, so deceased's good character for peace was evidence of such quality as to be admissible as disproof of the charge against him. The character for peace of each of them was presumed to be good in the absence of evidence. But the evidence of the State in support of the charge against appellant was such an attack upon his character for peace as to authorize him to introduce his good character as a substantive fact, involved in the transaction, in disproof of the charge, without the State's consent. So the evidence of appellant in support of the charge against deceased was such an attack upon his character for peace as to authorize the State to introduce his good character as a substantive fact, involved in the transaction, in disproof of the charge, without appellant's consent."
The court further said (p. 385):
"However, in the case of Fields v. State (1892), 134 Ind. 46, the record shows that the defense offered no impeaching testimony to attack the character of the deceased for peaceableness. Defendant claimed that the killing was done in self-defense in mutual combat. On rebuttal the State introduced reputation witnesses to prove the good character of the deceased for peaceableness. Fields squarely *Page 687 raised the very question presented by Thrawley; and the court said: `The defendant testified that the deceased assaulted him and that he apprehended great injury to life or limb from the assault. On rebuttal the court permitted the State to prove that the deceased was a peaceable, quiet man. This was not erroneous.'"
We think the fact that appellant did not admit that he killed the deceased, and claim that the killing was done in self-defense does not change the rule under the facts in this case. We think the reason for the rule holding such evidence competent in the above cited cases, applies to the facts in this case. There was no error in the admission of this evidence.
Motion for a rehearing denied.