The controlling issue of fact in this case is whether or not the deceased reached toward the bib of his overalls for a pistol imediately before he was shot by the accused.
The killing occurred when the deceased stopped his truck in the street in front of the defendants home to get his wife and children so as to take them home, and after his wife and children had already gotten in the truck to go home with him after their visit there during the day. *Page 745
There is no issue raised in the evidence as to who was the aggressor in what transpired on that occasion. The defendant admitted that he armed himself with a pistol and placed it in his belt and was advancing toward the truck as he reminded the deceased that he had theretofore warned him not to stop at his house any more.
The trial court, however, permitted, and I think properly so, the evidence offered by the defendant and his witnesses as to all that occurred at the barber shop about two weeks before the killing, except a dispute between the deceased and a bystander regarding the disturbance there, and also admitted numerous other alleged threats of the deceased toward the defendant and sufficient to abundantly show the state of mind of the deceased at the time of the killing, if the jury believed the testimony in that regard to be true. But it was shown that the previous difficulties with the deceased, and the threats and expressions of ill will by him, all occurred within a nine-day perod during which he and his wife were separated and while she was remaining at the home of her father, the defendant, and approximately two weeks transpired thereafter prior to the homicide.
It is the defendant's theory that these difficulties arose, and that the threats and expressions of ill will on the part of the deceased were made when the deceased was accusing the defendant of being responsible for the fact that his wife was remaining away from him. This cause of trouble, however, had been removed and the deceased and his wife had been living together for approximately two weeks when the killing occurred, as aforesaid; and it therefore became immaterial as to why the wife of the deceased had returned to live with him.
I think that the trial court was in error in excluding some of the evidence offered by the defendant but that the action of the court in that behalf does not constitute reversible error. For instance, the court excluded the statement of a defense witness to the effect that the deceased had said "There wasn't anyway to settle this *Page 746 trouble and there wasn't anything I could say to him to change his feeling." However, the court permitted this same witness to testify that he had told the deceased that "You can't afford a killing," and that he said "That's what it will take to stop it, and by God I am ready for it." Therefore, the exclusion of the milder statement of the witness to the effect that "There wasn't anything I could say to him to change his feeling," should not constitute reversible error.
I agree that the court committed some of the other errors, not sufficient to justify a reversal of the case, pointed out in the controlling opinion, but I am unable to concede that it was error to exclude the testimony about the deceased having shot down near the feet of a negro boy at the former's home during a controversy between the deceased and his wife and her mother prior to the beginning of the trouble between the deceased and the defendant.
And I concur in the opinion to the effect that the district attorney should not have inquired about an alleged affair between the defendant and another woman, and that he should not have made comments to the jury complained of in his closing argument. However, the court sustained the defendant's objection in both instances and instructed the jury to wholly disregard these matters. I think that, therefore, under all the facts in the case it was not error to refuse the entry of a mistrial on account thereof.
Alexander, J., joins in this dissent. *Page 747