July 26, 1923. The opinion of the Court was delivered by The appellant was tried and convicted of murder, with recommendation to mercy, for the killing of Willie Rawls, on the streets of Wagener, on the 9th day of August, 1922. The appellant and Rawls had a previous difficulty, and Rawls had threatened to kill the appellant. There was testimony to show that Rawls had made threats that very morning, and these threats were communicated to the appellant. There was testimony to show that the appellant was standing in the street by the side of an automobile when he saw Rawls coming. The appellant says that Rawls had his gun on his right arm, and he saw Rawls make a motion towards his gun with his left hand, as though preparing to use the gun, and he took his own gun from his automobile and shot him twice, and from these wounds Rawls died. There are twenty exceptions, but they need not be considered separately.
I. The first allegation of error is that Dr. Webb was not allowed to state that Henry Martin, another witness, had called at his residence in the doctor's absence and left a call for his professional services. This was clearly hearsay and incompetent. This assignment of error cannot be sustained. *Page 388
II. The next assignment of error is that witnesses were allowed to state that it was the habit of Rawls and some of his family to carry their guns with them wherever they went, and carry them unbreached. It is difficult to see how this was prejudicial to the defendant. The purpose of it was clearly to show that the possession of an unloaded, unbreached gun was no indication of an immediate purpose to use the gun. It was a two-edged sword, and should have been omitted.
III. A witness, H.B. Garvin, was allowed to testify that the deceased told him that he had come to Wagener to have some papers drawn. The appellant was not present, and it was merely hearsay, and incompetent. This exception is sustained.
IV. Evidence was allowed, over objection, as to the origin of the difficulty. The fact that there had been a previous difficulty was proper, the details were inadmissible, and their introduction error.
V. The appellant, when on the stand, attempted to tell of a threat made on the morning of the homicide, communicated to him by Mr. Busbee, who was in the courtroom. The Court ruled out the statement, on the ground that the testimony of Mr. Busbee who heard the threat was the best evidence. That would have been true, if the question had been as to what threat had actually been made, but it was not. The question was upon that information did the slayer act, and as to that question the appellant was a competent witness.
The seventh exception has been covered. The eighth and ninth exceptions were rather unusual expressions, that are not likely to be met again, and need not be discussed, as a new trial will be ordered.
VI. The next question is, did his Honor err in limiting the evidence of bad character of the deceased to the plea of self-defense? It is difficult to see how this could have been prejudicial error, if error at all. The *Page 389 appellant admitted the killing, and his whole case depended upon self-defense. The bad character of the deceased, therefore, covered the appellant's whole case.
VII. The next assignment of error is that his Honor's charge omitted the right to act on appearances. That was charged before and after the expression quoted.
VIII. The next assignment of error is in the following charge:
"While it is the law that a man has the right to go about the ordinary business of his life, even when threatened by another party, yet, if he can reasonably avoid meeting with his adversary and of taking human life, the law requires him to do so. He would have no right to place himself in a position where he knew that his adversary would come, and there shoot him down, and claim that it was done in self-defense."
This was error. If this was the law, a man might have no right to go to his home or his place of business if his assailant were there.
The other exceptions are covered by what has been said.
The judgment is reversed, and a new trial ordered.
MR. CHIEF JUSTICE GARY did not participate.