(dissenting). — I think the testimony taken altogether so clearly established the fact that the defendant was guilty of manslaughter, that the jury could not have found otherwise than as they did. For this reason the judgment should not be reversed even although it appeared that some technical error had been committed by the court during the progress of the trial. Such being the case, I do not think it necessary to discuss the argument and conclusion of the majority of the court as to many of the questions decided.
There is one, however, as to which I wish to say a word, *308and that is as to the right of the prosecution to introduce evidence as to the good character of the deceased by way of rebuttal, when the good character of the defendant has been testified to by witnesses introduced on his behalf. I am aware that the weight of authority is with the position taken by the majority, but I cannot yield my assent to the doctrine announced by them. Under the rules which obtain as to the trial of criminal actions in modern times some of the old fictions in relation to the rights of the defendant must be discarded, or the failure of justice will be such as to bring disgrace upon the administration of the law. At the time most of these technical rules were established the defendant was practically at the mercy of the court, and it was right that he should be protected in every way possible; but at this time the defendant goes to trial under entirely different circumstances, and there is no reason why the rules relating to such trials should not be substantially the same as those obtaining in civil cases, excepting that to avoid the possibility of an innocent man being convicted the guilt of a defendant should be made to appear beyond a reasonable doubt before a verdict should be rendered against him.
When, as in the case at bar, the killing by the defendant is admitted, and the plea of self-defense interposed, the jury should be put in possession of every fact surrounding the transaction, and if the character of the defendant is allowed to go before them as a part thereof, fairness and reason require that they should also be informed as to the character of the deceased. The important and frequently the only question which they have to decide in such a case is, as to which of the parties was the aggressor in the affray. If in fact the defendant was the aggressor, he should under ordinary circumstances be found guilty at least of manslaughter, and if the deceased party was the aggressor, the jury would generally be justified in acquitting the defendant. *309The important question to be determined is, as to which of the two persons engaged in the affray was the aggressor. And if the jury are to be aided by having the good character of one of the parties to such affray put in evidence, fairness to the public requires that they should be further aided by being informed as to the good character of the other party. And as evidence of the good character of the defendant is admitted without proof of any knowledge in regard thereto by the deceased party, no such proof should be required to make competent like evidence as to his good character. In my opinion the judgment should be affirmed.
Scott, J., concurs.