King v. State

Hurt, J.

The appellant was convicted of murder in the first degree, with the death-penalty affixed as the punishment. The record presents three questions for our solution : —

1. When the plea of insanity is interposed, is the burden of proof on the State to show sanity, or is it on the defendant to prove insanity ?

2. If the jury have a reasonable doubt of the sanity of the defendant, should they acquit or convict, sanity being the only question in the case? «

3. Can the proof be so plenary on one side as to justify the court below in the rejection of legitimate and proper testimony in behalf of the other side?

First proposition: When the plea of insanity is interposed, is the burden of proof on the State to show sanity, ór is it on the defendant to prove insanity? Brush from this question the dust of ancient days, separate it from its old companions, and its solution is perfectly simple. Before entering upon an analysis of this subject, permit us to allude to some very strange and inconsistent expressions used by the learned judges in treating of this question. The following are of the number alluded to : “As insanity excuses the commission of crime, on the ground that the actor is not a responsible being,” etc. “The onus of proving the defence of insanity, or, in the case of lunacy, of showing that the offence was committed when the prisoner was in a state of lunacy, lies upon the prisoner.” “It is rather in the nature of a plea to the jurisdiction, or a motion to change the venue. The defendant, through his counsel and friends, comes in and says that he is not amenable to penal jurisdiction.” A very respectable volume could be made of such remarks, but those cited will suffice for our purpose.

Let us take a steady look, for a moment, at these propositions. For example, take the first. What sane mind can comprehend the possibility of a crime being committed by an insane person ? If the prisoner is insane, there is no crime. If there be crime, there is no insanity, \ Insanity cannot excuse crime, from the fact that, if insane, there is no crime to he excused. These observations apply to the second. Now to the third: “Plea in the nature of a plea to the jurisdiction.” This plea never draws in issue the guilt of the prisoner. Under this plea, sanity or insanity would be the issue, separate and independent from the question of guilt, to be determined. But the court has jurisdiction of the crime, if any has been committed; and how are we to sever, the one from the other ? Shall we first try the question of sanity, and then that of guilt ? Not so ; for on the threshold we are met with the fact that, under the plea of not guilty, evidence on the question of sanity can be introduced. Behold what darkness and confusion surround the question of sanity! a subject around which gather more vagaries and inconsistencies than infest any other question in the whole range of criminal jurisprudence.

But what shall be said upon the proposition that the plea is “in the nature of a motion to change the venue?” If there is the faintest, the most remote analogy existing between the plea and a motion to change the venue of a case, we frankly confess our inability to trace it. We had thought the object of a motion to change the venue was to remove a cause from the county in which the indictment was found to some other one for trial, and that the ground of removal was based upon the fact that an impartial trial could not be had in the proper county — that in which the indictment was found. To what court or county shall it be taken? Will not the same reasons for the change be found in the court or county to which it is transferred ? Most unquestionably they will. These conclusions being true, the case could only find a court of last resort in the tribunal of heaven. This would defeat the ends of human justice, since the primal idea upon which it is based carries with it the further idea of human expiation for human wrong.

These strange and inconsistent expressions which we find in the writings of eminent text-authors are the legitimate offspring of fundamental error which underlies their treatment of this entire subject, and we merely allude to them here to intensify and concentrate attention upon this parent error, from whose fruitful loins have sprung all of these ill-considered statements upon this question of sanity. In jurisprudence nothing can be more valuable than terse statements of principle. On the other hand, hastily conceived and unhappily worded enunciations not infrequently open the flood-gates of litigation, with its vast attendant expense, and lead to judicial murder under all the forms and solemnities of the law.

The fallacy of this fundamental error can be made more fully to appear by comparing two propositions : —

1. Sanity is an inherent, intrinsic element of crime.

2. Sanity is not an inherent and intrinsic element, but is extrinsic and independent of the crime.

The last proposition contains a monstrous fallacy, the fruits of which are visible in so many of the text-books, and which are followed out in many of the enunciations in the adjudicated cases. If sanity is an inherent element of crime, no well-ordered mind can stop short of the conclusion that the State must carry its burden and prove it. Feeling the force of this, writers have treated it as an extrinsic matter, separate and distinct from the question of guilt, and hence those strange and incomprehensible expressions above referred to.

Let us pay our respects to this last proposition, and see if from a bare touch it will not crumble to dust. “ Sanity is extrinsic.” Therefore the prisoner is to be tried for the act, and the question of intent or malice is not drawn in issue. This for the simple reason that an issue formed upon the question of intent or malice irresistibly includes that of sanity; for there can be no intent or malice without sanity. Therefore it follows from this erroneous position that the jury, in viewing the act sought to be punished, must strip it of the intent which prompted it, and look alone to the act. To this we enter our solemn protest.

We now invite attention to what we believe to be the true position, which is that sanity is an inherent, intrinsic, and necessary element of crime. Is this a correct proposition ? Is it not a self-evident proposition? If murder can be committed without intent or malice, then the proposition is false ; if not, it is true. But we do know, if it be possible to know anything, that, to constitute murder, the act of killing must be attended not only with the intent to kill, but with malice; and we also know, with the same degree of certainty, that there can be no intent or malice without sanity. It therefore follows, beyond any shadow of doubt, that sanity is an inherent, intrinsic, and necessary ingredient of crime.

We now return to the first proposition stated at the beginning of this opinion, which is as follows: “When the plea of insanity is interposed, is the burden of proof on the State to show sanity, or is it on the defendant to prove insanity? ” We have thus stated the proposition because we find it so stated in the books, but-it is not a practical one. There is no such plea known to our Code as applicable to a trial of a criminal cause. We have four pleas, — two special, and the pleas of “guilty” and “ not guilty,”—and this plea of “ not guilty ” is a denial of every material allegation in the indictment. Under it, evidence to establish the insanity of the defendant, and every fact whatever tending to acquit him, may be introduced. It follows that under this plea the defendant denies every constituent element of the offence charged, and this plea of “ not guilty ” is the same as if the defendant had denied specifically each element of the crime charged.

This leads us to the consideration of the charge in this case, which is murder, and is defined thus : “ Every person with a sound memory and discretion who shall unlawfully kill any reasonable creature in being, within this State, with malice aforethought, either express or implied, shall be deemed guilty of murder.” From this definition it follows that, to constitute this offence, the slayer must be “of sound memory and discretion ; ” a “ reasonable creature ” must be slain, and the slayer must be actuated by “ malice.” We have then, first, “sound memory” in the slayer; second, a “reasonable creature” slain; and the slayer prompted by “malice.” These constitute murder, and nothing less than all of these can constitute murder. By what principle of logic, reason, or justice can either of these elements be eliminated from the offence? From this it follows that an indictment charging this offence embraces all the above elements, whether specifically named or not; and though the indictment omits to charge that-the defendant was of “sound memory,” yet charging “malice,” sanity is necessarily included. The problem which equals murder is composed of three members: First, “sound memory” of slayer; second, “ reasonable creature” slain; and, third, “ malice ” in the slayer.

Let us see if we can eliminate from this problem one of these members, and leave every element of the offence in the problem. There can be no “ malice” without sanity; hence, “ malice ” includes sanity. We therefore have, first, a “reasonable creature” slain; second, a malicious slayer — murder. Hence the charge in the indictment, that the killing was with “ malice aforethought,” charges the slayer to be of “ sound memory and discretion.” If this conclusion is not correct, we most unhesitatingly assert that the indictment is worthless; for we have found, under our Code, sanity to be an element of murder, and, by well-settled rules of criminal pleading, an indictment which fails to embrace in its allegations all of the constituent elements of the offence is fatally defective. The authorities approach nearer to unanimity upon this question than any other known to us.

If the above analysis be correct, and we think it is, it devolves upon the State to prove every inherent element of the offence ; and as we have found sanity to be such an.element, it rests upon the State to prove sanity. Still holding with a firm grasp the proposition that sanity is an inherent element of the offence, and as there is no such thing in law as separating the elements of an offence so as to cast the burden of apart upon the State, and, as to the rest, to require the defendant to take the burden of proving a negative, it follows that the existence of each element is an affirmative proposition, the proof of which rests with the State. The idea that the burden of proof shifts is in direct conflict with the philosophy of criminal jurisprudence, and at war with fundamental principles ; for we hold that, with regard to necessary ingredients, it never shifts. If two or more elements constitute an offence, which of these elements must be proven by the State, and which must be proven not to exist by the defendant? If elements, do they not all stand upon the same plane, or are there some which prove themselves ? If there are, they are not elements. Are we to require the defendant to prove the non-existence of that element — sanity — upon which intent and malice depend, and yet hold the State to prove intent and malice f To us it is impossible to harmonize, logically, these positions.

We are now led to meet the most plausible, difficult, and potent position which can be assumed upon the other side. And we here concede that it is supported by the weight of authority; but we do not think it is founded in principle, and if not founded in principle, to follow would be dangerous. It is this: The fact of killing being admitted, and that beyond doubt the prisoner did the killing, and sanity being the normal condition of all persons, the law presumes the prisoner sane until he shows to the contrary; and therefore the burden of proving insanity rests with the prisoner. It will be seen at once that the struggle is with this presumption of sanity.

Let us move quietly but closely up to this gentleman, and try to see who he is. The name of this witness is presumption. He is a venerable gentleman. He was contemporary with the first-born principles of enlightened jurisprudence. For truth and integrity he has never been excelled by any witness. His means of knowledge are unsurpassed, having for a foundation the laws of nature, and the truth of his evidence is corroborated by the experience of man through all ages. The effect of his evidence is the production of not only a mere prima facie case, but full and complete conviction when' not opposed. Upon his evidence alone, when not contradicted, sanity being the only issue, man has been made to expiate the violated law with his life. When he speaks to the sanity of the prisoner, his evidence meets with an approving response in the mind .of every intelligent and honest juror, for their experience corroborates his testimony. But he is not infallible. He never testifies to the sanity of any particular individual. His is never positive, but always presumptive evidence. Sanity being the normal condition of man, he presumes that to be the condition of the prisoner. With the parents or relatives of the prisoner he is not acquainted. He is not aware of the fact that perhaps some of the prisoner’s blood-relatives are now inmates of an asylum for the insane. Though his locks are bleached by the winters of ages; though he has never been charged with prejudice, and though his evidence is supported by the laws of nature and corroborated by the ■ experience of man, yet he is somewhat arbitrary. He places the prisoner in the normal condition of man, which is sanity, and demands of him the same conduct whether sane or insane. He never heard of insanity, because he speaks alone from the laws of nature, and insanity being an exception to the natural rule, they are unacquainted. With the prisoner’s language, conduct, or misfortunes he has nothing to do, and of them he is entirely ignorant. Yet he holds him with an iron grasp to the laws of nature and the experience of man. Is he omnipotent? How many witnesses are necessary to measure arms with this Titan? Does he partake of the kingly character, and can he “do no wrong? ” Upon the testimony of one witness alone, the prisoner may be legally convicted and executed. Can this gentleman’s evidence accomplish more? In no case can he accomplish more than can be effected by the evidence of one witness. We do not mean the evidence of any witness. Can the evidence of one witness ever be an over-match for him? In some cases it legally and justly can; in others the testimony of scores will not suffice, this depending alwaj's upon the character of the witnesses, their means of knowledge, and the facts sworn to.

Having endeavored to become somewhat acquainted with this witness presumption, we now desire to call special attention to a very remarkable feature of his character. It is conceded by all that his evidence is relied upon, and is absolutely necessary to convict, in a great many cases in which the question of sanity is not involved. It is also conceded, under our decisions, that in these very cases the burden of proof does not shift, but remains with the State throughout. How, upon what principle of logic or justice can we give to this presumption so much power in a case involving the question of sanity as to shift the burden to the prisoner, and in the other cases hold that it does not shift f

In Ake v.The State, 6 Texas Ct. App. 398, Judge White makes an extract from the opinion of Judge Bigelow in the case of The Commonwealth v. McKee, 1 Gray , 61. From it we give the following: 6 ‘The general rule as to the burden of proof in criminal cases is sufficiently familiar. It requires the government to prove, beyond a reasonable doubt, the offence charged in the indictment, and if the proof fails to establish any of the essential ingredients necessary to constitute the crime, the defendant is entitled to an acquittal. This results not only from the well-established principle that the presumption of innocence is to stand until it is overcome by proof, but also from the form of the issue in all criminal cases tried on the merits, which, being always a general denial of the crime charged, necessarily imposes on the government the burden of showing affirmatively the existence of every material ingredient which the law requires in order to constitute the offence. If the act charged is justifiable or excusable, no criminal act has been committed and the allegations in the indictment are not proved. This makes a broad distinction in the application of the rule as to the burden of proof in civil and criminal cases. In the former, matters of justification or excuse must be specifically pleaded in order to be shown in evidence, and the defendant is therefore, by the form of his plea, obliged to aver an affirmative, and thereby to assume the burden of establishing it by proof; while in the latter all such matters are open under the general issue, and the affirmative — viz., proof of the crime charged — remains in all stages of the case upon the government.’

The quotation being ended, Judge White proceeds : “As thus enunciated, we believe the doctrine to be correctly asserted, and we know of no decision of any of the courts in this State which has ever contradicted or contravened it.”

We ask special attention to the doctrine enunciated by Judge Bigelow, and which is affirmed by our own judge in the opinion above quoted from, which is as follows : “ The burden of proving every essential element necessary to constitute the offence is with the government, and this remains, in all stages of the case,, upon the government.” This rule applies only to the burden of proof of the necessary ingredients of the offence, and, as Judge White further and properly states, “ when distinct substantive matter is relied upon by the defendant to exempt him from punishment and absolve him from liability, then that is matter foreign to the issue as made by the State in her charge against him, and the burden of proving it, in reason, common sense, and law, should be upon the defendant.” The italics are ours.

From the above we deduce these rules : —

1. The State must prove every necessary ingredient of the offence, and, so far as they (the ingredients') are concerned, the burden of proof never shifts.

2. When distinct, extrinsic matter is relied on by the defendant, the burden is on him to prove it to the satisfaction of the jury.

To these rules we give our hearty assent. But the grand, fundamental question here again presents itself: “Is sanity a necessary element of crime? ” We have said all we desire to say on this question.

We now propose to return to that plausible position of the other side, “The evidence showing the act to have been done by the defendant, and sanity being presumed by the law, the burden shifts to the defendant.” Those who occupy the other side plant themselves upon this proposition, and ask with plausibility, and a great show of victory, “ Will not the prisoner be convicted if he fail to introduce evidence of his insanity?” We admit that he will, and justly. But suppose the evidence shows that the defendant killed the deceased intentionally, with a deadly weapon, and here closes. Will not the prisoner be convicted if he fail to introduce evidence in excuse or justification^ Let us take another case: The State proves, by a number of unimpeachable witnesses, that the deceased was brutally murdered by some one in the perpetration of rape, and witness after witness has sworn to the identity of the prisoner as being the perpetrator of the foul deed, and, in addition to all this, the State proves, by a number of witnesses, facts strongly tending to prove the presence and guilt of the prisoner. If the case closed here, would not the prisoner be in very great danger of losing his life ? Can presumption make a stronger case than thisf Bear in mind that the above facts constitute the ease before the court, and the judge should charge the law applicable to the case as made by the facts. Now suppose, in this case, the State having closed, the prisoner proves, by a number of his neighbors, that he was at another place at the time the offence was committed, and adds fact upon fact in support of their evidence in favor of an alibi. This would be quite a different case from the first, but the case. Now, suppose the judge should split the last case just where the State closed (notwithstanding the case as made by all the evidence), and charge that the burden of proof shifted to the prisoner to prove his alibi. Would that be held sound law in this State? By no means, and for the simple reason that if the prisoner was not there he is not guilty. An alibi strikes at the very heart of the proposition of guilt, and every particle of evidence in its support, though negative in its character, is a direct attack upon the theory of his presence at the place of the crime; and, if not there, he is not guilty. And here we would call attention to another source of confusion (in our judgment), which is that ipany judges fall into the error of viewing the case, not as a whole, but in its different stages, and apply the law in their charges to these stages. This splitting up of a case into several parts, and, by the charge, shifting the burden first upon the one and then upon the other party, is against law and principle. In every criminal prosecution the guilt of the prisoner is the objective point, and every step, every move, every element of the offence, and any fact which is necessary to arrive at that point, is affirmative in its very nature ; and, as to any of these, the burden never shifts.

.We have found, in this supposed case of murder, that if the defendant failed to introduce evidence he would likely forfeit his life; but we have also found that the burden in that case did not shift. Now, suppose the State proves that the prisoner deliberately, and with a deadly weapon, kills the deceased, and here the evidence closes. Must the State go further, and prove sanity, by introducing a witness to that point? By no means, for sanity is not in the case. But suppose the prisoner piles fact upon fact tending to show insanity, must the court charge that the burden in this case is on the prisoner?

Is this a stronger case than the one above put? We think not. Then, can any sound, logical reason be given for shifting the burden in the last and not in the first case? Most unquestionably not. We have found that proof of an alibi is a direct attack upon the theory of the defendant’s presence at the place of the crime. Proof of insanity is, therefore, an attack upon sanity, and if this is gone, there is no intent, no malice; and if these are wanting, there is no murder, no crime. If there is a mistake in these conclusions, we are not capable of reasoning upon any subject, for these are our settled and honest convictions.

We therefore conclude that, since sanity is an essential, inherent element of murder, and since the State must prove all of the necessary ingredients of the offence charged, we cannot escape the conclusion that the State must prove sanity ; and as we have found that the burden of proof does not shift in regard to necessary ingredients of the offence, and as sanity is such an ingredient, it also follows that the burden of proof is upon the State to show sanity, and not upon the defendant to prove insanity — a negative. This rule has no application to cases in which the question of sanity is not raised; nor do the rules applicable to alibi in all cases, good faith and mistake in theft, etc., have any application in cases in which the facts do not call for them.

Now, let us see if we can put these principles into active operation ; for, unless practical they are valueless. The jury is sworn and the plea of “ not guilty ” entered by the prisoner. The charge is murder. The burden is on the State to prove guilt. The State proves the killing by the defendant, with a deadly weapon; the wound was mortal, the act deliberate, and not attended with any circumstances of mitigation, extenuation, or justification. But here we are met with the objection that there is no proof of sanity. Not so ; for the State has the evidence of that venerable and impartial witness, the truth of whose statements is corroborated by the laws of nature and the experience of man. He is the first witness in every case, and at the very threshold proclaims the sanity of all persons. He not only proclaims sanity, but, when certain facts are proved, he swears to the existence of malice. Not only so, but, when an injury is inflicted, he testifies to the fact that the party inflicting the injury intended so to do. Take the above case, with the testimony of this witness presumption in connection with the other facts, and if the evidence closes there, the defendant would and should be convicted. But, the State having closed, the defendant proves fact after fact tending to show the want of sanity. Shall we try him by the presumption or by the facts' on the question of sanity, or by both the presumption and the facts ? If this witness is infallible ; if he cannot err; if his evidence is conclusive on the question of sanity, then we should try him by the presumption, which would be no trial at all. But, as he knows nothing of this case, and since his evidence is not conclusive when opposed by other evidence, but very powerful, and conveying evidence of a presumptive character, we should try the defendant by both. The trial proceeds ; the defendant proves fact after fact tending to show the want of sanity; but there is the evidence of that old, hoary-headed witness, who is without partiality or prej udice ; who is not related to either of the parties, and who is incorruptible, proclaiming the sanity of the defendant. The jury draw upon an experience which corroborates the truth of his evidence; but, as he knows nothing of the sanity of this particular prisoner, his evidence being of a presumptive character, and not conclusive, the struggle throughout the trial is between his evidence and that of the defendant'. The defendant closes, and the old witness presumption appears to be crushed; but in comes the State with the evidence of witness after witness swearing to facts tending to show sanity, thus corroborating this witness presumption; and thus the jury try the case by the evidence of this witness presumption, in connection with all the evidence on the question of sanity, giving to each witness and all the evidence their due and proper weight, just as in other cases in which the question of sanity is not involved. It will be seen, therefore, that the evidence of this witness presumption is to be taken in connection with all of the other evidence, he being treated as a witness in the case.

By a careful survey of the above positions it will be perceived that the burden of proof is quite a different thing from the means' or instruments of proof. We have not time here to elaborate this position. We have now said all we desire to say upon the burden of proof, concluding that it never shifts in regard to the necessary ingredients of the offence.

The court below charged the jury that the burden of proving insanity was upon the defendant. This, we think, was error. 17 Mich. 111; 16 N. Y. 58 ; 2 Metc. 240; 1 Gray, 61;, 7 Metc. 500; 31 Ill. 385 ; The State v. Crawford, 14 Am. L. Reg. (n. s.) 23 ; 43 N. H. 224; 19 Ind. 170; United States v. McClane, 7 Law Rep. (n. s.) 439.

The next proposition is: “ Must the State prove sanity beyond a reasonable doubt? ” If sanity is a necessary ingredient of crime, and if it be necessary to prove the ingredients of crime beyond a reasonable doubt, the conclusion that it (sanity) must be proved beyond a reasonable doubt cannot be resisted. Hence the settlement of the first proposition— viz., that sanity is an inherent, intrinsic, nee-essary element of crime — conclusively settles the last proposition, if the doubt can be applied to the necessary ingredients. To illustrate: The defence is the want of sanity, or alibi, or good faith, or mistake, or any other matter which will defeat guilt; now, is it proper, to specifically apply the doubt to either of these grounds? Take, for example, the fraudulent intent in theft, and assume that the facts are of such a character as to make this the only question. Upon this the defendant makes his contest. Would it be wrong for the court to apply the doubt directly to this part? We think not. Then, if the doubt can properly and justly be specifically applied to one ingredient of an offence, why not to others, if they are made prominent by the situation of the case. If the court, by its charge, calls special attention to the defence or defences urged by defendant, and then applies the doubt to the whole case, we are not to be understood as holding that this would be error. But suppose the defendant asked that the doubt be pointedly and directly applied to his defence or defences, would it be right or wrong for the court to thus apply it ? This brings to the front the right or wrong of the principle.

Now, it is conceded by all that if there be a doubt of the guilt of the defendant the jury must acquit, and as there can be no guilt without sanity, a doubt of sanity would therefore be a doubt of guilt. If it be proper to acquit upon doubt of guilt, how can it be wrong to acquit upon a doubt of sanity, upon which guilt necessarily depends? Would an honest and just man convict, if he had a well-founded and reasonable doubt of the prisoner’s sanity? We think not. Would justice demand his conviction, or would not reason, humanity, and justice imperatively require his acquittal? Then, if upon a well-founded, reasonable doubt of sanity, justice demands his acquittal, is it wrong for the court to so state in its charge ? Must justice he put to shame, driven to the rear, and forced to ensconce herself behind some other proposition? Has not the prisoner the right to have her brought to the front, face to face with the jury, and the jury to be made to pass upon her merits? In every trial, justice should be kept in the front rank, and not driven to the rear with the stragglers and camp-followers. We therefore conclude that, when requested by the prisoner, the court should charge the jury that if they have a reasonable doubt as to the sanity of the prisoner they should acquit. Hatch v. The State, 6 Texas Ct. App. 384 ; Robinson v. The State, 5 Texas Ct. App. 519 ; Kay v. The State, 40 Texas, 29. This charge was asked and refused in the Webb case, decided at this term (ante, p. 490), in which action of the court we think there was error.

From the statement of facts in this case, it will be found that the defendant stated that he was compelled to kill deceased ; that he had taken supper at his sister’s, near Hilliard’s, and on his way home was passing Dr. Harrington’s, when he got after him with a pistol and ran him down, when he.wheeled and shot him. The State introduced these statements. It further appears, from the horse-tracks, that deceased was running his horse along the road in the direction of the person who shot him, and also that the deceased fell in the road, and that his pistol was lying by him. The killing was in the night, and was not seen by any person. Under these facts, defendant proposed to show that just before, or a short time before the killing, deceased threatened to kill the defendant. This being objected to by the State, the court sustained the objection; to which the defendant excepted, and reserved a proper bill of exceptions. It is conceded by the assistant attorney-general that this evidence was admissible,-but contended that the defendant is not injured by its rejection, because the facts establish overwhelmingly that defendant was waylaying the deceased, and that the right of self-defence was thereby forfeited. It will be seen that, under this state of case, our third proposition is found, viz.: “ Can the proof be so plenary on one side as to justify the court below in the rejection of legitimate and proper evidence in behalf of the other side?” To this proposition our answer must be in the negative. To hold the contrary would make the court the judge of the weight of the evidence and the credibility of the witnesses, which is imperatively and invariably the province of the jury. There can be no case until the evidence is closed on both sides, and then, and not till then, can it be properly termed the case. This evidence, which legally and justly constituted a part of the case, being rejected, the jury passed upon a part, and not the whole case; which must, of necessity, result in injury to the defendant.

When the court charged the burden to be on the defendant to show insanity, we think there was erz’or, and that the rejection of evidence of threats was also error. For these the judgment must be reversed and the cause remanded.