(dissenting).
The evidence clearly shows that I. A. Huey, appellant, with malice aforethought and without any shadow of justification, deliberately laid his plans to kill, and did so kill, Will Grigs-by, deceased. Some three or four days before he killed him he became greatly enraged at him because he, Grigsby, would not go to St. Joe with himi and go his surety to borrow money from a bank. Early Monday morning Huey knew Grigsby would that morning go to his field to continue building a fence. Huey took his loaded shotgun, hid it in some growing corn and Johnson grass about 12 steps from where he knew Grigsby would go to work, and when Grigsby reached there Huey went to him and raised a row with him, deliberately walked out 12 steps, got his hidden gun, walked back to within a few steps of where Grigsby was, and with a wire fence between them, and without any provocation or excuse shot him down and instantly killed him. His own nephew, Dike Williams, was present and witnessed the brutal murder, and was so frightened by it, and by the fact that he feared his uncle, appellant, would also kill him to prevent him from being witness against him, that he (Williams), halloaing, ran away. His uncle, appellant, thereupon commanded him to hush and stop. Williams swore:
“He had his gun in his hand when he told me to stop, holding it across that way (indicating across the arm). He had his gun in his hands when he told me to hush. The reason I didn’t keep on running when he told me to stop, I was afraid he would shoot me.”
The evidence as a whole demonstrates this state of facts:
Grigsby was a farmer, owned his farm. Early in 1916 Huey rented some land from Mr. Taylor, near Grigsby’s. He had no house to live in. He also then rented some land from Grigsby, and thereby secured and moved into a house of Grigsby. When he rented he had only two head of stock. Later he acquired a pair of mules and a cow and calf. He was enabled to buy these mules to make a crop with by Grigsby going on his note for $250, the price of them. 1-Iuey had no means to buy provisions for himself and family to live on while making. a crop. About June 15th Huey wanted Grigsby to go with him to the town of St. Joe and go on his note as surety to a bank so he could borrow money to buy provisions. Grigsby declined to do this. It made Huey very mad. Lewis Grigsby, a son of deceased, learned Huey intended going to St. Joe and wanted to go with him. At the time Lewis did not know Huey wanted his father to go with him, but when Huey so told him, he saw and talked with his father, deceased. He then saw Huey again, and swore:
“I told Mr. Huey, ‘Papa said be was very busy in his crop and couldn’t get to go to St. .Too Saturday, and besides, if I wanted to go, I could *206save Mm the trip, because I could go as well as he in the favor that he intended to confer.’ I told Mr. Huey that I could go to the bank with him and tell the banker the number of acres of crop and the condition of the same that he had on Taylor’s place, and in that way help him to get the money. This conversation all took place in the most friendly way, without any thought of any anger or anything, but immediately following this statement that my father couldn’t go to St Joe the old man became very angry, and just broke out in a fit of rage. When I use the expression ‘old man,’ I mean Mr. Huey; he was the man I was speaking to; he broke out in a fit of anger, and said he could throw up the crop he was making on my father’s place and make a living hauling freight. He said, T can’t make a crop without somebody will give me money to buy provisions and things to work my crop, and if I have to let my crop go and grow up in grass, I guess I can make a living hauling freight.’ * * * When I told him I would go to St. Joe instead of my father, he said, ‘There is no use going at all unless your father will go; they don’t lend money out at the banks on wind.’ ”
This was on Thursday before Huey killed Grigsby Monday morning following. Huey went to St. Joe, it seems, alone and managed in some way to borrow some money from the bank.
The fence Grigsby was building was to separate his cultivated from his pasture land. Huey had helped him some' before Grigsby declined' to sign his note to the bank. Late Sunday evening Grigsby met Huey near Lewis,’ his son’s, and asked him if he was going to help him on said fence the next morning. Huey replied in a loud and angry tone:
“I can help you until dinner.”
Grigsby said to him:
“Well, Mr. Huey, I can’t build the fence myself, and if you won’t help me, I will have to hire some one to help me build the fence. If you don’t think the pasture of your stock is worth a little work on the fence, I will have to ask you to keep the stock out of the pasture or pay pasturage on them.”
Just then Mrs. Grigsby called to her husband for assistance about her cow and calf, and he left I-Iuey and went to her assistance. Lewis swore:
“Mr. Huey made no reply to my father in regard to helping him or paying on the stock; he didn’t say which he would do, whether he would help build the fence or pay pasturage on the stock; he just looked at my father right straight and turned and started off, and when he. had taken about six or eight steps he half turned and looked back to my father for probably a half minute, looked just right straight at him, then turned, and, with his head drooped, started on.”
Early Monday morning, while Grigsby was at breakfast, Huey sent his 17 year old son to tell, and he did tell, Grigsby “to come down and he would help him build the fence.” As stated above, 1-Iuey then took his loaded shotgun to where he knew Grigsby would go to work on the fence, hid it some 12 steps off, preparatory to kill him with it when he did come, and did then and there kill him with it.
Grigsby was a much smaller man than Huey, weighed about 125 pounds, was 62 years old, slender, and beginning to feel his age considerably. Huey was 59 years old, weighed not less than 165 pounds, and was a stout, able-bodied man.
Said Hike Williams, appellant’s nephew, who was present and witnessed the murder, testified that when he got within 30 or 40 steps of appellant and Grigsby he heard them talking pretty loud and sort of angry at one another; that it was his uncle, Ike Huey, that he heard; that he then went up to where the parties were; that Mr. Grigsby was sitting in his wagon behind the dashboard. Williams swore:
“When I got up there something was said to me. Mr. Grigsby said, ‘Dike, Huey says he has done as much work on the fence as I have.’ Mr. Huey then told Mr. Grigsby, ‘You are a God damn liar.’ Mr. Grigsby then said, ‘I am not supposed to take that Huey, but you are a larger man than I am.’ Mr. Grigsby then started off the wagon, and Mr. Huey picked up a hammer. Mr. Grigsby stepped out on the brake and from there down on the ground, and after Uncle Ike [appellant] picked up the hammer, he reached in the wagon and got out the axe. Mr. Grigsby was a small man. With reference to Mr. Grigsby appearing angry when he stepped out of the wagon, will say he never returned no words; he just got out of the wagon and picked. up the axe and threw it on his shoulder like this (indicating throwing axe over shoulder) and turned facing. Grigsby just turned around and was facing Uncle Ike. Mr. Grigsby didn’t move towards Uncle Ike. There was a wire fence between Mr. Grigsby and Uncle Ike. My Uncle Ike was on the south side of the fence, and Mr. Grigsby was on the north side. Mr. Grigsby was standing right up at the wagon when he got the axe out of it. When Mr. Grigsby picked up the axe and turned around, I guess he was something like two or three feet from the wagon. When Mr. Grigsby turned around facing Uncle Ike with the axe on his shoulder, Uncle Ike threw his hammer down and said, T don’t allow no God damn son of a bitch to draw an axe on me.’ After Uncle Ike dropped the hammer and left there, Mr. Grigsby dropped the axe down something like this (indicating holding axo with blade down towards feet). When my Uncle Ike said, T don’t allow no God damn son of a bitch to draw an axe on me,’ he turned and went off, and Mr. Grigsby dropped the axe down this way (indicating with handle in hand and blade towards feet). Mr. Grigsby was standing still when he dropped the axe down by his side. While Mr. Grigsby was standing there with the axe down by his side, that is when Mr. Huey started off. When he started off, he went out southeast and kind of across the com, and he picked up his gun. Mr. Huey went out 12 steps in the com, is what Mr. Taylor stepped it. I was there, and saw Mr. Taylor step it. He walked off 12 steps into the com and picked up the gun. He then came on back with the gun and shot Mr. Grigsby. I don’t know exactly.the distance he came back before he shot Mr. Grigsby, but he came back something over halfway. Mr. Grigsby was still standing holding the axe when Mr. Huey came bade there with the gun and shot him. Mr. Grigsby hadn’t moved or changed the position of the axe from the time Mr. Huey turned and went off and got the gun and shot him; he had not moved at all. Mr. Grigs-by was standing on the north side of the fence and Mr. Huey was still on the south side of the fence at the time he shot him. Mr. Huey came up with the gun kinder this way (indicating hold*207ing gun in about a half-raised position in front of Mm) and kinder pointing like tMs and bending oyer this way (indicating by stooping over), and be never straightened up at all; he was kinder bent over. Mr. Huey fired the gun without putting it to his shoulder.”
Dike Williams was a cripple. Some weeks after the killing Usko, the 17 year old son of appellant, told him:
“If I would swear that Mr. Grigsby ran at his pa with the axe through the fence, that that would beat the caso, and I said, ‘Usko, I ain’t go-ine to swear no lie; I have a God hereafter to meet.’ ” And that Usko then threatened to get a club and beat him.
On another occasion Usko told him that he did not know that he (Williams) would ever live to testify in the case. Other threats against Williams were testified to by him.
According to appellant’s own testimony, he tried to make it appear that at the time he shot and killed Mr. Grigsby Grigsby had an axe drawn on him up over his shoulder. If his testimony had been true on this point, it would have necessarily placed Grigsby’s fore-aim in such a position that the shot would have passed through his shirt sleeve on his arm. All this is shown by the testimony, and in addition was demonstrated before the court by the state’s attorney in arguing the case. It therefore became entirely proper for the state to introduce deceased’s shirt so as to demonstrate that appellant’s testimony on this point was false, and it therefore was entirely proper, as had always heretofore been held by this court, for the state to introduce the clothes of deceased to demonstrate the falsity of appellant’s claim. The fact that Mrs. Grigsby’s testimony identified deceased’s clothes, and their introduction in evidence was proper even though appellant had not at that time testified. The state doubtless knew what his testimony would be and had the right to anticipate and disprove it. The record in no way discloses that the state in argument or otherwise used deceased’s clothes in any improper way whatsoever. 2 Branch, Ann. P. 0. § 1855, where he collates a large number of cases.
That Dike Williams might point out to the other witnesses on the ground where Huey was when he started off to get his gun and came back about halfway and shot and murdered deceased and where deceased stood at the time was unquestionably admissible; and from this information, though given to the other witnesses by Dike Williams, they could, as they did, testify that they found appellant’s tracks going 12 steps after his gun, picking it up, and then returning a little over half the distance when he shot and killed deceased, was proper and legitimate testimony, and has always heretofore been held admissible. The bill on this point shows no error whatever.
Without doubt this case should have been affirmed, and not reversed. I respectfully dissent.