I concur in the conclusion of my brother Daniels that the conviction and judgment should be affirmed. The only question in the case upon which any doubt can arise seems to me to be the one so elaborately discussed by my brother Beady. I think the court ought to have granted the motion to strike out the answer to the question which called for a simple “yes or no.” But taking all that was said by the witness bearing upon the question whether he had heard any threats against the life of the deceased made by the defendant, it seems to me no doubt can exist that the jury fully understood from the witness, that he had heard none himself. They could not have taken his testimony as asserting that the reason the witness had for saying that the third shot was aimed at his wife, was that he the witness had heard the defendant make threats against her life. On the contrary, they must have understood him as meaning to say that the reason he thought the shot was aimed at her was because he had heard or understood that defendant had threatened her life. An answer in that form to a question asking for his reason for stating that the shot was made at the deceased would not have been objectionable. It would have been advantageous to the prisoner, because it would have taken out of the former answer all idea that the reason was based upon any actual knowledge of'threats.
Permitting the answer to stand, taking the whole testimony of the witness on that subject into consideration, could not have had any effect prejudicial to the defendant. Threats were proved by other witnesses. The shot, which was the immediate subject of inquiry, was shown to have caused the death of the deceased. That it was, in fact', aimed at her was physically proved by the fact that the bullet penetrated her breast and heart and caused instant death. The answer of the witness, that it was intended for her rather than himself, was the expression of his opinion upon a reason not based upon knowl*430edge, but on hearsay. And the jury could not have been misled, in considering that reason, by the idea that witness was testifying to any actual knowledge of threats. It would have been better to have stricken out the answer; but it is not apparent that it did any possible injury to the defendant. The evidence against him was sufficient to justify the verdict, wholly independently of this particular answer, and we are not at liberty, I think, to assume that the jury took the testimony of this witness for anything more than its legal value under the circumstances of his own explanations.
I think, for these reasons, the judgment should not be disturbed.