(after stating the facts). The testimony is set out at some length, the sufficiency of the evidence being the question here, and shows that the murder of Henry Spears was a foul assassination. The evidence tending to connect the defendant with the crime was the threats testified to by Nicholls and Fenter to have been made by him shortly before the killing, and the statement made by witness Hensley Crossland on his second appearance before the grand jury, as testified to by three members of the grand jury, contradicting his explanation and recital of it. The motive attempted to be shown for the killing was the prevention of the sale of a cow for a debt of $22 which defendant admitted owing to deceased, and which all the testimony showed he had voluntarily secured and agreed to pay.
“ Threats are admissible as tending to show that the person making them was the person who did the killing, where that fact is in issue,” as in this case. Wharton on Homicide, §601; State v. Davis, 6 Idaho 159; Nichols v. Commonwealth, 11 Bush 578; State v. Cummings, 88 S. W. (Mo.) 706; Baker v. State, 45 Texas Crim. Rep. 392, 77 S. W. 618.
“But the prevailing rule seems to be that mere threats to take the life of another are not sufficient to warrant a conviction, in the absence of other evidence connecting the accused with the perpetration of the crime.” Barley v. State, 104 Ga. 530, 30 S. E. 864; Wharton on Homicide, § 605; Jones v. State, 57 Miss. 684; Com. v. Farrell, 187 Pa. 408, 41 Atl. 382; State v. Glahn, 97 Mo. 679, 11 S. W. 260. The only testimony besides the threats tending to connect the defendant with the commission of the murder was the statement of Hensley Cross-land to the grand jury upon his second appearance before that body, as testified to by the members of the grand jury, and this statement and their testimony was admissible only to contradict said witness and impeach him, and not entitled to consideration for any other purpose on the trial.
The testimony of the grand jurors of their belief of the truth of this statement was incompetent, and should not have been admitted, but there was no objection made nor exception saved on account of it. Notwithstanding this, only such testimony as was competent will be considered by this court in testing the question of the sufficiency of the evidence.
The jury not being entitled to consider said statement of the witness Cros'sland before the grand jury as disclosed by the testimony of the members thereof, contradicting his explanation and recital of it, as in any wise tending to show the guilt of the defendant, but only as affecting the credibility of the witness, nor the testimony of said grand jurors that they believed his statement as made to the grand jury and related by them was true and on that account indicted defendant, leaves the verdict supported only by the evidence of the threats which, as alreády indicated, is not sufficient.
Upon the other hand, several witnesses testified to the whereabouts of the defendant on the day and the night of the killing, and their testimony tended strongly to prove an alibi, and, after a careful consideration of the whole case, we are of the opinion that the testimony is not sufficient to support the verdict, and the judgment is reversed, and the case is remanded for a new trial.