dissenting.
I do not concur in the conclusions reached by the court in its opinion; and without undertaking to write a finished opinion, shall state as briefly as practicable my reasons for dissenting.
The evidence tends to show that both killer and killed were bad actors; and that, following an altercation which *822had taken place between them earlier in the day, each had armed himself, in anticipation1 of further trouble with the other: While these facts must be borne in mind and given their due weight in the determination of the law applicable to this case, they- give no license' to the killer to kill, nor do they of themselves place him in a position in which he could not have, legally killed in defense of himself. ¡ -
■ Only by rejecting' the testimony of . Ernest Steel and Bennie-Steel as-unworthy of'belief, even when not directly contradicted by the testimony of -any other, witness,- can conviction- be sustained. This makes -it very material that no-evidence of1 probative value bearing on the truth-or falsity of their testimony should -be excluded.- • The statements made by Bennie or -Ernest Steel to Moran Cantrell and several other-persons .soon after the killing, which were excluded by the court-, may be too far removed in time and circumstance from the killing to have probative value. But I think the statements to which James H. Groseclose testified bear the earmarks of having been spontaneous and impromptu outpourings of the mind of Ernest Steel, made while it was under the influence that controlled and governed it at the time the f-atal shot was fired, have real probative value, and should have been admitted in evidence.-
The court certifies that the. evidence of Groseclose which was excluded was- as follows: ■ ■ •
“I was about 200 feet- away when Erna Steel shot Ed Steel. I was driving my truck along the public highway and a woman ran out to her yard fence waving her hand and pointed and said didn’t you see him shoot him down. I looked and saw Bennie Steel and Erna Steel stoop down.and raise Ed Steel’s head .and shoulders, up. Bennie Steel took his head and.shoulders in his arms and lap and,they were both Bennie Steel and Erna Steel was talking to Ed Steel and rubbing his face and .trying to minister, to.him. I got out of my truck and wept to where they were and Erna *823Steel said I had it to do, he jerked his pistol and started to shoot me and I shot him. Said, don’t you see there is his pistol lying there, and I looked and in about eighteen inches of the body of -Ed Steel and saw a pistol laying in the road and a pint bottle about, half, full of something which I took to be whiskey laying near the pistol.”
Groseclose was only 200 feet (not 300 yards) distant at the time of the shooting; and to me the irresistible inference from the evidence is that he arrived at the scene and heard these utterances of Ernest Steel within a fraction of a minute after the shot was fired, and before it is probable that Ernest Steel had had time to fabricate a defense. I find nothing in the evidence to suggest that the statement made to Groseclose was made after Ernest Steel had left the immediate scene of the shooting or had thrown away the knucks.
In this connection it is pertinent to note that I find no direct evidence in the record that Bennie Steel took the pistol .out of Ed Steel’s pocket either at the time he took the bag of chop from his shoulder or at any other time.
Okley Stanley testified: “Bennie took the sack of chop off of Ed’s shoulder and as he took chop off his shoulder he put his hand on Ed’s pocket, and I turned my head and heard a shot; and when I looked back I saw Ed falling with his hands stuck up and Bennie standing with pistol in his hand.”
Hattie Stanley testified: “Bennie took a bag of chop off of Ed’s shoulder and I thought they were going to have a fight and I turned and walked into the house. After I went into, the house, I heard a gun fire and I went back out on the porch and I saw Ed falling with both hands up, and immediately after Ed fell Bennie was standing over Ed with a pistol in his hand.”
This is all the evidence Avhich I find to support' a finding that Bennie Steel took Ed Steel’s pistol out of his pocket at any time, or to- contradict the testimony of Bennie and *824Ernest Steel that Ed drew his pistol on Ernest Steel before Ernest fired.
It is also to be noted that all who claim to have been eye witnesses of what took place were from 250 to 300 yards distant, and this evidence shows that they saw but imperfectly what happened. The undisputed physical facts testified to by a witness for the Commonwealth show that the shooting was done at close range (the wound made by the load from the shot gun was only about as large as a dollar), and that the shot ranged upward. This tends strongly to support the statements of Bennie and Ernest Steel that Ernest Steel fired from his hip.
Under the facts in this case, I think the court erred in giving instruction No. 8 which is fully set forth in the opinion of the court.
Earlier in the day there had been a difficulty between Ed Steel on the one hand and Bennie and Ernest Steel on the other, which the evidence tends to show arose, in part at least, out of the misconduct of Ernest Steel, at which time Ernest and Bennie Steel had used violent language. But this transaction had terminated; and the misconduct of Ernest Steel on that occasion did not operate to take away from him the right of self-defense at the time the shooting occurred.
Instruction No. 8 is so framed that the jury might well have understood therefrom that the misconduct of Ernest Steel at the time of the earlier difficulty deprived him of the right to shoot in self-defense at this later time. There is no testimony that Bennie or Ernest Steel used violent language at the time of. the shooting, but there was much testimony as to the use by them of violent language on the prior occasion; and the reference to violent language in the instruction may well have led the jury to understand that the court had told them that if the necessity, for the killing, was a consequence of the misconduct of Ernest Steel on the former occasion he could not shoot in self-defense.
*825I do not concur in the view of the court that in this case the other instructions given rendered the error in instruction No. 8 harmless error.
I fully concur with the court in its view that the argument of the Commonwealth’s attorney was very improper; but I am further of opinion that under the evidence in this case the court committed reversible error in permitting the Commonwealth’s attorney to appeal thus to the sympathy and emotions of the jury and to attempt to arouse their passion and prejudice against the accused.
For these reasons I think the judgment of the court should be reversed.