On Behearing.
OVERTON, J.Defendant was tried on a charge of murder, and was convicted of manslaughter. He has appealed, and relies on a number of bills of exception for a reversal.
The first bill that presents itself for consideration is one excepting to the ruling of the court for refusing to permit defendant to withdraw his plea of not guilty and file a motion to quash, based on the ground that the grand jury that returned the indictment was illegally drawn. Defendant, as reason why this permission should have been given him, urges that he was not arraigned at a regular term of court, nor at any term at all; that his leading counsel was absent at the time; that he moved to withdraw the *943plea and file the motion to quash as soon as knowledge of tlm illegal drawing of the jury reached him; that he had, under the law, until the first day of the next session of court to file the motion.
[3] Defendant is in error when he says that he was not arraigned in open court. The minutes of November 22, 1920, the day on which the arraignment took place, show that on that day court opened according to adjournment. There is nothing showing from -what day it adjourned. The presumption is that it convened regularly.
There seems to have been nothing unusual about the session of the 22d. On November 13th, the day upon which the indictment was returned, the trial judge gave notice from the bench, to the sheriff, to have in court, on November the 22d for arraignment, all persons indicted at that session, and accordingly, when court opened on that day, the defendant was arraigned.
It is true that when the arraignment took place, the counsel, who now appear of record as defendant’s leading counsel, were not present, but, it is also true, that at the time of the arraignment defendant was assisted by an attorney at law, who is at present of counsel for him, and who, the trial judge states, in his per curiam, informed the court at the time that he represented defendant as leading counsel. There was no effort made to postpone the arraignment.
Defendant had ample time to inquire into the legality of the grand jury. The motion to quash was based upon the ground that the general venire list from which the grand jurors were selected contained many fictitious names, and the names of persons not residing in the parish. It is not, however, suggested that nonresidents, or jurors incompetent otherwise, sat as members of that body.
[4, 5] The motion should have been filed before the plea of not guilty was entered. It is within the discretion of the trial judge to refuse to permit the withdrawal of such a plea in order that a motion to quash may be filed. State v. Rester, 116 La. 985, 41 South. 231; State v. Boudreaux, 137 La. 227, 68 South. 422. From what we have said we are not of the opinion that the judge a quo abused that discretion. Defendant did not have, under the law, as he contends, till the first day of the next session to file the motion.
[6] The next bill presents an exception to the ruling of the court permitting Mr. R. D. 'Richey, who was of counsel for the prosecution, to explain to a juror the various verdicts that might be rendered in a murder case, while the juror was being examined on his voir dire. The objection to the explanation is based upon the ground that the judge was the proper person to state to the juror the law, and that counsel was without right to state his version of it, and to ark the juror what his verdict would be, based on that version. The bill does not state what ' the ‘explanation was, beyond what has been said. The trial judge states that the prosecution was explaining to the juror the various verdicts that could be rendered in a murder case; that this was done correctly; that the state peremptorily challenged the juror; and that finally the defendant secured a jury without exhausting all of his-challenges. We are of the opinion that there is no merit in the bill.
[7, 8] The third bill reserved is to the effect that, after defendant had made the objection just passed upon, the court made the-statement that no more objections would be tolerated from defendant’s counsel; that the court’s decision was final; that the court-made many other statements over defendant’s objection; that the court had previously, and even then, refused defendant’s request for a stenographer, and had permitted. *945the trial to proceed without noting many of his objections.
The trial judge says that the above statement is incorrect; that he did, however, remark to counsel that he had ruled on certain matters, and that the ruling, in so far as his court was concerned, was final; that he made this remark, because, after he had ruled, counsel would not heed his ruling; that he permitted counsel to make all the objections he saw fit to make; that he advised counsel that he had no court stenographer; that he would appoint one, if one could be found; that he finally induced a young lady, who was a beginner in stenography, to take some testimony in the case; but that whenever the attorney for the defendant made an objection, he informed him that the clerk of court would take down the objection and the evidence objected to, if such was desired, and that this was invariably done.
[9] There is a conflict between the statement of defendant and that of the trial judge. In so far as the conflict exists, in the absence of proof that the trial judge is in error, his statement will be accepted. State v. Hooper et al., 114 La. 557, 38 South. 452. So accepting the statement of the judge a quo, and taking up for consideration the remark made to counsel to the effect that his rulings were final, in so far as his court was •concerned, it is evident, as indicated by the per curiam of the judge, that the remark was intended to cause counsel to desist from ignoring the rulings of the court which the Judge states counsel was doing. So viewed, it affords no ground for reversal. Nor can the defendant properly complain because the court failed to procure a stenographer, when one was desired by him. Unquestionably the defendant has a right, in a criminal case, to have the facts, upon which his exception is based, reduced to writing. The law, however, names the clerk of court as the one to reduce them to writing. Act No. 113 of 1896. Hence the defendant was beyond his right when he insisted upon a stenographer. The judge states that he refused no request to have the clerk reduce to writing the objections and the evidence objected to, but constantly offered this official for that purpose. The defendant should have acted upon the offer. We therefore conclude that this bill is not well founded.
[10] Bill No. 4 was taken, in part, to the ruling of the court in permitting the state, while examining a juror on his voir dire, to use the expression “cold-blooded murder”; and in permitting the state to explain to jurors, during such examinations, the various verdicts they might render, under the law.
[11] The court states, in the per curiam attached to the bill, that the juror had stated he was opposed to capital punishment, in some cases; whereupon the district attorney asked the juror whether he was opposed to it in cases of cold-blooded murder. We arc of the opinion that the use of the expression, in that connection, was not objectionable. The state had the right to ascertain whether, under the circumstances, the prospective juror was opposed to capital punishment in that class of eases, and that is all that the question implied. The mere fact that the district attorney explained to jurors, while they were being examined on their voir dire, the various verdicts that, 'under the law, they might render, does not call for a reversal. There is no suggestion that the district attorney erred in making the explanation by stating them incorrectly. The verdict rendered by the jury was a legal one, responsive to the indictment. The defendant was not injured by the explanation.
[12] In the same bill of exception the defendant also states that—
“Having noted that his objections and exceptions were not being noted by the clerk- and were therefore being lost, the defendant’s *947counsel objected to proceeding further for the reason and on the ground that his hills of exception to the court’s rulings were being lost, whereupon the court ruled that if defendant wanted his bills taken down he would have to get a stenographer, as the coui't would not provide one, and the parish would not pay for one, to which remark, made in the presence of the jury, and to which ruling, the defendant, through his counsel, objected and excepted.”
And then follows the usual clause relative to the presentation of the bill to the judge for signature.
The judge, in his per curiam, denies that the remark, in respect to the stenographer, was made, and states that he said he was willing at all times to appoint one, if one could be found, and to see that the stenographer was paid for his services; and told the defendant:
“That the clerk would take down any statement or objection; that if the attorney didn’t see that the clerk did it, that he had no knowledge of the same.”
While Act No. 113 of 1S9G requires , the judge, when an exception is taken to his ruling, to order the clerk to reduce to writing the facts upon which the bill has been retained, yet this requirement may be waived; and it is frequently waived in practice, by the attorney for the defendant not dictating the objection to the clerk to be taken down, after the ruling is made. In this instance, the judge, as appears from the preceding bill, to which he makes reference in this bill, in effect, ordered the clerk to reduce to writing all objections that defendant wished to be thus reduced, when he stated that the clerk would take them down. It then became the duty of the defendant to dictate them to the clerk. This he failed to do. Moreover, when the judge’s attention was called to the fact that the objections had not been reduced to, writing, he again informed defendant that the clerk would take down any statement or objection desired. Therefore, when defendant did not do his part, in having them reduced to writing, it was his fault, and he cannot complain of it, notwithstanding disagreements arose thereafter, between defendant and the court, as to what the facts were. There was no reason to stop the proceedings, except for the purpose of writing the statements and facts upon which the bills had been retained, and this, from the per curiam of the judge, we are satisfied he was willing to do.
[13,14] Bills 5, 6, 7, and 8 may be considered together. They relate to threats made by the deceased against the defendant prior to the fatal difficulty. The evidence to show the threats was offered, first, upon the theory that the deceased had made a hostile demonstration against defendant at the time defendant killed him; and, then, to show who was the aggressor. This evidence was also offered to rebut any inference of malice that might arise from the fact that defendant, shortly before the difficulty, armed himself with a shotgun, loaded with buckshot, with which he afterwards killed the deceased. The lower court excluded this evidence.
The facts pertinent to the question under consideration are as follows:
The defendant and the deceased were neighbors, living only a 'short distance apart, in the country. The deceased was a mail carrier. On the day he was killed, he took with him, in carrying the mail, his two sons, one about 10 years of age, the other about 13. He was a little later than usual in returning home.
About 45 minutes before the homicide, defendant, with a gun loaded with buckshot, went, according to his statement, to kill a bulldog, which he then thought was attacking his hogs, near the home of deceased, but which he afterwards discovered was not. At that time, there was a puppy barking at a hog. Defendant went sufficiently far to see that it was not his hog. He then *949started towards his home, near by. In returning he walked arpund the fence that inclosed the premises of the deceased. The wife of the deceased spoke to him, at that time, but he did not answer. He testified that he did not reply, because he did not understand her. The widow, who did not witness the killing, testified that when he was walking around the premises he looked into the garage, and then went in the direction of his home.
Two of the daughters of the deceased, who were in position to see what was done, both testified that he walked to the road and sat on a log, one saying for some time, the other for several minutes, till the automobile containing their father approached, when he arose and walked to a gum tree in the road. A third daughter did not notice defendant sitting on the log, but testified that as the automobile approached, she looked up, and saw her father returning home.
While the daughters of the deceased were in position to see what occurred, yet they were too far distant to hear what was said. The two boys, who were in the car, however, testified that as it passed the defendant, he cursed their father; that the automobile was then stopped and the deceased asked the defendant what it was that he said. The older boy testified that when the car was stopped, the engine ceased running also, and that his father started to get out of the car, and that he (the son) caught his father’s arm; that he did so because he had heard what defendant had said, but that his father had not.
The three daughters and the older son of deceased testified that as their father was getting out of the automoble, on the driver’s side, with his left foot on the running board and his right foot about to touch the ground, which position caused him to face the defendant, the car having passed him a few feet, the defendant fired the fatal shot. These witnesses testified that their father was not armed. The younger son testified substantially, relative to the shooting, as did the above witnesses, except that he did not describe how his father got out of the automobile.
Beyond that which has been given of the evidence of the defendant, in the beginning of this statement, the rest is to the effect that, when he reached the road, on his return home, after having seen about his hogs, he did not sit on the log'; that when he reached the gum tree and stepped into the road, the deceased came very near running over him; that he said to deceased: “You had better look out; you will run over a good man;” that the deceased cursed him in a very insulting manner; that the car went about six feet, when it stopped; that the deceased had on no coat; that he (the defendant) saw no pistol or gun about him; that the -deceased made two steps toward him, and as the deceased started to him, he said, addressing defendant, “You have got your gun, and I will see if you will use it”; that he (the defendant) then cocked his gun, and raised it, but not to his shoulder, pointing it towards deceased, and telling him to stop; that the deceased stopped, but in doing so put his hand to his hip pocket, and cursing defendant, said, “I am going to kill you”; that he then shot deceased, because he believed his life was in danger, and was expecting trouble with him.
Upon a further consideration of the case, after the rehearing granted, we have concluded that under the evidence we would not be justified in disturbing the ruling of the trial judge holding that defendant was the aggressor, and that the deceased made no hostile demonstration.
Defendant has failed to lay the proper foundation for the admission of prior threats, by failing to show by a preponderance of evidence that the deceased made a hostile dem*951onstration against him of such a nature as to justify him in believing that his life was in danger or that he was in clanger of great bodily harm, and therefore proof of- prior threats, for all purposes for which they are admissible, was properly rejected. State v. Williams, 111 La. 212, 35 South. 521; State v. Thomas, 111 La. 806, 35 South. 914. Mere evidence of such threats as distinguished from proof thereof, is insufficient. When the question arises as to whether a sufficient foundation has been laid for the admission of such evidence, the question is one for the court to determine. State v. Boudreaux, 137 La. 227, 68 South. 422; State v. Golden, 113 La. 791, 37 South. 757; State v. Craft, 118 La. 113, 42 South. 718; State v. Benoit, 144 La. 276, 80 South. 329.
[15] The lower court also properly maintained the objection of the state to this evidence when the offering was made for the restricted purpose of proving who was the aggressor. It is only when the evidence leaves it doubtful as to who made the attack that evidence of prior threats is admissible for that purpose. State v. Miller, 125 La. 254, 51 South. 189.
[16] The defendant also offered to prove prior threats to show why he was armed, and to rebut the presumption of malice. The jury, however, found the defendant guilty of manslaughter. As this verdict implies that defendant acted without malice, it therefore follows that if there was error in the ruling, the error did not injure him.
[17] Defendant filed a motion -for a new trial, in which he presented various grounds for the granting of one, and offered evidence in support of it. As there is no bill of exception showing its overruling and incorporating the evidence offered under it, there is nothing for us to review. State v. Washington, 104 La. 445, 29 South. 55, 81 Am. St. Rep. 141; State v. Napoleon, 104 La. 164, 28 South. 972.
For the reasons assigned, it is ordered, adjudged, and decreed that the decree heretofore rendered by us, in this case, be annulled and set aside; and ’that the verdict of the jury and the judgment of the lower court be affirmed. The defendant’s right to apply for a rehearing, under section 4 of rule 14 of this court (136 La. xii, 67 South, xi), is-reserved.