(dissenting). The opinion and decree handed down on rehearing in this case overrules, not only the original decision rendered in this case, but also our latest previous decision on the subject, without even referring to it, and without assigning any reason, or suggesting any argument, that was not considered and rejected in the previous decision.' I refer, of' course, to State v. Pairs, 145 La. 443, 82 South. 407.
It will be deplored by the legal profession, I say-with great respect, that the judgment of this court should begin again to oscillate upon the question, as it had been oscillating ever since the question was first presented, as to whether a defendant, pleading self-defense, in a prosecution for murder or manslaughter, should be required to establish his plea of self-defense by a preponderance of evidence and to the satisfaction of the presiding judge, before he can introduce eviden.eeof previous threats on the part of the deceased.
In State v. Pairs, supra, decided only two-years ago, it was said that there had been some confusion in our jurisprudence on this subject, and the court therefore undertook to put the matter at rest in this plain and simple language:
“When the defendant in a prosecution for murder or manslaughter pleads self-defense, and the evidence leaves a doubt as to whether he or the deceased was the aggressor in the fatal difficult}', evidence of previous threats on the part of the deceased is admissible to corroborate the evidence for defendant that *953the deceased provoked the difficulty. In fact, proof-of previous threats-on the part of the deceased, in such ease, is not pertinent to any other question than the question as to who was'the aggressor in the fatal difficulty; because threats in themselves do not justify killing the threatener,
“The question whether the defendant or the deceased 'was the aggressor in the fatal difficulty is a question of fact; and, under the plea of self-defense, as in this case, it is the only question of fact upon which depends the guilt or innocence of the party accused. * * *
“For the district judge to withhold from the jurors, and decide for them, a question of fact on which depends the guilt or innocence of the defendant in a criminal case, is a violation of article 179 of the Constitution. And for the Supreme Court to decide suoh a question, is a violation of article 85 of the Constitution. Inasmuch as proof of previous threats on the part of the deceased is not admisible for any other purpose than to show who was the aggressor in the fatal difficulty, when that question is in doubt, it is a begging of the question to say that proof of such threats is not admissible until the defendant has proven affirmatively that the deceased was the aggressor, and that he (defendant) acted in self defense. The effect of such ruling would be to deprive the defendant of the benefit of proof of previous threats on the part of the. deceased, in any and every case whore self-defense is pleaded in justification of a homicide. The defendant in such case, after proving affirmatively that he was justified under the law of self-defense, would have no need of the proof of previous threats .on the part of the deceased.”
The foregoing opinion, in State v. Pairs, was unanimous. A rehearing was granted, and, after a more thorough consideration of the question, the original judgment of the court was reinstated and made final, the chief justice alone dissenting. The opinion was quoted liberally, and with approval, in the original opinion rendered in the present case. The deliberate conclusion of the court was that it would be a violation of article 179 of the Constitution then in force for the district judge, instead of the jury, to decide who was the aggressor in the fatal difficulty ; and that it would be a violation of article 85 of the Constitution then in force for this court to decide who was the aggressor in the fatal difficulty. It is not possible that these rulings escaped the attention of the Constitutional Convention of 1921; for two members of this court were members of the convention and of the judiciary committee that drafted the articles to correspond with articles 85 and 179, respectively, of the Constitution of 1913. One of those two members of the court, who was chairman of the judiciary committee, was the presiding judge in the trial of the case of State v. Pairs. The original Opinion in the present ease, approving the doctrine of State v. Pairs, was rendered while the Constitutional Convention was in session and before the judiciary ordinances were adopted. There is therefore no reason to doubt that, if the members of the Constitutional Convention of 1921, or a majority of them, had not approved of our interpretation of articles 85 and 179 of the Constitution then in force, these provisions of the Constitution would have been changed so as to confer upon this court, and upon the judges of the district courts, jurisdiction to decide, in a homicide case in which the defendant pleads self-defense, the question as to who was the aggressor in the fatal difficulty.
We must not overlook the fact that this court, only a year and a half before the convention assembled, and again while the convention was in session, declared that article S5 of the Constitution then in force deprived this court of jurisdiction to decide the question as to who was the .aggressor in the fatal difficulty, in a criminal prosecution for murder or manslaughter, where the defendant pleaded self-defense; and declared that article 179 of the Constitution then in force deprived the district judges of jurisdiction to decide who was the aggressor in such cases. In the light of these rulings, the convention of 1921 retained, in the seventh paragraph of *955section 10 of article 7, the exact language of article 85 of the Oonstitution of 1918, viz.:
“The appellate jurisdiction of the Supreme Court shall also extend to criminal cases on questions of law alone,” etc.
And the convention retained, in section 9 of article 19 of the Constitution of 1921, the exact language of article 179 of the Constitution of 1913, viz.:
“The jury in all criminal cases shall be the judges of the law and of the facts on the question of guilt or innocence, having been charged as to the law applicable to the case by the presiding judge.”'
In that respect, the provisions of the Constitution of this state, and of the United States, and of every one of the United States, for that matter, are mere embodiments of the common law, that, in criminal prosecutions, the jury has exclusive jurisdiction over questions of fact pertaining to the questions of guilt or innocence of the party accused.
All that is said in justification of the overruling of our original opinion in the present case is -contained in the following paragraphs of the opinion rendered on rehearing, viz.:
“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 the 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 demonstration against him of such a nature as to justify him in believing that his life was in danger, or that he was in danger 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. 357; State v. Craft, 118 La. 118, 42 South. 718; State v. Benoit, 144 La. 276, 80 South. 329.
“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.
“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.”
Tile court does not even refer to the decision in State v. Pairs, which, in effect, overruled the decisions which are cited in the opinion handed down on rehearing- in the present case. Nor does the court expressly overrule, or even refer to, any other of the decisions which stand in direct conflict with the opinion rendered on rehearing in the present case. The decisions which are cited in this opinion, from which I respectfully dissent, are, for the most part, not authority for the doctrine in support of which they are cited, as I-shall now undertake to demonstrate.
In State v. Williams (the first case cited), the ruling was that evidence of the dangerous character of the prosecuting witness was not admissible, because, said the court, '“there had been no testimony offered to prove any overt act.” All that was said on that subject is:
“The next point urged by the defense arose out of the refusal of. the trial judge to permit the defendant, on objection of the prosecuting attorney, to prove the character of the deceased.
“The court a qua reviewed the testimony offered, commented upon it, and annexed part of it to its statement.
“The question here is largely within the court’s discretion. It states emphatically that there had been no testimony offered to prove *957any overt aet on the part of the prosecuting witness; that the accused was the aggressor.”
The expression, in the first paragraph quoted, “to prove the character of the deceased,” was, manifestly, an error, because the defendant was prosecuted for shooting with intent to murder, and was found guilty of shooting with intent to kill. The ruling, that evidence of the dangerous character of the person who was shot was not admissible until some other evidence was offered to show that he was the aggressor in the difficulty, was in line with the opinion of all of the text-writers on the subject, and in line with the jurisprudence of this court. State v. Demareste, 41 La. Ann. 618, 6 South. 136; State v. Mitchell & Dunn, 41 La. Ann. 1073, 6 South. 785; State v. Paterno, 43 La. Ann. 514, 9 South. 442; State v. Wilson, 43 La. Ann. 849, 9 South. 490; State v. Bryan, 138 La. 338, 70 South. 318. But these decisions are not authority for the proposition that evidence of previous threats on the part of the deceased is not admissible when there is some other evidence from which the jury might conclude that the deceased was the aggressor in the fatal difficulty.
In State v. Thomas, 111 La. 804, 35 South. 914 (the second case cited in the opinion from which I dissent), it was conceded by defendant’s counsel that no foundation had been laid for the introduction of proof of prior threats on the part of the deceased. The evidence of the previous threats was offered only as a part of the res gesta. The court said:
“Defendant also complains of the lower court’s refusal to allow him to prove threats. The ground of the refusal was that proper foundation had not been laid by proof of an overt act. Defendant’s insistence is, not that a proper foundation was laid, but that without the laying of a foundation the evidence was admissible as part of the res gestee and in mitigation.
“The time when the alleged threats were made is not otherwise specified than that it was ‘recently.’ This may mean hours, days, or, for the matter of that, months, before the fatal occurrence. Evidently, under these circumstances, the alleged threats are not shown to have been part of the res geste.”
In State v. Boudreaux (the third case cited in the opinion from which I dissent), the record did not disclose that all of the evidence heard on 'the question of the overt act was brought up on appeal; hence the court found that it was “therefore impossible for this court intelligently to review the ruling complained of.” The court did, however, rule in accord with the ruling from which I now dissent. But the first decision cited in support of the ruling, State v. Kellogg, 104 La. 580, 29 South. 285, was not in accord with the decision in State v. Boudreaux. Moreover, only three members of the court concurred in the decision in State v. Boudreaux. The writer handed down a dissenting opinion, which was concurred in by the present senior associate justice. See, State v. Boudreaux, 137 La. 227, 86 South. 425.
In State v. Golden (the fourth case cited), it is true this court reviewed the testimony on the question as to who was the aggressor in the fatal difficulty, but the court came to the conclusion that a proper foundation had been laid for the introduction of evidence of a previous difficulty had between the parties, and of the dangerous character of the deceased ; and the court therefore set aside the verdict. In that connection, the court said:
“If the matter at issue be one of fact bearing ‘on the question of guilt or innocence’ of the accused, its decision, by the terms of the Constitution (article 179), rests with the jury, and the trial judge has no authority to decide it, and, if it be anything less or more than, that, and is properly ruled upon by the trial judge, then, assuredly, it * * * may be brought to this court by appeal.”
Now, I respectfully submit, and it can be demonstrated, that the question as to who was the aggressor, where the defendant pleads self-defense, in a homicide case, is a *959question of fact- “bearing on tbe question of guilt or innocence.” 'For, if the defendant in such case must prove, as held in the opinion from which I dissent, “that the deceased made a hostile demonstration against him of such a nature as to justify him in believing that his life was in danger, or that tie was in danger of great bodily harm,” before the defendant can introduce evidence of previous threats on the part of the deceased, it follows that the defendant must prove, to the satisfaction of the trial judge, that he is entitled to an acquittal, before he can introduce evidence of previous threats made by the deceased. If the trial judge should be satisfied that there was a preponderence of evidence— in fact, if the judge should have a reasonable doubt: — “that the deceased made a hostile demonstration against him (the party accused) of such a nature as to justify him in believing that his life was in danger, or that he was in danger of great bodily harm,” the judge would be bound to set aside the verdict if the jury should convict. For the defendant would then be entitled to an acquittal, under the law of self-defense, without any evidence of previous threats made by the deceased. The judge’s ruling, in such case, admitting the evidence of previous threats made by the deceased, would be tantamount to his saying that the defendant had made out a case of self-defense, without any evidence of previous threats made by the deceased; and it would then be altogether unnecessary for the defendant to introduce evidence of the previous threats, after the judge had ruled that the evidence was admissible. And yet we know that the defendant does riot bear the burden of proof of self-defense. The burden is upon the state to prove, beyond a reasonable doubt, that the homicide was committed feloniously and not in self-defense. See State v. Andy Johnson (No. 24758) 90 South. 2571 (handed down on the same day on which the decision from which I now dissent was handed down), citing State v. Ardoin, 128 La. 14, 54 South. 407, Ann. Cas. 1912C, 45; State v. Varnado, 128 La. 883, 55 South. 562; and State v. Herring, 131 La. 972, 60 South. 634.
Act 113 of 1S9G, which requires that, when an objection is made to the judge’s ruling in a criminal trial, the clerk of court shall take down the facts, to be embodied in the transcript in case of an appeal, does not mean that this court shall decide the question of fact if it bears upon the question of guilt or innocence of the party accused. If the statute were susceptible of -that meaning, it would be, to that extent, unconstitutional. This statute has been discussed and interpreted more than 30 times, during the last 25 years, and has never yet been regarded as purporting to confer upon this court jurisdiction to decide questions of fact bearing upon the question of guilt or innocence, in violation of the Constitution. The statute, in such case, enables this court merely to examine the facts and determine whether the question, as to who was the aggressor in the fatal difficulty, was an issue in the case. If it was an issue, the issue was one for the jury to decide, and the evidence of previous threats made by the deceased was admissible for determining, as far as it might aid in determining, that issue..
In State v. Craft (the fifth case cited), the defendant and another witness testified that the deceased had made a hostile demonstration, attempting to kill the accused; and two other witnesses testified that the deceased had not made any. such demonstration. The district judge, saying that he gave more credence to the testimony of the two witnesses for the state than to the testimony of the defendant and the witness in his behalf, said that tie “reached the conclusion that the overt act had not been established with sufficient certainty to warrant the admission of *961the evidence ruled out,” i. e., evidence of a previous difficulty between the accused and the deceased- In other words, the judge himself passed judgment upon the credibility of the testimony on this important question of fact, bearing upon the question of guilt or innocence. The decision, sustaining the ruling, is therefore in direct conflict with the Constitution, and it ought to be considered as having been overruled by the decision to the contrary in State v. Pairs.
In State v. Benoit (the sixth case cited in the opinion from which I dissent), the reference to our “uniform jurisprudence” on this subject sounds like irony, viz.:
“The uniform jurisprudence in this state is to the effect that evidence of previous throats or of the dangerous character of the deceased, on the trial of a prosecution for murder, is not admissible until an overt act or a hostile demonstration has been proven to the satisfaction of the trial judge. See State v. Boudreaux, 137 La. 227, 68 South. 422.”
The very first decision cited in support of that proposition, in State v. Boudreaux, is State v. Kellogg, 104 La. 580, 29 South. 285, in which the court referrred to and virtually overruled the decision in State v. Ford, 37 La. Ann. 443, in this vigorous language (104 La. 599 and 600, 29 South. 285, 294), viz.:
“It is true that in the case of State v. Ford, 37 La. Ann. 443, the jurisdiction, which, as we have seen, is vested in the trial judge, with respect to collateral facts, was held to extend to facts bearing upon the question of guilt or innocence, and that precedent has been followed in later oases. A careful reconsideration of the subject has, however, led to 'the conclusion that our fundamental law requires that, where it becomes necessary to determine the question of the existence vel non of any fact hearing upon the guilt or innocence ■of the accused in a criminal case, such question should be submitted to the jury, provided there is any evidence tending to establish such fact.”
The evidence of previous threats on the part of the deceased, in Kellogg’s Case, was ■excluded, because there was no evidence whatever of a hostile demonstration on the part of the deceased, and because, in fact, the defendant, in his testimony, admitted that there was no hostile demonstration on the part of the deceased. But this court took occasion to say (104 La. 600, 29 South. 285) that the ruling should have been different if the defendant had testified that there was a hostile demonstration on the part of the deceased at the time of the killing.
Speaking of “the uniform jurisprudence” on this subject, the ease of State v. Kellogg is not the only one in which this court has dealt with this question logically and decided in accord with the requirements of the Constitution.
The decision in State v. Cancienne, 50 La. Ann. 847, 24 South. 134, is very much in point. The defendant found a man in a room with his (defendant’s) wife, and ■ immediately shot the man; whereupon defendant’s wife rushed upon him and tried to disarm him, at the same time calling to the man who was shot. During the struggle for the pistol, defendant drew a razor and cut his wife’s throat, killing her. He was indicted and tried for murder and was convicted of manslaughter. The trial judge ruled that evidence of the superior strength of the woman was not admissible, because, in his view of the testimony, the defendant was the. aggressor in the fatal difficulty. Reversing the ruling, this court said:
“It is possible that appellant had no good substantial ground for believing his life to have been in danger at that time and through his wife’s conduct, but that was a matter for the jury to determine.”
In State v. Stockett, 115 La. 743, 39 South. 1000, the rule was stated in a somewhat modified form, viz.:
“And perhaps in all cases where several witnesses testify to an overt act, the safer course would be to leave the question vof their credibility to the jury..”
*963In State v. Rideau, 116 La. 245, 40 South. 691, the defendant shot and killed his uncle, without a word having passed between them, while the latter, unarmed, was entering defendant’s bedroom. On trial for murder, defendant pleaded self-defense and offered evidence of threats made by the deceased on the day before the homicide and evidence of the dangerous character of the deceased. The evidence was excluded, and, on appeal, the ruling was reversed, on the ground that the evidence of previous threats and of the dangerous character of the deceased was admissible to show whether his conduct, at the time of the killing, might reasonably have been regarded by the accused as being hostile and menacing to him.
. Adverting again to the case of State v. Boudreaux, supra, let me call attention to the fact that the Oolumbia Law Review, vol. 16, No. 1, January, 1916, commented twice (pages 57 and 72) upon the decision, and, in each instance, regarded it as authority for the proposition merely that the appellate court could not intelligently review the ruling of the trial judge because only a portion of the evidence appeared in the transcript; and, commenting upon our want of a “uniform jurisprudence” on this subject, the editor said:
“For a critical comparison of the holdings of the Louisiana courts, see 1 Wigmore, Evidence, § 246, n. 13, p. 312.”
Turning to the page of the book referred to, we find that Prof. John Henry AVigmore gathered up more than two columns of conflicting decisions by this court, and showed how the judgment of . the court had staggered from one side to the other, on this question of proof of an overt act; and, at the end of the list, we read this criticism of our so-called “uniform jurisprudence,” viz.:
“From this maze of twisting precedents, which none but a Louisiana practitioner should be condemned to unravel, four conclusions may be ventured: * * * (4) The court of Louisiana had still, in the above period, to learn two truths essential to the successful administration of justice: First, that the fundamental duty of. a Supreme Court is to be familiar with its own decisions, and either to repeat them or to overrule them, but not to ignore them.”
Turning to page 184 of the same volume, we find this expression by Prof. Wigmore, regarding the rule of admissibility of evidence of previous threats on the part of the deceased, viz.: “In some jurisdictions, it is impossible to ascertain the exact rule.” The-only footnote to that expression is: “As in Louisiana.”
I submit, therefore, with great respect, that, in. so far as the opinion rendered on rehearing in this case is founded upon a supposed “uniform jurisprudence,” it wilL not bear the test.
In this opinion, on rehearing, from which I dissent, the court cites the case of State v. Miller, 125 La. 254, 51 South. 189, in support of the proposition:
“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,” meaning, “for the restricted purpose of' proving who was the aggressor.”
The rule, that evidence of previous threats on the part of the deceased is admissible-for the restricted purpose of showing who was the aggressor in the fatal difficulty, wlien the evidence otherwise leaves a doubt on the-question, applies only to uncommunicated threats; which, as a general rule, are not admissible at all. But the decision cited, State v. Miller, is not authority even for that doctrine, because, as the court found, the evidence offered was not of a threat, but was merely an irrelevant statement made by the-witness herself, a sister of the deceased, soon after the homicide. For that reason, the-court said that the case was not within the rule announced in State v. Barksdale, 122 La. 788, 48 South. 264.
In the case last mentioned, the rule re*965garding uncommunicated threats was stated thus:
“In a prosecution for manslaughter, uncommunicated threats, made by the deceased against the accused shortly before the homicide, are admissible in evidence as tending to show who was the aggressor in the fatal encounter and as supporting the plea of self-defense.”
There were two previous decisions of this court, sustaining the proposition that uncommunicated threats are admissible for the restricted purpose of showing who was the aggressor in a homicide case, when that question is an issue before the jury. State v. Williams, 40 La. Ann. 168, 3 South. 629; and State v. Lindsay, 122 La. 375, 47 South. 687. The restricted purpose for which evidence of such threats is admissible applies only to uncommunicated threats, because proof of uncommunicated -threats could not uossibly serve any other purpose than to indicate that the deceased was the aggressor in the fatal difficulty. But evidence of communicated threats also serves that purpose, as well as the purpose of showing why the defendant was armed or otherwise prepared for trouble, and why he was better justified in believing that his life was in danger, than if he had not heard of the threats. When it is said that evidence of uncommunicated threats is admissible for the restricted purpose of showing who was the aggressor, when that question is in doubt, the meaning is, of course, when that question is at issue before the jury; because the jury alone must determine whether there is a reasonable doubt as to who was the aggressor; and it is upon that question alone that the evidence of uncommnnicated threats is admissible. Eor the same reason, communicated threats are admissible in evidence for the purpose of showing who was the aggressor in the fatal difficulty, when that question is presented, by the introduction of other evidence, as an issue for the jury to decide.
It is said in the opinion rendered on rehearing in this case that the excluding of the evidence of previous threats when offered for the purpose of showing why the accused was armed, and to show that there was no malice on his part, did no harm, because the jury found the accused not guilty of murder but guilty of manslaughter. “Voluntary manslaughter”, is universally defined, substantially, as the felonious killing of a person, not with malice aforethought, but in the heat of passion and on immediate provocation. In this case, therefore, the jury, without any evidence of the previous hostile threats made by the deceased, found that there was immediate provocation for the killing. The provocation, of course, was the conduct of the deceased at the time of the killing; for the jury had not the benefit of any evidence of any previous provocation, as _ of the previous threats made by the deceased. I submit, therefore, that the jurors found that there was some hostile conduct on the part of the deceased at the time of the killing. If they had heard the evidence of the previous threats on the part of the deceased, they might have concluded that the defendant was justified in his fear and belief that the deceased was about to carry out his threats-It is not for us to say what effect the evidence on that question of fact, on which depended the guilt or innocence of the defendant, might have had on the mind of any juror: It was a question for the jury alone to decide, right or wrong.
It has been said, in several of the opinions that accord with the one from which I now dissent, that the Legislature has not seen fit to say that the. trial judge or this court has not the authority to decide -the question of fact as to who was the aggressor in a homicide case. My answer is that the Legislature could not grant that authority or jurisdiction without violating the mandate of the Constitution. And there is no tribunal that *967could point the way' any plainer than the Constitution itself has made it.
On Application fox- Seeoxxd Rehearing.
PER CURIAM.[18] The judgment of the court on the original hearing in the case of State v. Pairs, 145 La. 443, 82 South. 407, was not intended to be a departure from the established jurisprudence on the point of a foundation having to be laid, by proof of an overt act, for opening the door to the admission of evidence of previoxis threats. It appearing to be so, however, to the Attorney General, a rehearing was granted on his application; and on the rehearing the court sought to make plain that what was decided in the case was, not that an overt act did not have to be shown, but that, under all the circumstances of that case, the conduct of the •deceased constituted an overt act.
Speaking of the evidence of previous threats, Mr. Wigmore, in his monumental work on Evidence, says, at page 313:
“Considerations of public policy call fox-some restrictions calculated to secure the bona fide use of such evidence. These may be, and frequently are, the same as those applied to the use of the deceased's character.”
And with regard to evidence of the character of the deceased, he says, at page 308:
“These considerations * * * have induced a few courts to decline to recognize this evidence at all. The others have usually laid down certain conditions intended to prevent its abuse. A common limitation is the broad one that other evidence shall be offered which serves to bring self-defense faix-ly in issue-some appreciable evidence of the deceased’s prior aggression, or of ground to believe in impending aggression — fox- it is not always clear which is judicially meant. By some courts it is said (more strictly) that the issue of self-defense (i. e., presumably, the impending of an attack), must be in doubt. Another and more specific form of limitation is the doctrine of ‘overt act,’ peculiarly developed in Louisiana and Florida. * * * This is a wise and fair limitation. * * * ”
The learned author recognizes iiere the development of the doctrine of “overt act” in this state.
O’NIELL, J., adheres to his dissenting opinion.