The opinion of the Court was delivered by
Fenner, J.The only error claimed appears on a bill of exception taken to the ruling of the court excluding-evidence as to the dangerous character of the deceased. The bill contains averments going to show a hostile demonstration or assault by the deceased, which might have supported the introduction of the evidence; but the State objected “on the ground that no assault had been established and that two witnesses for the State had previously sworn that deceased was walking quietly along, no pistol being drawn or demonstration made, and that defendant’s witness did not state accused went towards him drawing a pistol.”
The judge having before him the two statements of accused and of counsel for the State, gives as his reason for excluding the evidence, “that, an assault was not sufficiently shown.”
It is elementary that evidence of dangerous character of the deceased is inadmissible, unless the foundation has been laid by proof of some assault or hostile demonstration on the immediate occasion of the killing. State vs. Jackson, 33 Ann. 1087; State vs. Claude, 35 Ann. 71.
The judge must determine whether such foundation has been laid, and when liis statement shows that the proof did not sustain it, we are bound to accept it. State vs. Ford, 37 Ann. 443 ; State vs. Janvier, 37 Ann., not yet published.
Under this view we cannot, reverse the ruling.
Judgment affirmed.