The opinion of tlie Court was delivered by
Poems, J.Tlie defendant appeals from a conviction of murder without capital punishment, and he relies on errors to his detriment, which lie sets forth in seven hills of exception.
All the grounds of his complaint, although embraced and detailed in numerous bills, may easily be summarized into and discussed under tlie beading of one general principle.
The-pivotal point of bis complaint involves tlie alleged error of the trial judge in excluding the testimony of several witnesses, by which the accused intended to show repeated threats against his life by the deceased, and a conspiracy between the latter and another person to kill the accused by waylaying him, and thus to perpetrate a coldblooded assassination.
The reasons of the judge for his course are included mainly in the ■first bill, to which he refers in all the subsequent hills contained in tlie (record.
Tlie substantial ground which lie advances is the failure of the ac■cused or of his counsel to have laid the proper foundation for such proof, by showing that the deceased had made some assault on his slayer or some hostile demonstration against him at the time of, or immediately preceding, the killing.
Tlie judge informs us in his statement subjoined to the bill, that the .proffered evidence had reference to alleged threats and acts which had preceded the homicide by several days, and that no proof had been made of an apparent intention of the deceased to carry any of the ■alleged threats into execution when he- met the accused on the occasion -of the homicide; the meeting took place in a prairie in broad daylight, and the deceased was shot down by the defendant, in the very .act of begging for his life.
Such proof of the manner in which the homicide occurred, in the .absence of any proof of any preceding assault on his slayer or of any •hostile demonstration against him, on tlie part of the deceased would, in the light of well settled jurisprudence, seem to have left to the trial judge no other alternative hut to exclude the proffered testimony.
But counsel for the accused submits that the judge is in error in his Appreciation of preceding evidence which did show hostile demonstra*22tions on tlie part of the deceased and of his co-conspirator, against the accused, when they all three met in the prairie.
And counsel further argues that the trial judge simply usurps the-functions of the jury when he claims the right of judging of the nature of the evidence as preliminary to the introduction of test ini ony of alleged threats on the part of the deceased. The argument is cpiite obsolete when tested under the established rules of criminal jurisprudence.
This question was maturely considered by ns in the recent case of Ford, 37 Ann. 443, which has perhaps not yet reached counsel for the accused. We said on that subject: “In passing on such a question, the trial judge must of necessity be clothed with the authority to decide whether a proper foundation has been laid for the proffered evi dence, and that authority necessarily includes the discretion to ignore- and not consider testimony which his reason refuses to believe.”
We will not do the injury to the district judges of the State of supposing, with counsel for the accused, that any one of them can be found, so devoid of all sense of duty as to secure conviction of an accused by designedly excluding testimony which might be favorable to him. If there be such a judge, 1ns case should be dealt with in other-proceeding, for which the Constitution has made ample ju'ovision, but the issue cannot be met in an appeal which merely involves the correctness of his ruling's.
The rule laid down in the Ford case was not without precedent, ar.d it has been subsequently followed by this Court. State vs. Labnzan, 37 Ann. 490; State vs. Janvier, 37 Ann. 644.
In the case of Janvier the district judge was upheld in his admitted refusal to give credence to the statements of two witnesses in support of a hostile demonstration, on the ground that their testimony appeared “improbable in itself, and inconsistent with all the proven facts and circumstances of the case.” '* * *
In one of the bills the trial judge is charged with error in excluding testimony tending to show that two days before the homicide the defendant had stated to the proffered witness that tlie deceased and his co-conspirator were lying in wait in tlie woodsfor the accused, and that tlie latter was actually afraid to go by alone. What a con venient defense would there be afforded to murderers in their yearning desire to remove their enemies ! Counsel’s argument that-such a statement, ijiade two-days before tlie killiog, is admissible as evidence to show the state of the mind of'the accused, needs no other refutation than amere mention.
The same answer is sufficient to meet the complaint against the exclusion of testimony consisting of a statement of the accused to the-*23witness a short time before the killing, that his object in going to that spot was to lmnt for a lost pistol. Tt was by no means part of the re$= gestm, as erroneously argued by counsel, and surely the witness could, not know the object of the accused in going to that praiiie at that particular time. State vs. Ford, 37 Ann. 462.
Our examination of the record has disclosed to our entire satisfaction that the accused had had a fair and impartial trial.
Judgment affirmed.