On Application eor Rehearing.
Nioholls, O. J.Upon an application by the defendant for a rehearing, ably presented and forcibly argued, we carefully reconsidered the grounds upon which we rested our opinion. This re-examination confirmed us in the correctness of our views, save upon one subject, as to which we requested and have heard oral argument. The questions reargued are contained in and covered by several bills of exception.
After the jury had been empaneled and sworn and the indictment had been read, the defendant’s counsel asked the court that “all the evidence material to the following points be reduced to writing and made part of the record, to-wit: Por the purpose of showing an overt act upon the part of the deceased at the time of the killing and before any assault was made by the defendant. Por the purpose of laying the foundation for the introduction of evidence of communicated threats. Por the introduction of uncommunicated threats. Por the purpose of introducing evidence of the general character of the deceased as a dangerous, violent and quarrelsome man. Por the purpose of applying the evidence so taken to special charges to be asked for by the defendant when the court should come to charge the jury. And upon all collateral questions that might arise during the progress of the trial affecting the admis*209sibility of evidence, and npon all rulings by the court founded on evidence.”
The district judge refused the request on the ground “that in criminal trials all the proceedings, except the indictment and charge to the jury, are conducted orally, and the accused has no right to require the testimony to be taken down in writing. State vs. Duncan, 8 Rob. 562, and I (the district judge) am not referred to any law which compels the court to depart from this mode of procedure, even for the special purposes mentioned.”
To this refusal the defendant duly excepted.
The case quoted by the district judge (State vs. Duncan) is one in which an attempt was made to have the testimony which went to the jury reduced to writing. The statement made by the judge, that in a criminal case testimony can not be taken in writing for any of the special purposes mentioned, was too broad, but his action in overruling the motion in the form in which and at the time it was made was correct. Defendant had no right to make the request in advance of the offer of the witnesses by whom he expected to establish the facts npon which he was relying, and especially did he not have the right to virtually impose upon the judge the duty of selecting from the whole mass of the testimony those parts which he desired to preserve in writing.
At a later stage of the case, after the State had closed and before the defendant had begun the introduction of evidence in his defence, he asked that the testimony of several witnesses, including himself (naming them), should be reduced to writing in order that it might be made part of the record in the case for the purpose of showing who began the attack in the difficulty on the occasion in which the deceased was killed, and for the purpose of laying the foundation for the introduction of threats, communicated and uncommuuieated, and for the purpose of introducing evidence of the character of .the deceased as that of a dangerous, quarrelsome and vindictive man. This application was refused, the judge stating “ the reasons for not reducing the testimony to writing, and for rejecting evidence to prove communicated threats and the desperate and dangerous character of the deceased, without proof of some overt act or hostile demonstration on his part, have already been given in other bills, and are referred to as reasons for the ruling in the instant one. So far as concerns the testimony of the witnesses *210offered to show whether accused or deceased began the attack, it is sufficient to say that these witnesses actually testified before the jury on this point, but the court did refuse to permit their evidence tobe reduced to writing, and refused to receive evidence of communicated threats or bad character until some overt act was proved, which was not done.”
In one of the bills of exceptions to which the judge refers for his reasons, he said, in excluding testimony offered to prove uncommunicated threats: “The evidence failed to prove to the satisfaction of the court that deceased commenced the attack, or did any overt act or made any demonstration of an attack. There was some evidence tending to show a hostile demonstration on the part of the deceased, yet it appeared to the court from all the facts and circumstances, and specially from the testimony of three persons (naming them) who were eye-witnesses of the affray, and saw it from its inception to its close, that no hostile demonstration had been proved. Whether it had or not been proved was a question to be decided by the court alone, which is necessarily vested with the discretion to disregard testimony it deems unworthy of belief. State vs. Ford, 37 An. 443; State vs. Janvier, 37 An. 644; State vs. Jackson, 37 An. 896; Schwartzvs. Crescent City R. R. Co., 30 An. 20.”
In another bill refusing to allow testimony of communicated threats the judge said: “Tt is true that some evidence was offered to show an overt act and hostile demonstration on the part of deceased, but this testimony for reasons to be stated hereafter was disregarded by the court as unworthy of belief.” Repeating the declaration made before by him that whether a foundation had been laid for receiving the rejected testimony was a question to be determined solely by the court, which is necessarily vested with discretion to disregard testimony it deemed not worthy of belief, the judge proceeded to recite and analyze the testimony given in the case from which he drew his conclusions on which his rulings were based.
In his motion for a new trial, defendant, among other reasons upon which he grounded the same, relied upon the rulings of the judge in the matter just referred to, and the bills of exceptions taken thereto. The new trial was refused. In his reasons for refusing, the district judge in alluding to the decisions of this court in State vs. Nelson, 32 An. 842; State vs. Seiley, 41 An. 143, and that in this case on the first appeal, said: “The rulings in those eases were *211made upon questions purely collateral to the main issue, upon the decision of which they had no bearing whatever. It did not require the court to go into an examination of any evidence touching the merits of the prosecution. It was not called upon to have or express an opinion touching the weight of the dying declarations, and whatever might be the conclusion as to the competency vel non of a juror that conclusion could not affect the result of the trial. Hence the reduction of the testimony on these collateral points to writing, although it was clearly an innovation upon the ancient practice of the courts and a\ owedly excused on the ground of convenience, could produce no greater harm than to prolong and increase the costs of the trial. But where it is proposed to extend this rule so as to embrace evidence going directly to the merits, to proceedings arising in the course of the trial before the jury, and to review the findings of the judge on questions of fact, the determination of which is necessarily confided to his discretion as a basis for his rulings on the admissibility oftestimony, we may well call a halt. This case illustrates the necessity of calling a halt. Defendant claims the right to have all the evidence reduced to writing which bears upon the fact of an overt act. ’ ’
“ The fact vel non of an overt act is a point of vital importance to the result of the prosecution. It is visceral in its nature, for upon it depends the guilt or innocence of the accused. He pleads self-defence, which admits the killing, but excuses it on the ground that it was done to protect life. To maintain this plea he must show an actual assault at the time of the killing (State vs. King, 22 An. 454), made under such circumstances as denoted a present intention to take life or do great bodily harm (State vs. Swift, 14 An. 827). An actual assault with a deadly weapon, with apparent intent to kill, made at the time of the homicide, is the overt act known to the law, and pr^of of such act is essential to self-defence (Ford Case, 87 An. 444) .”
“ Any inquiry into the existence of this act necessarily involves an inquiry into the merits of the prosecution, and if the right to have the testimony on this point reduced to writing be conceded, it must be conceded on every other disputed point. Again, if defendant has the right to have this evidence in writing before the appellate court, the latter must have the correlative right to pass upon the evidence and judicially decide upon its sufficiency to establish *212the fact essential to conviction or acquittal. It would in that event have the right to decide that an overt act had been proved, and if it did so decide, it would unquestionably say to the jury, “ Your verdict is wrong; it is contrary to the law and the evidence, and for that reason we will set it aside, and inasmuch as defendant has established his plea of self-defence at this trial, the jury on the next trial is instructed to acquit should the same evidence be then produced.”
If the defendant has any cause of complaint in this case, it is that under its facts he was entitled to introduce testimony to prove communicated and uncommunicated threats and the dangerous character of the deceased, that he has been unjustifiably deprived of that right, and as the effect thereof he has been legally injured. The objections urged by him to the action of the court in refusing to permit the reduction of certain testimony to writing are merely incidental to and in aid and support of the real grievance which is set up. If in this State evidence as to communicated and uneommunicated threats and as to violent character became ipso facto admissible by the fact that one or more witnesses testified directly as to the existence of an overt act on the part of the deceased, this case would present no difficulty whatsoever independently of any question of the reduction of the testimony to writing, for it is conceded by the district judge ■ that there was such testimony, but the practice in Louisiana has not been to permit evidence upon those points to be introduced and go to the jury simply because one or more witnesses may have given testimony to the effect that the deceased had committed an overt act. The practice has been for the district judge to determine whether or not there was in the evidence in the case as a whole, evidence which would tend and go to establish legally the overt act, and upon his conclusions on that point has been made to depend and rest the admissibility of the testimony.
In dealing with that question the right of the judge to consider the credibility of the different witnesses has been repeatedly recognized by this court. It may be that this practice lodges a power too great in the judge and works wrong to accused parties, as there is great difficulty in reaching and reviewing the action of the district judge. It may be as res nova that it would have been better to have held that the moment one or more witnesses testify to an overt act that testimony of threats and character should ipso facto be admis*213sible and should go to the jury, to be weighed and determined by it with other circumstances of the case, but certainly since the Ford •case that has not been the practice. The right to have this particular kind of testimony admitted is not in this State considered absolute. It is only exceptionally admissible, and the condition precedent upon which it is admissible is that the judge should have ruled that under the evidence as a whole the question of the overt act had ■become a relevant fact in. the ease. Defendant’s counsel was well aware of the legal position on this point, and hence came his efforts to place matters in a shape such as to enable us to reach and review the conclusions of the district judge.
Has he accomplished his purpose?
The first and proper place for us to seek for information as to -whether defendant has been aggrieved by the exclusion of testimony •as to threats and character is in the bill of exceptions reserved upon the ruling of the judge on that particular question.
An examination of that bill shows that the judge admits and declares that Barnett and one Gardner had testified that immediately upon the entrance of Nash (the defendant herein) into a station where the deceased was standing, the latter at once fired a pistol at him, and Nash’s fire was a return fire. He, however, declares that Gardner is a relative of the defendant, and Barnett is now under indictment, charged jointly with the defendant with the murder of the deceased MeCort, and he declares them, in his opinion, unworthy of belief. He further states that their testimony was positively contradicted by three reputable witnesses who saw the whole affair from beginning to end. The judge, as we have before said, gives a statement of different facts, sworn to on the trial, and applyingthe testimony of Barnett and Gardner to these facts, and then the testimony of the other three witnesses to these facts, declares that, in his opinion, there was no such evidence of an overt act as would justify the introduction of testimony as to threats or character. Taking as true the statements made by the judge as to the evidence, we discover no error of law in his ruling. But, says the defendant, we ought not to take this statement as to the evidence as conclusive; that in point of fact it is erroneous, and had he been permitted to do what he unsuccessfully attempted to do in the lower court — taken down the testimony of Barnett and Gardner in writing — that testimony, when •brought up, and if brought up, would have established affirmatively *214the incorrectness of the statements; that we must assume so for the purposes of this case.
We do not see that “ writing ” could or would more directly and positively disclose what those witnesses swore to than the admissions of the judge. Those witnesses, beyond question, swore that the attack was begun by the deceased’s shooting at MeOort. There is no difference of opinion between the district judge and the counsel on that point. The divergence between them commences as to the effect of that testimony. Counsel for defence has overlooked the fact that whilst he offered to take down in writing what his own two special witnesses might swear to, he did not, at the same time, attempt to have taken down that of the three witnesses whom the judge refers to, and upon whose testimony he mainly formed his opinion. It is not claimed that the recital by the judge of what those three witnesses swore to was not absolutely correct, nor that the various other facts to which the judge alludes were not positively established. We must assume that, so far, at least, as the testimony going to disprove the overt act was concerned, the judge’s statements are true, and in reaching any conclusion as to his rulings we could not ignore his statements. We certainly could not exclusively consider what defendant’s witnesses, one or more, may have sworn to and disregard what the State’s witnesses swore to, for we would take a one-sided view of the situation by such a course.
If we assume in this case ihat the judge had permitted the evidence of Barnett and Gardner to have been taken in writing, and he had for the purposes of defendant’s exception embodied that testimony in full in the bill, leaving the remainder of the bill just as it is, in what way would defendant’s cause be advanced? We would still have before us the judge’s statements as to the evidence on the other side of the question, as to the correctness of which there would be no issue, and we would be forced on the whole question to adjudge the judge’s course not to be error. Had defendant controverted the statement of the judge as to what the three witnesses whose testimony was unfavorable to defendant had said, and had he endeavored unsuccessfully to have had that testimony taken down, his position would have been much stronger than it is. That testimony for obvious reasons was not sought to be perpetuated. Assuming that the judge should have permitted the reduction of Bar*215nett’s and Gardner’s testimony to writing and that he erred in de- ' dining to do so we would still have a ease of error without injury, for on the showing made in the bill of exception we would have to maintain the exclusion of the testimony as to threats and character.
In the case at bar all the evidence on the subject of the overt act went before the jury — and as in spite of the testimony of Barnett and Gardner the jury returned an unqualified verdict of murder, it is evident that it must have placed on their testimony the same estimate that the judge did. This fact is not of course conclusive, but it goes far to sustain the opinion of the judge as to the credibility of those witnesses. Testimony as to threats and character are not introduced here to go to establish the overt act, but the overt act having been proved this testimony is permitted to be introduced to supplement the other evidence in the case.
For the reasons herein assigned our former judgment must remain as it was and the rehearing asked for is refused.