The opinion of the court was delivered by
Horton, C. J.:The first error assigned is, that the court excluded the testimony of certain uncommunicated threats ■of the deceased.
It appears the defendant called witnesses on the trial to prove that the deceased said at one time “ he would kill him the first time he saw him;” at another time, “that he didn’t-intend that Brown’s cattle should run near his place;” and again, “that he had a chunk of cold lead for Brown, and would kill him the first time he saw him.” These threats were uttered by the deceased three months before his death,, repeated the week preceding the homicide, and again made the day prior. None of them were brought to the knowledge of the defendant, and were therefore rejected by the court.
1'Sted«SeaIS" whenaamisThe courts, as well as the legislatures, are constantly widening the doors for the reception of evidence, and the later and better authorities establish the rule that in a trial for homicide where the question whether the defendant or the deceased commenced the encounter which resulted in death, is in any manner of doubt, it is competent to prove threats of vio*227lence against the defendant made by the deceased, though not brought to the knowledge of the defendant. The evidence is not relevant to show the quo animo of the defendant; but it may be relevant to show that at the time of the meeting the deceased was seeking defendant’s life: Whar. on Crim. Law, § 1027; Wiggins v. The People, 3 Otto, 465; Little v. The State, H. & T. Cases of Self-Defense, 490; and also the cases cited in these authorities.
statement of facts. The question arises upon the evidence whether the facts proved are appropriate for the application of the rule laid down. The testimony shows, that on the morning of the 14th day of September, 1877, the defendant had taken a drove of cattle from his own residence to the land of the deceased for the purpose of- grazing, and left them in charge of his step-son, Meadows; that after the defendant left, the deceased set his dogs upon the cattle and drove a portion of them to the east of his place, a small number of the herd going the southwest; that the step-son was t0ld by the deceased, that morning, “that he had run the cattle off once, and would not run them off any more, and that he would wade in blood up to his neck before they should run on that side;” that the step-son went to the place where the defendant was and informed him of the action of the deceased, and of the threats he had made. Defendant then, in company with his step-son, started on horseback in the direction of the cattle. After starting, defendant told his step-son to go and get his shot-gun, and he would kill deceased’s “d — d dogs.” Defendant passed on to the south of Goodwin’s house, and after passing, Goodwin was seen coming up out of the ravine east of his farm. He stopped at his fence corner, where he remained until the wife of the defendant passed. At this time, Goodwin was armed with a navy revolver. After Mrs. Brown passed, he went to a field north and east of his premises, where three of the witnesses of the state, viz., House, Sprouse and Sweeney, were at work. Upon entering this field, Goodwin removed his revolver and put it in a wagon close by, and engaged in conversation with the *228parties there. Brown, upon passing south of Goodwin’s house, passed out of sight of these witnesses, and did not come into sight again until Goodwin had come into the field were they were and removed his revolver. After Goodwin had been in the field a short time, the witnesses saw Brown coming out of the ravine, and upon high ground a distance southeast of Goodwin’s house. He was moving his cattle to the southwest. Shortly after, Goodwin went to the wagon, got his revolver and started south, passing out of sight of the persons in the field. After Goodwin left the field, the witness, Sweeney, left his comrades and went to the western part of the field. He testified that Brown was riding a roan pony in a northwest direction;' that Goodwin was on foot going southwest; that Brown stopped first, then Goodwin stopped; that they were about seventy-five or one hundred yards apart. About this time, witness stooped to pick up a fork, and while in a stooping position, he heard a shot fired, but did not know who fired it; he then heard a second shot fired, but did not know who fired it. The first shot sounded to him like a gun, and the second didn’t sound as loud as the first. After the second shot was fired, he saw Brown dismount and fire a shot across his pony toward Goodwin. He noticed after this shot that Goodwin mashed down a little to the ground, and soon started toward his house, which was distant about two hundred and fifty yards. Brown mounted his horse and went to his wife and step-son not far off, and then turned his horse about a little northwest, and rode down near where Goodwin was getting into the road, and the last witness saw of them they were not over forty yards apart, both going in a northeast direction. While out of sight of witness, he heard another shot in their direction. The witnesses Sprouse and House testified that they heard the three shots fired, but did not see who fired them; that when they came in sight of the parties, Brown was riding toward his wife and boy, and Goodwin was walking toward his house; that Brown then turned his horse and rode near the path of Goodwin; the latter checked up, and Brown stopped at the same time and fired at Good*229win. This was the fourth shot they heard. Goodwin soon sank down and died. These two witnesses reached him before his death; his revolver was in his hand, and upon being interrogated by House, “ Why he permitted himself to be shot up so ? ” replied, “ My pistol snapped.” Mrs. Brown, the wife of the defendant, testified that when Goodwin crossed the track of Brown he drew his revolver in front and fired three times — twice before Brown got off his pony, and once just as Brown fired; that she was in plain sight of both parties, being fifteen or twenty yards behind Brown, and Goodwin being fifty or sixty yards distant from him; that after this shooting, Brown came to her, and Goodwin started home. Brown said to her, “I believe I am shot through the thigh,” and she said, “Let’s go to pa’s” (meaning his father’s), which was about three-quarters of a mile away. They started for Brown’s father’s, and as Goodwin got up near the fence, in the road they were traveling, he stopped and turned from the way he was going and fired, and Brown fired again. The evidence of Meadows corroborated the statements of his mother, Mrs. Brown, to the effect that Goodwin fired the first two shots and Brown the third, and that at the second encounter Goodwin raised his hand, and two shots were fired about the same time. Both say Brown was slightly injured in the leg by one of the shots of Goodwin. The testimony shows that Brown had no other fire-arm except the double-barreled shot-gun, and that he did not load it at any time during the fray. The revolver of Goodwin was examined after his death: four chambers were empty — two loaded, but no caps on. Some of the witnesses thought only one load had been discharged recently, as the other chambers were rusty; others thought two loads had been lately discharged.
Erom this brief résumé of the testimony, some of which is conflicting, it is evident that the question whether the defendant or the deceased commenced the encounter is in doubt —at least, the evidence upon the point is very contradictory. The theory of the defense on the trial was, that Goodwin sought the first meeting and began the combat, firing two or *230three times, and that he commenced the second encounter by firing upon Brown as he was on his way to his father’s to have his injuries attended to. As the acts of the deceased in reference to the two meetings are of a doubtful character, considering all the evidence, within the rule stated the uncommunicated threats were admissible.
2,ra?eaTh“uatsof admisible?1811 Again, the rejection of these threats was error, as evidence of communicated threats had already'been admitted, and in
such cases it is competent for the purpose of corroborating this testimony to introduce evidence of uncommunicated threats. (Cornelius v. Commonwealth, 15 B. Mon. 539; Holler v. State, 37 Ind. 57.) What effect the jury should give to the proof of these threats would depend upon their opinion of the entire facts and circumstances. They should be particularly instructed, that previous threats, no matter of what character, would not of themselves justify the defendant in killing the deceased; that the uncommunicated threats are admissible to show the animus of the deceased, to illustrate his conduct and motives, and in case of doubt as to the acts of the parties at their two encounters, as tending to show which one began or provoked the shooting; and if communicated threats shall again be given in evidence, the jury may consider the uncommunicated threats as tending to corroborate this testimony.
*231„ . .3. Jury; misconfuagmentare-ff; versed. *230The only other assignment of error that we care to notice is the misconduct of the bailiff, who entered the jury room while they were engaged in deliberating upon their verdict, and read the jury a portion of the instructions of the court. The affidavit of this officer, that he read these instructions at the request of the jury because they were unable to read them, does not excuse or justify his conduct. His acts were in direct violation of his oath of office. He was sworn not to permit any person to speak or communicate with the jury, nor to do so himself, unless by order of the court, or to ask them whether they had agreed upon their verdict. As he violated his oath in reading the instructions, how can we say his testi*231mony, that he read the instructions correctly, is to be believed? He is not under the circumstances a credible witness. We cannot say whether the rights of the defendant were prejudiced or not by this action. The officer deserves punishment by the court; and any verdict returned after such procedure on the part of a jury ■and bailiff ought to be set aside, as soon as the fact comes to the knowledge of the court. The general rule is, that if the ■court can see that the misconduct complained of, had or might have had in a criminal action an effect unfavorable to a defendant moving for a new trial, the verdict should be set aside.
We repeat what we said in the case of the State v. Snyder, 20 Kas. 306: “We cannot be too strict in guarding trials by jury from improper influences, and in compelling a rigid and ■vigilant observance of all the provisions of the statutes tending to preserve the purity of such trials.” If no error had been committed in the rejection of testimony, we would have been compelled to have set aside the judgment and sentence •of the court on account of the conduct of the bailiff and jury.
It is therefore ordered, that the verdict of the jury and the ■sentence and judgment of the court be annulled and avoided, and the case remanded for a new trial. It is further directed, that the appellant be returned from the state penitentiary and delivered over to the jailer of Chautauqua county, there to abide the order of the district court of said county.
Valentine, J., concurring. Brewer, J., dissenting.