delivered the opinion of the court.
'The defendant was indicted for an assault on one Lewis Dorsheimer, with intent to kill. The first count charges the assault to have been made feloniously and wilfully, on purpose and of malice aforethought, by shooting at him, the said Dors-heimer, with a pistol, with intent to kill him.
The second count charges the assault and the shooting to have been made feloniously and wilfully, with the intent wil-fully and feloniously to kill said Dorsheimer.
The defendant plead not guilty. The jury found him guilty on the second count and fixed his punishment at two years imprisonment in the penitentiary. He moved for a new trial, and this motion being overruled, he excepted, and brings the case here by appeal.
The bill of exceptions preserves the instructions given and ■refused, and also the objections made to evidence, which was admitted against the defendant, as he thinks, improperly.
There was a fight between the defendant and Dorsheimer, ■which the latter .commenced. In the fight, Dorsheimer got the defendant down on the pavement and choked him, until his tongue was out and his eyes stretched. When Dorsheimer let him go, he, Dorsheimer, was in the house, up stairs, and Williamson shot with a pistol at him, as he ran up the stairs, but did not.hit him. It seems that Williamson had written a .letter about his own wife, to .one Mr. Mann ; that Dorsheimer Nad married the daughter of Mrs. Williamson, by a former *397busband ; that Mann had given this letter to Mrs. Williamson, and that, on the morning of the affray, Dorsheimer had received the letter from Mrs. Williamson and went to Williamson with it, and in this manner brought about the fight. The letter was exceedingly obscene and vulgar, and in every way unbecoming a husband and a man. _ The State offered to read this letter to the jury. It was objected to by defendant, as incompetent testimony. The State proved that the letter was in the handwriting of Williamson,' and the court dfecided that it was competent evidence. This ruling of the court was excepted to.
After the decision of the court that the letter was competent and relevant testimony, the circuit attorney proposed to let the jury have the letter and retire to their room, and there read it. This was, under the circumstances, agreed to by the defendant, as the letter was not such as should be read in public.
1. We are of opinion, that the court should have rejected this letter as evidence. It had no relation to. this prosecution, and was not a part of the res gestee. Its tendency was, to prejudice the mind of the jury against the defendant, but could not assist them to form one idea either for or against the guilt or innocence of the accused, as regards the charge in this indictment. This letter had nothing to do with the assault with intent to kill, on the part of Williamson. But it might very quickly rouse the feelings of honorable and high-minded jurors to a degree of indignation against the defendant, nowise propitious to a calm investigation and correct conclusion upon his innocence or guilt. Eor this error, therefore, this case must be sent back.
2. The instructions given for the State have also been argued by defendant’s counsel, as being improper and illegal. Some of these instructions are erroneous. The instructions do not put the case fairly before the jury. The first one given is wrong : “If the jury believe from the evidence, that the defendant, in St. Louis county, and within three years next *398preceding the finding o£ this indictment, did commit an assault upon the person of Lewis Dorsheimer with a pistol, and did so assault, with the intent to take the life of Dorsheimer, you will find him guilty, as charged in the second count of the indictment.”
This instruction takes from the jury all consideration in regard to provocation, or even self-defence.
Again, “If the jury believe defendant shot at Dorsheimer, with intent to kill him, the offence described in the second count is complete, and in such case, it is entirely immaterial whether the shot took effect or not.” This is equally objectionable ; it is not the law of this case. The court should have been more careful in properly informing the jury of the law arising on the facts in this proceeding. The instructions seem to have been drawn with too much haste on both sides.
The judgment of the Criminal Court is reversed and this case is remanded for further trial, on which the letter is not to be read nor received in evidence, and the instructions noted above not to be given. The other Judges eoncur herein.