delivered the opinion of the Court:
The other Judges concurring.
In October last the Defendant was indicted for murder. Having’ been duly arraigned and pleading “not guilty,” his case was set for trial on the 24th day of November following. At the latter date, upon application of Defendant, by reason of the absence of material witnesses, the cause was continued for the term. At the following term, on the 8th day of March, 1876, Defendant filed his affidavit for a further continuance, on account of the absence of material witnesses, but this application for a continuance was denied. Thereupon a trial was had, and a verdict of guilty of murder in the first degree rendered, and Defendant sentenced to be shot on the 23d day of the present month, a motion for a new trial having-been overruled.
The Defendant appeals to this Court.
The second error assigned is the action of the Court in ruling out the testimony of threats made by the deceased against the Defendant shortly before the homicide, but which threats were not communicated to the Defendant before the killing.
It is a general rule that such uncommunicated threats are inadmissable. There are, however, exceptions to the rule. Defendant claims that in this instance there is an exception to the rule, and that there is a conflict of testimony as to who fired the first shot, and that the evidence of such threats should have been introduced to aid the jury in arriving at a correct conclusion on the point.
As the prisoner and one of the witnesses were walking down the street, and saw the deceased, he (deceased) was sitting upon a carriage step .in front of a public hotel, with his hands up to his face and his head bowed down, and was apparently in a stupor or asleep. As they were
The fact that Defendant stooped down as if to pick up something after the shooting, and the fact that deceased was shown to have had a pistol shortly before his death, might, if there were no other facts proven, be sufficient to raise a doubt as to whether deceased had a pistol at the time of his death — but it could not raise a doubt as to who fired the first shot. But we do not think that the deceased even had a pistol when the shooting took place. His pistol was in the hands of Defendant just before and just after the shooting, and if deceased had a pistol, as one witness testifies, shortly before his death, it was evident that he did not have it when he was killed, for after the first shot he threw up his hands and said : “Do not kill me, I am unarmed ! ” a thing which it is not reasonable to suppose he would have said if he had just fired the first shot; and besides, no pistol was found on his person, nor near him, after the homicide. • If Defendant had picked up a pistol, it would certainly have been found upon him. This second pistol —if any existed-^-could not have been in deceased’s possession when he was killed.
We do not therefore think there was a conflict in the evidence as to who fired the first shot, and we cannot see that there was any error in the action of the Court below in refusing to allow proof of the uncommunicated threats referred to.
The giving of what are called the 5th, 6th, 9th, 11th, 12th and 13th instructions, is objected to. Some .of .these instructions, if taken separately, might be objec
In the present case, however, the declarations of Law are not given separately, but all are embodied as a whole in one statement of the Law. In such a case it certainly was not necessary to -remind the jury that they must take the instructions together as a whole, for they were given as a whole, although for convenience in this Court the Counsel have divided the charge up into various parts, and designated and numbered these parts as distinct instructions.
Taking the whole case together, therefore, we do not find any error. It was fairly presented to the jury; the jury have found their verdict, and we do not see wherein they have erred in so doing. The painful character of such cases — the prisoner being under sentence of death— admonishes the Court to be especially careful that no wrong is done, yet the character of the case cannot be expected to influence the Court to depart from what it believes to be clearly the law and justice of the cause.
It is therefore the. order of this Court that the judgment of the Court below be affirmed.