At a former day of the term the judgment herein was reversed and remanded. Appellant, in the form of a motion for rehearing, asks the consideration of three bills of exception which were not discussed in the original opinion.
1. The first bill, which is No. 16, in the record, reserved exception to the testimony of the witness Canfield to the effect that there was some money held up for the sale of three head of cattle in regard to which the brand inspector had received a telegram to the effect that the cattle had been stolen. The witness testified that he told appellant that the money was held up in Kansas City and would go to the man to whom the cattle belonged. He further stated that he told appellant that three head had been cut out because they were *Page 363 J.J. cattle and had the top burned over and made S.S. cattle. They were "burned cattle," and appellant said he was not at home at the time these cattle were branded; that he did not know they were stolen cattle; that he further said they had put him under a four thousand dollar bond, and that he did not see why witness was not arrested, and witness told him that the telegram stated that the man that shipped the cattle was innocent. Appellant said that he was satisfied that Armstrong was the man who sent the telegram to Kansas City. Armstrong was the deceased. The court explained this bill by stating that the witness was permitted to tell the whole of a conversation witness had with defendant, because it showed that defendant charged deceased with sending a telegram to Kansas City, stating that certain cattle bought by the witness from defendant were stolen, and that deceased had caused defendant to be arrested and put under bond for it; that in said conversation defendant said "he would kill some of the Syndicate sons-of-bitches," and maybe the rest of them would let him alone. The court further, in qualifying the bill, stated the evidence was clearly admissible as tending to show malice and threats by defendant against deceased. We are of opinion that some of the evidence mentioned was admissible. The threats of appellant were clearly admissible. Armstrong was the manager of the Cattle Syndicate Company. If Armstrong sent the telegram in regard to the cattle, which resulted in withholding the pay on the ground that the cattle were stolen and appellant took offense at this and made the threats, it was admissible evidence. Upon another trial, in admitting this testimony, the court should be cautious enough to admit none except that which went to explain why the threat was made, if in fact the threat was made by appellant against the cattle syndicate people. Inasmuch as Armstrong was the manager of it, and had had appellant arrested, we are of opinion he was sufficiently brought within the threat.
2. Another matter called to our attention is set forth in bill of exceptions No. 17. During the trial some of the clothing worn by deceased was admitted in evidence apparently upon the theory that it tended to solve the question as to the relation and position of the parties to each other at the time the shot was fired. The evidence was uncontradicted with reference to the location of the wounds. It shows the bullet entered the body in front of the right arm and was taken out just back of the left armpit; that the bullet passed through the great aorta, and the effect of such a wound was practically instant death. We are of opinion that the court should not have permitted the introduction of the coat. It could serve no useful purpose, and might have a tendency to injure. Clothing and matters of that sort are sometimes admissible, and sometimes not, owing to the peculiar facts of the case. This question has been discussed frequently and we do not know that we can add anything intelligently to what has been said. Wherever the clothing would serve to elucidate *Page 364 any question before the jury, or throw light upon it where it is not clear, it may be admissible, but where it can not, and where the facts are clearly set forth independent of the clothing and bloody garments, the court should not permit the introduction of such things. In this case this coat could serve no useful purpose; it elucidated nothing. The wound, and the relation of the parties to each other, and the position, all indicated clearly that the matters about which the coat was introduced were fully understood. The introduction of the coat could serve no purpose to throw any light upon the relation of the parties or as to their position with reference to each other, as this was clearly shown beyond any question.
3. Another bill of exception was reserved to the ruling of the court permitting the State to introduce evidence of the reputation of the deceased inasmuch as the defendant had not placed such reputation in issue. The bill of exceptions is imperfect in this, that it does not show on its face whether threats had been made by Armstrong to kill appellant. It seems under our authorities that where threats have been made by the deceased, and these are relied upon by the accused upon the trial as a part of the defensive case, it is permissible for the State to introduce evidence of the reputation of deceased in regard to whether he is a dangerous and violent man or a man of a peaceable nature, whether the accused has placed such reputation in issue or not. If appellant had relied upon threats of Armstrong to take his life, and had placed these matters before the jury, then we are of opinion the State had the legal right to introduce evidence in regard to Armstrong's reputation in this respect. The statute does not confine this question to either side. The language is general that such reputation may be given in evidence. If upon another trial the threats of Armstrong to take the life of the accused are introduced in evidence, then either side can introduce testimony as to the reputation of the deceased as to whether he is a dangerous and violent man and likely to execute a threat, or on the contrary is a peaceable man.
At the instance of the accused in his motion to revise the opinion heretofore rendered, we have taken up these matters.