James Taylor testified that deceased was, to all appearance, a much stouter man than defendant, and was a man of active habits.
The defendant offered to prove that on the morning of the day of the homicide, James Taylor had told defendant that he, the deceased, had threatened to whip and cowhide the defendant on sight. This testimony the court refused to allow to go to the jury, and would not let the witness, Harris, state it. Defendant excepted, and made this one of the grounds for his motion for a new trial.
The fact that defendant was armed with a deadly weapon, was a circumstance, if unexplained, that strongly tended to establish that malice aforethought and premeditation which were necessary to constitute the aggravated offense which the jury found here. Therefore, any motive of self-defense, or of protection against great bodily harm, or degrading chastisement by deceased, which might have prompted this hostile arming, was of the utmost importance for the jury to know. If the defendant armed to provoke the difficulty, in order to kill, he is guilty of murder. If his arming was in self-defense only, his crime, which his being armed with, and the use of a deadly weapon would greatly aggravate, might be palliated by showing a less guilty motive for having the weapon. This evidence, as well as that hereinafter named, showing other threats, and tending to prove the deceased to have been a turbulent, quarrelsome man, for the same reason, ought to have gone to the jury for what it was worth, they being the sole judges of its weight.
Threats, as well as the character and conduct of deceased, are admissible when these circumstances tend to explain or palliate the conduct of the accused. These are circumstantial facts which are a part of the res gestae whenever they are sufficiently connected with the acts and conduct of the parties, so
