Fitzhugh v. The State.

so, but it is probably a clerical mistake, if not no notice seems to have been taken of this irregularity in the court below, and it is too late to make such objection, in this court, for the first time.

Exception is also taken in this court to the form of the oath administered to the jury in the trial of the cause. The entry of the record is: "Comes the attorney-general on behalf of the State, and the defendant, John L. Fitzhugh, who pleads not guilty' and puts himself on the country for his trial, and the attorney-general doth the like, whereupon comes a jury, etc., who were elected, empaneled and sworn to well and truly try the issues joined." The objection is that the common law form of "well and truly try and true deliverance make," etc., was not used. Although we think it is best that long established and recognized forms in such cases should be observed, yet the jury in this case were charged with the trial of the single issue made of guilty or not guilty, and this sufficiently and distinctly appears of record.

Frank Perry testified that he knew Powers, the deceased, very well, lived five miles from him, and his reputation was good where he (witness) lived. On cross examination by defendant he said he could not give the name of any one who had spoken of him as a peaceable man. That he had only heard him spoken of as a peaceable man since his death. Defendant's counsel also asked witness if he had heard that Powers had shot his own son-in-law, to which he answered "yes." He was also asked if he had heard that Powers was hiding or living away from his family.

Fitzhugh. The State.

The court here interposed and said no inquiries must be made as to any particular matter of conduct.

It is insisted that the court erred in rejecting the evidence as to particular matters of which witness had heard, and also in refusing to exclude so much of witness' statement as details that he had only heard Powers spoken of as a peaceable man since his death.

We are of opinion that there was no error in excluding what the witness had heard of particular acts, and this we understand to have been the ruling of the court: 6 Baxt., 465. The inquiry was as to the general character of deceased, not as to hearsay evidence of facts of particular acts, upon which collatteral issue might arise. But even if the testimony in chief as to this general character might have been excluded by the court, yet the court upon the cross-examination might well leave the matter of the value of the testimony to be determined by the jury: 1 Greenl. Ev., sec. 461.

It is further insisted that the court erred in its instructions to the jury in respect to the threats made by deceased against defendant. The court said to the jury: "Previous threats made by deceased against the prisoner and communicated to him before the difficulty, should be considered by the jury to understand the state of mind of the prisoner and the apprehension of danger under which he acted, and to explain his conduct at the time of the difficulty in connection with the other evidence and circumstances of the case." And the court adds: "If the testimony shows that

Fitzhugh v. The State.

the deceased used insulting and provoking language about the defendant, and if it was communicated to him, or addressed directly to him before the difficulty, you consider that in ascertaining his state of mind and feeling towards the deceased."

In respect to the first part of the charge above quoted, it is almost in the exact language of this court in the case of Little v. The State, 6 Baxt., 494. And the subsequent part of the charge applies the same rule as to insulting and provoking language, and instructed the jury that they might consider that as well as threats in ascertaining defendant's state of mind towards deceased.

In this we think there is no error. This language and conduct was admitted as showing the animus of the deceased, and it was also to be considered with the other evidence, including the threats, in ascertaining the state of mind of defendant towards the deceased. Menacing aud provoking language are likely to produce similar influences, and we cannot see that any prejudice to defendant could result from the charge as given.

The defendant requested the court to charge the jury "that the character of the deceased for violence should also be taken into consideration and weighed by the jury, in determining by whom the difficulty was sought and brought about, and also to the motives and purposes of the deceased when he met the defendant." The court declined to so charge upon the ground that he had already sufficiently charged: upon the proposition submitted.

Fitzhugh . The State.

The court had charged the jury that "the character of the deceased for violence, as well as his animosity to defendant as indicated by words and acts at the time and before the difficulty, as well as the attitude of the parties, their relative strength and how they were armed, are all proper matters for the consideration of the jury in determining the question of reasonable apprehension of danger," etc. The court had also instructed the jury that to constitute reasonable apprehension of danger, there must be some words or acts, or demonstrations of some kind by deceased at the time of the killing, indicating a present purpose to do the injury. So that, in effect, the court did instruct the jury as requested, that the character for violence, etc., of deceased, should be considered in determising whether by overt act, etc., deceased had justified apprehension of reasonable danger, and thus began the conflict.

There was evidence of a number of serious threats by deceased against defendant-ome of which were communicated. The testimony of several witnesses shows that he was a violent and dangerous man, and more powerful than defendant.

There are some other exceptions presented in argument, but we do not think there is any substance in those not specially mentioned.

The jury have returned a verdict of guilty, and it is insisted that this verdict is not warranted by the evidence. The facts are not very distinctly presented, but there is enough in the record to show that the parties met in the road; defendant on horseback and

Fitzhugh v. The State.

deceased afoot; that defendant fired two shots before he dismounted-deceased not then being in sight of the witness, and probably not near enough to defendant to strike or offer to strike, with his walking-stick, which it appears was his only weapon. After defendant dismounted both are seen leaving the road, some distance apart-probably fifteen feet or more. After they got in the woods a third shot was fired, and witnesses heard a scream or groan; two other shots were afterwards heard, and Powers found dying with two wounds, both showing appearence of being powder burned. Davenport states that deceased face was towards his (witness') house, and defendant moved around between deceased and the house; that the parties passed out of his sight behind some trees before the third shot, and that it was a little while a little while after the firing of the first two, and the subsequent shots.

Powers' stick was found broken in the woods, but it does not appear that defendant was struck or bore any marks of having been struck with it or other

weapon.

It is pretty clear that deceased could not have been very near defendant when the first two shots were fired, as he was not seen until after defendant had dismounted, after firing the first two shots. From the facts disclosed it is probable that the deceased, being unarmed, except with his stick, did not seek to make any assault upon his well armed adversary, but sought the woods to avoid it, and it is certain that defendant left the road, and Davenport says defendant moved round between deceased and his (witness') house.