Page:Palmore v. State.pdf/16

VOL. 29] Rh The rejection of evidence tending in any degree to aid the jury in determining a material fact is error. 3 J. J. Marsh., 229. It was perfectly competent for Harris to prove that Taylor had told appellant of the threat. The point of inquiry was not whether the threats were made, but what were Palmore's motives. The communication by Taylor to him was a fact in the case proving one of its circumstances. The truth of the message was not the question. Cornelius v. The State, 12 Ark., 782; Atkinson v. The State, 16 id., 568. But, in this case, if the slayer believed the threat, the character of the deceased was an important element in the case; for, if he was turbulent and revengeful, he would be more apt to execute his threats, and the appellant would be the more readily excused for preparing himself for defense in a more decided manner, and to act with more promptness and energy when he was assailed. If the jury should find that the deceased was the assailant, these facts, which were excluded from the jury, ought to be of the utmost importance. But the value and weight to be given to them are for the jury, not for the court.

The court gave seven instructions on the part of the state, numbered from 4 to 10 inclusive, to the giving of which appellant excepted.

The 4th is as follows: "If the jury believe from the circumstances that the accused intended to use a deadly weapon if the deceased assailed him, and provoked the deceased to strike him, and afterwards killed him, they will find the defendant guilty of murder."

This instruction may be good abstract law, which we doubt, but, connected with the facts of this case, should have been qualified by the words "intending to kill him, if he struck him," or something of like import after the words, "provoked the defendant to strike him." For, otherwise, the jury, from the circumstances of this case, might have been led by the