Burton v. State
102 S.W. 362
Ark.
1907
Check Treatment
Wood, J.,

(after stating the facts.) The confession ,of error must be sustained.

In Palmore v. State, 29 Ark. 248, this court said: “Threats are admissible when they tend to explain or palliate the conduct oc the accused. They are circumstantial facts which are -a part of the res gestae whenever they are sufficiently connected with the acts and conduct of the parties as to cast light -on that darkest of all subjects, the motives of the human heart.” This doctrine has been often announced by this court. Harper v. State, 79 Ark. 594; Long v. State, 76 Ark. 495; Long v. State, 72 Ark. 427; Bell v. State, 69 Ark. 149; King v. State, 55 Ark. 604; Brown v. State, 55 Ark. 593. The learned .trial judge recognized the doctrine, but seems to have excluded the offered testimony upon the idea that the testimony showed that appellant was the aggressor. The testimony of appellant and the testimony of what appellant said soon after the shooting, tending .to contradict what appellant said on .the witness stand in some -particulars, in our opinion, made it a jury question as to who brought on the fatal rencounter.

We meed not consider other grounds of the motion for new trial. The questions raised have been often decided by this court, and the law of such cases is found in many cases in our reports.

For the errors indicated the judgment is reversed, and cause is remanded for new trial.