Bleckley, Justice.
1. The motion for a continuance was in writing, and a copy of it is in the record. There were three grounds, two of which related to the absence of witnesses. Only the third was argued and insisted on here, the other two being abandoned. The matter of this third ground is fully set forth in the reporter’s statement. There was no suggestion in the motion that at the time of submitting it, or at the time of entering upon the trial, the accused was unable to confer with his counsel, or to undergo‘the labor and excitement of conducting his defense. If he had wanted a continuance because of his then condition, physical or mental, he could have applied for it on that ground, and if he had done so, the court may have granted it. Certainly there was no abuse of discretion in not granting a continuance upon a ground not presented in the application. Had it been presented, we may be sure that the court would have exercised a sound and just discretion concerning it, and not ruled to trial a man whose condition was not such as to enable him to undergo the ordeal with needful strength, composure and vigilance. Nay, more; we may assume in favor of the humanity of the presiding judge, that if he had been aware, or even believed, that the accused was not in a fit condition to be tried, he would, without any motion whatever, have declined to bring on the trial so long as the unfitness lasted. The sole error complained of in the bill of exceptions is, that the court erred in overruling the motion for a new trial; and when we look to the motion for a new trial, we find in it no point touching the failure to continue, except upon the refusal of the court to grant the continuance on the motion for the same “submitted in writing.” So far as appears, there was no ruling whatever made below on the then present fitness of the accused to be put on his *403trial. The motion submitted in writing raised no such question, but was confined to the absence of certain witnesses, the existence and causes of excitement and prejudice in the community, and the alleged previous inability of the accused, in consequence of his wounds, his confinement in jail, and his bodily and mental suffering, to make the necessary corrections and meet and overcome the public excitement and prejudice and to confer fully with his counsel in relation to his defense. Not a word did the motion say or suggest as to his then inability or unfitness to do anything. It said “he has been unable,” etc., not adding that he is still unable, or anything equivalent thereto. In this condition of the record, we are bound to presume that in so far as it was the duty of the court to see that the accused was in a fit state, bodily and mentally, to be tried for his life, that duty was faithfully performed.
With regard to public excitement and prejudice, we see nothing to take this case out of the general rule long since laid down here authoritatively, to the effect that these have ceased to be cause for a continuance. 24 Ga., 297 ; 48 Ga., 116; 60 Ga., 257. It seems quite immaterial that the means of stirring up the excitement and prejudice were inflammatory newspaper articles. Why should the condition of the popular mind be treated as more dangerous to the accused when wrought up against him by the press, than when inflamed to an equal degree by any other agency ? Is the press, as such, to be recognized as a power which can retard the trial of persons accused of crime ? Newspapers are free to publish what they please, so that they keep clear of the law of libel, and if they succeed in impressing the public mind unduly against an alleged criminal, are the courts to wait for the storm they have raised to subside, though the presiding judge should be convinced that there is no real obstacle to obtaining an impartial jury and having a fair trial? Surely it is unsound to make any distinction, as matter of law, between excitement produced by the newspapers and that produced by other means. In a county *404of forty thousand inhabitants, it is in a high degree improbable that an impartial jury cannot be had, one month and a half after a homicide has been committed, to try the perpetrator. And were a contingency of the kind to occur, the appropriate remedy for it would not be an ordinary continuance until the next term of the court, but a change of venue to another county.
Upon the subject of the prisoner’s ability while in jail to confer fully with his counsel and prepare for trial, notwithstanding his injuries and his physical and mental suffering, the court below, on the counter-showing made by the state, was warranted in coming to the conclusion at which the judge arrived. To overrule the motion for a continuance, in so far as it rested on this branch of the showing, was strict practice, and we should have been better satisfied if the judge had been more liberal; but we must toy his conduct by the law, and not by our personal feelings, and so doing, must remember that the application for a continuance was addressed to his sound discretion, and that he was in a better position than we are to discern the precise line upon which his discretion ought, in a doubtful case, to move. The question for us is not whether we should have exercised his discretion as he exercised it, but whether he abused it. Being of opinion that he did not, but that he only pursued a strict practice instead of the more liberal practice which we ourselves, if in his place, would have preferred, we, as a reviewing court, must decline to interfere. Code, §3531; 1 Ga., 213; 10 Ib., 86; 14 Ib., 6; 26 Ib., 276; 38 Ib., 491; 46 Ib., 209 ; 47 Ib., 598.
2. For the reasons indicated in the second note of the syllabus the challenge of the accused to the array was properly overruled.
3. When acting strictly in the capacity of trier, there is no doubt that the presiding judge may decline to have the juror further examined as to his competency, and may look alone to the aliunde evidence that is adduced. Code, §4682; 9 Ga., 121; 21 Ib., 220, 227; 32 Ib., 672.
*4054. The witness, Woodward, was not certain that he heard correctly what the accused said softer buying the pistol, but he undertook to testify to the substance of the remark, and he gave his understanding of what it was. His evidence was not inference, but fact, and his doubt upon the distinctness of his hearing did not render his testimony inadmissible, but only detracted from its force and value. He drew upon his own mind, not for any conclusion which he had arrived at from the words used, but for the sense and substance of those words as his ear reported them to his mind. Trying his accuracy by other evidence which subsequently came in, there is great probability that he was mistaken, and that the observation really made was different from his version of it; but this was for the jury to deal with in weighing the evidence as a whole, and not for the court in ruling upon its admissibility.
5. The sole objection made to the written evidence of the witness, Sams, as given at the coroner’s inquest, and written out from the stenographic notes, was that “it was not sufficiently shown that the said (witness) had sworn before the coroner as appeared from this written report of his evidence, and that he could not be impeached by such written report of his evidence.” It was proved by the stenographic reporter that Sams did swear before the coroner as he was represented in the written report to have sworn, and Sams was duly examined upon the various contradictory passages before they were read to-the jury to affect his credit. His attention was properly called to all the alleged discrepancies, and full opportunity was afforded him to explain. If the report was correct, as the reporter testified it was, we see not why it could not be used to impeach him. The argument made here against the admissibility of more of the writing, or its contents, than the particular passages which embraced the' discrepant matters, is not within the scope of the objection which we have recited above, and is thus irrelevant. The objection did not raise the question of how much of the contents of the writing ought to have been submitted to the jury.
*4066, 7. Before proceeding to discuss the admissibility of the declarations and conversations referred to in the 5th, 6th, 7th and 9th grounds of the motion fora new trial, it is necessary to get a correct standpoint from which to consider them in reference to the question of whether or not they constituted a part of the res gestosi To do this requires a survey of the hostile enterprise which had its inception during the private interview of the parties in the back room of the barber-shop, and of the several steps which each party took to advance or retard the collision which that enterprise contemplated. That there was a hostile enterprise admits of no doubt, and that it was of a criminal nature, involving a concerted and premeditated rencounter with deadly weapons, is equally clear. In his statement made to the jury on the trial, the accused gave this account of it, as a part of his recital of what occurred in the back room of the barbershop: “Then I asked him, ‘Come, Colonel, let us sit down here and settle up this matter between us and close up our business now.’ Pie said no, but said, ‘Will yon go and arm yourself and fight me?’ and I said ‘yes, I would fight him any way he wanted to, but let us settle our business first.’ Pie said, ‘No, you have promised to fight me,’ and I said ‘if that was necessary I would fight him in any way he chose, and cut it out or shoot it out.’ He said, ‘Then go and arm yourself and I will do the same.’.....Colonel Alston said, ‘You have agreed to meet me here and fight me; now go;’ and as he got to the door, he took out his watch, and with it in his hand he said, ‘Meet me here in three minutes.’ He went out; and I went out, and into Pause’s saloon, thinking, as it was a bar-room, and knowing that they usually kept a pistol about such places, that I would get one there.” This bar-room was two doors from the barber-shop, and there, according to the evidence of his own witnesses, he inquired for a pistol of three several persons; one of whom he took aside, and on being asked by him what he wanted with a pistol, he replied that he had to meet a man in two minutes.' Being asked who it was, *407he answered, “Bob.” Iiis friend saying, “You are not going to fight Bob Alston?” his reply was, “Get me a pistol, you are talking to a dead man.” Failing to procure any pistol at the bar-room, he went to a gun-store, and there bought one and had it loaded. Having done this, he returned to the bar-room, and was heard to say to Hodgson, an old friend of his, “Now I am ready, let’s go.” He and Hodgson repaired together to the barber-shop and entered the back room, the same in which the hostile meeting had been-agreed upon and in which it was to take place. A conversation at once ensued, which Hodgson details thus: “Hé said, ‘I want you to stay right here.’ I asked him what for, and he said he had a difiiculty with Alston and he wanted me to stay there and see it. I asked him for some explanations, and he said he had no explanations to make, and he wanted me to-stay and I would see; and I said, ‘That is very strange, that you would bring a friend of yourself into a place to see a difficulty and never give him any explanations about it?’ and he said for me to stay there and I would see — that Alston would be there after awhile.” At this stage of the conversation, Sams, another witness for the defense, entered, and he too tried to find out what the trouble was, but apparently without success so far as Hodgson could understand. Hodgson proceeds: “I only heard that there was to be some settlement made, but not what it was. I learned from this conveisation that Alston had been in there before, but I could not tell what the difficulty was about. I understood from him that Alston had told him, Cox, to meet him there in two minutes, he might have said ten, and he pulled out his watch and said, ‘It’s time now.’ 1 saw he was excited, and I said, ‘He will come, anyhow; that he was a man of his word, and if he said he would come he would do it.’ I tried to get him to wait for him, say, ten minutes, and he noted the time, and-told Sams to go and find Alston and tell him that he was there waiting for him according to agreement.” Sams and Hodgson withdrew together, the former going out to bear the message to Alston, and the *408latter stopping in the front room of the barber-shop. The accused remained in the back room. Presently, Nelms, (another of his witnesses) principal keeper of the penitentiary, entered the front room from the street, and called for an interview, which the accused declined, saying he was “waiting for a friend.” After Nelms left, Sams returned} and reported Alston as having said he had reconsidered the matter and would not meet the accused, and that for the latter to attend to his business and he, Alston, would attend to his. On hearing this report, the accused departed to seek for Alston, saying something to the effect that it was all right, but it did not suit him, and that he would go and see him. He went directly to the capítol, looked in at the treasurer’s office, was understood to inquire there for Murphy, who was a clerk in that office, went up-stairs to the office of Nelms, inquired there for Murphy or Howard, most probably for Howard, seated himself for a very brief time, then rose and hurriedly withdrew, and descended to the treasurer’s office. There he found Alston, who had come in, for the last time, whilst the accused was upstairs. He accosted Alston with this language: “You promised to meet me down the street and settle this thing, why didn’t you do it?” Alston answering that he had reconsidered the matter and did not want to have any difficulty, the accused rejoined, “I will brand you.” Further conversation ensued, shots were exchanged, each party using the pistol which he had procured for the appointed meeting at the barber-shop. Alston was killed and the accused severely wounded.' On the element of time, the evidence indicates that the homicide took place within forty-five or fifty minutes after the agreement to fight was entered into; there is scarcely a doubt that it was within an hour, and it is not very improbable that half an hour would cover the whole of the interval. The building in which the fight took place, and that in which it was to take place by appointment, are both upon Marietta Street, and are only about 150 or 200 yards apart.
Having, in the light of the evidence, traced the accused from the beginning to the ending of the criminal enterprise, *409let us follow the deceased in the same way. After leaving the barber-shop he first appeared at the office of Nelms, and endeavored to borrow a pistol. There the conversation occurred to which Nelms testified, and the admission of which in evidence is complained of in the 7th ground of the motion for a new trial. From there (Nelms soon following) he went down stairs into the treasurer’s office, where he met with Howard and Murphy, and where Renfroe, the treasurer, on his return from dinner, found him. Here he procured a pistol, and here he received, through Sams, the message which the accused sent from the barber-shop, and made his reply to it. A conversation in which Howard, Murphy and deceased participated resulted in shaping this reply, and in communicating it to Sams for oral repetition to the accused. It is this conversation as testified to by Murphy that is objected to in the 9th ground of the motion for a new trial. From the treasurer’s office he went across Marietta street to Berron’s on Forsyth street, and there met and conversed with Governor Colquitt. Whilst this conversation was in progress, the accused passed up Marietta street on his way from the barber-shop to the capitol. Separating from Governor Colquitt, the deceased went into Berron’s, partook, during a stay of two or three minutes, of a slight lunch, and then returned to the treasurer’s office and sat down. A brief conversation between him and Renfroe ensued, and this is the matter of complaint in the 6th ground of the motion for new trial. A step was heard approaching, and Peter McMichael, who was in the room, announced that it was Cox, and deceased ordered McMichael to fasten the door. These remarks, one made by McMichael, the other by deceased, and the question to the witness which drew them out on the stand, form the subject of the 5th ground of the motion for a new trial. The accused entered through the door before McMichael could close it, and when he entered, the deceased rose from his chair, and the final conversation between them began. The shooting followed and hostilities were at an end. The space of time extending from the arrival of deceased at the *410office of Nelms and the commission of the homicide, was about twenty-three minutes. His stay at the office of Nelms was only two or three minutes, and from, the time he left there until the firing began was about twenty minutes.
The difficulty of formulating a description of the res gestee which will serve for all cases, seems insurmountable. To make the attempt is something like trying to execute a portrait which shall enable the possessor to recognize every member of a very numerous family. Eschewing anything so impracticable, and letting the present case sit for its own individual likeness, its res gestee may be sketched in general language as follows: (1.) Where two persons consent to fight with deadly weapons, and by agreement separate to arm themselves, both intending to return presently and begin the combat, and they do in fact arm themselves and meet, though not at the place appointed, but near it, in the same city and on the same street, and only a little later than the time contemplated, and actually fight with the weapons thus prepared, and one of them is slain by the other, the res gestes of the transaction comprehend all pertinent acts and declarations of the parties (either or both) which take place in the interval between the agreement to fight and the consummation of the homicide such interval being very brief. (2.) Acts are pertinent as a part of the res gestes if they are done pending the hostile enterprise, and if they bear upon it, are performed whilst it is in continuous progress to its catastrophe, and are of a nature to promote or obstruct, advance or retard it, or to evince essential motive or purpose in reference to it; and declarations are pertinent if they are uttered contemporaneously with pertinent acts, and serve to account for, qualify, or explain them, and are apparently natural and spontaneous. See the works on evidence, and the cases they cite. Also the cases cited in Hopkin’s Penal Laws, §§527, 528, 530. Code, §§3771, 3773.
*411The conversation with Nelms (7th ground of the motion for a new tidal) was had contemporaneously with the effort of deceased to borrow a pistol. It opened with his appli. ■cation for a pistol, and the application was repeated whilst the conversation was in progress. He was on an expedition to arm himself — on a journey, as it were, after a pistol— .and he explained the motive and occasion of his being out •on such business. Be it remembered, too, that it was the ■accused, and not the state, that brought up this part of his •conduct in evidence. Nelms was a witness for the defense, .and on the direct examination he testified to the act and to ■a part of the declarations which accompanied it. The ■state-but proceeded, on the cross-examination, to draw out the balance of the same conversation. So clearly was the evidence admissible for the latter reason, as will be seen under the next head of this opinion, that its relation to the res gestae is utterly immaterial. Possibly, if it stood on that relation alone, so much of it as consisted of mere narrative or recital ought to be held incompetent, were that portion objected to separately and upon that ground.
In the order of time, the next conversation complained -of is that to which Murphy testified (9th ground of the motion for a new trial). Though Murphy was a witness for the state, he was examined late in the trial, and, as will be seen hereafter, this conversation had already been touched upon by one of the prisoner’s witnesses, Sams, and by two ■other witnesses for the state, Renfroe and Howard. It took place during the interview between' Sams and the deceased in the treasurer’s office, about twenty minutes before the homicide, at which interview the deceased received and answered the message which the accused had sent to him through Sams. Most certainly this exchange of messages was an important event in the occurrences of the day, and the whole of the conversation repeated by Murphy bore directly on the transaction then immediately in hand. A part of it went to the very shaping of the answer which Sams was directed to bear to the accused, and to the inspi*412ration' of the pacific spirit by which the answer was pervaded.
The matter embraced in the 6th ground of the motion for a new trial followed immediately upon the return of the deceased from Berron’s and his seating himself in the-treasurer’s office, and was succeeded immediately by the matter set forth in the 5th ground. The evidence complained of in these two grounds, when thrown together, reads thus: “ He (Alston) stated to me, ‘ This is an awful thing to have a man hounding you in this way.’ I asked him, ‘Did you not meet Cox?’ He said, ‘No, he has gone-up stairs hunting me ’ — and then it was that Peter made-the remark that Cox was coming down stairs. Peter said,. ‘Col. Alston, Cox is coming down the steps now;’ and Alston said, ‘ Go and fasten that door ’ — ^and, Peter went to-do so, and met Cox there, and Cox passed .him and came-into the room.” Let it be borne in mind that it was from; this very office that the deceased had sent his answer to the-message of the accused received through Sams; that after-receiving that answer the accused had set out from the-barber-shop to seek him ; that it was to this office that he-first went on reaching the capital; that the deceased, while-at Berron’s in conversation with Governor Colquitt, had seen him on his way to the building, and that at the time the deceased returned from Berron’s, he was in fact upstairs in the building, and it will be plain that neither of these parties had passed wholly out of the res gestee of their pending difficulty. Both were still armed with the prepared weapons, and both may have desired and intended to-use them. The return of deceased to the treasurer’s office,, and there stopping as if to remain, were acts of undoubted pertinency, and the state of mind in which they were performed^ — -the motive and purpose which attended them— are of the utmost importance. If he went there to put himself in the way of the accused and bring on a collision, and if the accused went with a like object, it was essentially the meeting which had been pre-concerted in the barber*413shop, and the deceased had either never fully abandoned the hostile scheme, or had abandoned it but temporarily and then returned to it. If, on the other hand, he went to-the office perplexed and undecided — doubtful, for the timer what course to pursue, and hoping, without seeming to-retire, to have- opportunity for further reflection, and perhaps to take counsel of a friend (for he had listened thereto counsel a few minutes before), his return was well nigh innocent, and not inconsistent with the change of mind which he tad professed, and which he afterwards asserted in answering the first question which the accused so sharply propounded in the fatal interview. His exclamation to the witness, Renfroe, on coming in and sitting down, “ This is an awful thing to have a man hounding you in this way,” indicates mental torture of a bitterly regretful kind, and if-he really felt the agony which his language would suggest, he was deprecating danger rather than desiring to encounter it. His answer to .the question, “Did you not meet Oox?” namely, “ No ; he has gone up stairs hunting me,” is to be looked at in its relation both to the exclamation which he had just uttered and to the order which he afterwards gave t'o fasten the door. Instantly, upon being told that Cox was coming, he ordered the door which was between them to be fastened. Taking, collectively, his three utterances they tend strongly to show the state of mind in which he was. They signify that he believed Cox was searching for him with a hostile intent; and that belief, most probably, induced the order to fasten the door. Under the-circumstances, the order was equivalent to an attempt by the deceased himself to fasten the door, and if he had made the attempt, can there be a doubt that the preceding observations would ha,ve cast light on his motive for the action ? In the same way, they cast light on his motive for giving the order. The entire conversation is thus within the atmosphere of the res gestee. Considering that the deceased had re-, turned to the treasurer’s office knowing that the accused was in the building, and that both were still armed, the return was-*414an ambiguous act, with rather more of a hostile than of a pacific look. His remaining there was also ambiguous ; it might mean war or it might mean peace. What he said and did in the brief interval between his return and the entry of Cox, tended to explain his presence on what proved to be the scene of the rencounter, and to show whether he was there for action or inaction — whether to meet his adversary or to avoid him. It was competent evidence. The question by which some of it was drawn out was not in the best form, but the court gave the witness to understand that his answer was to be restricted to what he saw and heard, and it was'restricted accordingly. The witness simply detailed the facts, offering no opinion or conclusion of his own.
9. Returning to the conversation proved by Nelms, (7th ground of the motion for. a new trial) the true ground upon which the admissibility of the otherwise doubtful matters of that conversation stands, is that they constituted a part of the same conversation into which the witness entered on his direct examination by the accused, and were drawn out on cross-examination. Upon the direct examination the witness testified : “ It was probaby three o’clock in the day that Col. Alston came in and asked me for a pistol, and I said mine was at home shot out, and I asked him what he wanted with it, and he said he had liked to have had a difficulty, and I said, come in and tell me about it, and he came in and sat down. I asked him who it was with, and he said it was with Ed. Cox, and told me about it. ” In the cross-examination, the witness was directed to state all the conversation, and he proceeded through it from where he had left off. Not to look further for authority, this was clearly proper under several decisions of this court. 10 Ga., 145 (text of opinion ; 12 Ib. 505 ; 22 Ib. 40 ; 26 Ib. 172.
Furthermore, by turning'back to the reporter’s statement, it will be seen that a very similar conversation, in so far as it embraced recitals or narrative by the deceased, was put in evidence by the accused in the testimony of Governor Colquitt. The state also afterwards, and without any objec*415tion, so far as appears, proved a conversation between the deceased arid Howard, detailed in evidence by Howard as follows: “ He said that Cox had taken him into a room and told him if he did not rescind the trade he would kill him. I said, he certainly did not' say that. He said he did, and he let me out and told me to heel myself and come back in ten minutes. He said he thought he ought to take a double-barreled shot gun, load it with slugs and go and kill him.” Were the evidence of Nelms, so far as objected to, eliminated as illegal (but as above said, it was entirely legal), a new trial would not necessarily follow, much the same sort of matter being before the jury through these other two witnesses.
Adverting again to the 9th ground of the motion for a new trial (Murphy’s evidence), Howard was examined before Murphy, and testified without objection thus : “ I took Mr. Murphy aside and told him let us stop this, and we persuaded Alston to stay in that part of town, and he did so, though he did not like to be bullied- that way. Then directly he said, ‘Here is a man who has come with a message from Cox for me to come down there and settle it like a man ;’ and I said to the man, ‘ did he send that message ? and he said, ‘yes, and I am sorry to bring it.’ That was Mr. Sams, and I said to him, ‘you go and tell Cox to stop this and wait-; I will be down there directly and give him some advice, and he will thank me for it the balance of his life.’ And Alston said, ‘ Go and tell him I have reconsidered the matter and will not come — that I don’t want to kill him and don’t want him to kill me.’ ” Before Howard testified, the accused had proved by Sams a part of what was said at this interview ; and, first of all, Renfroe had gone into it, the accused it seems objecting, but not carrying forward the objection into the motion for a new trial. If Murphy’s evidence was doubtful or even inadmissible as a part of the res gestes (but it was neither), it would not, considering what was already before the jury when it came in, and remained before them, be sufficiently material to require a new trial. In substance *416it was but little more than Howard had testified without objection; and at no time was there any motion to withdraw this testimony of Howard. However, the correctness of classifying Murphy’s evidence with the res gestee, as we have done above, is indubitable.
10. 11. 12. 13. 14. As the entire charge of the court is set out in the report, it can be studied by every reader for himself, and to remark upon it further than has been done in the head-notes would be superfluous. It is a very able and admirable charge.
On both sides the case was argued before us with unusual thoroughness and remarkable ability. The result of the argument and of a careful examination of the record, has been to satisfy a majority of this court that there was no error in overruling the motion for a new trial.
Judgment affirmed.
Warner, Chief Justice,
dissenting.
Whilst public excitement alone would not have been sufficient to authorize the continuance of the case, still, when that public excitement is aggravated by inflammatory newspaper publications calculated to prejudice the public mind' against the defendant, as set forth in the record, coupled' with the fact of the defendant’s physical condition resulting from wounds received in the then recent difficulty, as established by his attending physician, and not denied, to-wit: having received a pistol-shot wound in his mouth,, knocking, out three upper jaw teeth and four lower jaw teeth, and indenting one of his teeth in his tongue, and had another pistol shot wound in his left hand and wrist;» his tongue so lacerated and swollen that the saliva was constantly oozing from his mouth, and in the opinion of the doctor he was unable to confer with his counsel fully and prepare his case for trial. By the constitution of the-state the defendant was entitled to a trial by an impartial-jury, and was entitled to defend his own case in the court in person, by attorney, or both. From the evidence in the-record it is manifestly apparent that the defendant was not in a condition to exercise his constitutional right to defend his own case, and by forcing him to trial in that condition-deprived him of that right, for it was his undoubted constitutional right to defend his own case in person, by attorney,, or both. The spirit of the constitution, as well as the ends-of justice, required a continuance of the case.
In my judgment the court erred in admitting the declarations of Alston, the deceased, to Renfroe and Nelms, as-contained in the 6th and 7th grounds of the motion for a new trial, in so far as the same related to the acts and sayings of the defendant, in his absence, said grounds being as-follows :
6th. Because the court erred in allowing J. W. Renfroe,. a witness for the prosecution, in answer to questions by the state, and over objection of defendant’s counsel, to testify to a conversation had with the deceased from five to ten. *419minutes before the difficulty, ending in the death of'Alston, commenced, and not in the hearing of the defendant, as follows: ‘He (Alston) stated to me, ‘ This is an awful thing to have aman hounding you in this way.’ ‘I asked him did you not meet Cox?” “He said ‘No. he is gone upstairs hunting me.’ ”
7th. Because the court erred in admitting in evidence, over the objection of defendant’s counsel, a conversation between J. W. Nelms and the deceased, which occurred twenty minutes before the killing, in a different part of - the building and in the absence of.Cox, as follows: “Alston told me he had like to have had a difficulty and wanted a pistol. I told him to come and sit down and tell me about it. I asked him who he was about to have a difficulty with ; he said with Cox. Said he‘Nelms, he carried me in to take a drink with him and I would not drink with him, and took this cigar (had a cigar in his hand) and then he took me into-a back room of a barber-shop and shut the door and said, ‘ Bob, I want to see that power of attorney you have to sell Gordon’s interest.’ And I said’I would riot show it under compulsion, and Cox said, T am going to see it before you leave this room.’ And that he (Alston) said, ‘aint you a nice great big rascal here with your knife when I have not got a piece of steel on me, to try and force me to terms.’ And he said, ‘goand arm yourself and I will wait for you, and,, he said he is waiting for me now ; and he asked me again for a pistol, and I said my pistol was at home.”
The illegal part of Renfroe’s testimony was in proving by Alston’s mere declaration “ that the defendant had gone up-stairs hunting him.” The defendant had a perfect right to go up-stairs iri the capitol building, and there is r.ot a particle of evidence in the record, either by word or act on the part of the defendant himself, going to show that he had gone up-stairs hunting Alston, and surely he ought to be judged by, and held responsible for, his own acts and declarations, and not by the acts and declarations of other people made behind his back, the more especially as in this *420case Alston was not in the eapitol-building when the defendant entered it, but was standing at Berron’s in full view of the defendant as he passed along the street, going into the eapitol-building where it was said he was hunting him. Is the law so unreasonable as to make one man responsible for what another man may say he is doing, or going to do, behind his back, when he has no opportunity to ■deny or contradict the statement? Such has not heretofore been my understanding of it. The hunting of the deceased by the defendant was a most damaging fact against him on his trial, and how was that damaging fact proved ? It was proved by the mere declaration of the deceased to Renfroe behind his back when he had no opportunity to deny or •contradict it; and the same remarks are applicable to the •declarations made by the deceased to Nelms in regard to the acts and sayings of the defendant at the barber-shop. But it is said this evidence was admissible as res gesta. What is res gesta as defined by the law of this state ? “ Declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, are admissible in evidence as part of the res gesta? Code, §3773. The declarations of Alston when he applied to Nelms for his pistol would be admissible in his favor in explanation of that act, and perhaps his declarations to Renfroe might be admissible in his favor in explanation of his own acts and conduct at the time as part of the res gesta, but how Cox, the defendant, can be made responsible by Alston’s declarations made to Renfroe and Nelms behind his back, and be used in evidence <fco injuriously affect the defendant as part of the res gesta accompanying any aet of his, or connected therewith when the declarations were made, is more than I can understand. In my judgment it was a total misapplication of the doctrine of res gesta to admit the evidence complained of in the 6th and 7th grounds of the motion as against the defendant.
The court charged the jury amongst other things: “It would be unlawful for two persons to deliberately conspire *421or agree together to procure deadly weapons and meet again to fight therewith, and if in the heat of blood they do •so agree, it would be the duty of both of them and each of them to heed the voice of reason and humanity if there was an interval sufficient for that voice to be heard, and to reconsider the matter and decline such hostile meeting, and if one of them does so reconsider and decline such meeting, and the same be communicated to the other, it would be the duty of that other to acquiesce therein ; and if that other refuse so to acquiesce and persists in an original hostile purpose, and if, pursuant thereto, he, armed with a deadly weapon, seek his adversary with a deliberate intention of bringing on such difficulty and of using such weapon therein, notwithstanding the other’s refusal, and if he does so bring on the contest, and in such difficulty he slay his opponent with that weapon, it would be murder in such slayer.”
This charge of the court was error in view of the evidence in the record, inasmuch as it did not present the defendant’s theory of his defense for the consideration of the jury. The evidence shows that the agreement to meet and fight at the barber-shop had been abandoned. The deceased had however procured one of the best self-cocking pistols in the city, and while standing at Berrons’ talking with Governor Colquitt, saw the defendant go into the capito 1-building, and said that he did not know but that it was his duty to his family to take a double-barreled shot-gun and shoot him when he saw him; said he had a pistol then. Shortly thereafter the deceased went into the capitol-building where he had just seen Cox, the defendant, go, and went into the treasurer’s office where the difficulty occurred— Alston firing the first shot, having Nelms between him and defendant at the time. Although the deceased had sent the defendant word that he would not meet and fight him at the barber-shop, but whether he was willing to meet and fight the defendant in the treasurer’s office, and was seeking him for that purpose where his friend Murphy, who had *422furnished him with the pistol, and his other friends were, depended upon the acts and conduct of the deceased as disclosed by the evidence. The defendant’s theory from this evidence was, that although the deceased had declined to meet and fight the defendant at the barber-shop, still he was willing to meet and fight him in the treasurer’ office where his friends were, and was seeking Cox with a hostile intent for that purpose; that being a lawyer as the evidence shows, his declaration to Renfroe that “ this was an awful thing to have a man hounding you in this way; he is gone up stairs hunting me,” was made so as to justify himself in case he should meet Cox and should kill him in the'rencounter; that he was apparently seeking Cox by following him into the capitol-building where he had just seen him go. Whether this theory was true or not, the defendant was entitled to have it submitted to the jury for their consideration under the evidence in the case. The deceased evidently was not endeavoring to avoid Cox when he followed him into the same building he had just before seen him enter, instead of getting his dinner as Governor Colquitt advised him to do. It isquite certain that if Alston had not followed Cox into the capitol-building, into which had just before seen him enter, armed with his self-cocking pistol, the fatal difficulty in the treasurer’s office would not have occurred. What was Alston’s intention in following Cox into the capitol-building just after he had seen him enter it, might have been inferred by the jury from Governor Colquitt’s evidence, under a proper charge of the court in relation to the defendant’s theory of the case — that evidence is, that Alston said a very short time before the parties met in the treasurer’s office, that he did not know but it was his duty to his family to take a. double-birreled shot-gun and shoot him (Cox) when he saw him.. This declaration of the deceased clearly shows what-was the state of his feelings toward the defendant at the time and in a few minutes thereafter. When he did next see him it was in the treasurer’s office in the capitol-building, and in .the rencounter which :tqok place there between the *423parties, the deceased fired the first shot. This is in substance the evidence in support of the theory of the defense — his side of the case — which he was entitled to have had submitted to the jury in the charge of the court. The defendant may or may not be guilty, but whether he is or not, he was entitled to a fair, impartial trial as provided by the constitution and laws of his country; and not believing, according to my best judment, that he has had such a trial, there is no power on earth that can extort from me as a judicial officer a judgment affirming his conviction.