¶1concurring:
¶2In addition to the reasons stated by Justice Hawley, I think the ruling of the district judge, on the motion to strike out the testimony of the witness Collins, is sustainable on the ground that the particular testimony complained of was material and relevant. It was to the effect that about three hours before the killing, the defendant, while treating a crowd in a bar-room, made these remarks: “ It is the first time I have been drunk since I have been in town; I got drunk just to kill two or three s-s of b-s in this town to-night, and I’ll do it, too.”
¶3It was for the jury to determine, from all the circumstances, whether this was mere idle vaporing or a correct expression of the defendant’s state of mind. If it was the *55latter, ancl there was any circumstance from which they might infer that the deceased was one of the persons intended, it should express malice. The bill of exceptions contains but little of the testimony, but from that little, and the instructions given to the jury at the request of the defendant, it sufficiently appears that he provoked the difficulty with the deceased, and that the defense was, that he had in good faith endeavored to retire from the contest before firing the fatal shot. The fact, thus appearing, that within three hours, or thereabouts, after threatening that he would kill two or three persons in that town that night, he killed the deceased in a difficulty which he himself provoked, is certainly some evidence tending to show that he had the deceased in his mind at the time he uttered the threats.
¶4Precisely the same sort of general indefinite threats— threats against “two or three men” — that were proved in this case, were proved in the case of The State v. Barfield, 7 Ired. 303, for the purpose of showing express malice, and the. defendant was convicted of murder. The judgment, it is true, was reversed, but not because the evidence was deemed-irrelevant or immaterial, for the court held on the contrary that it was material, if from it and other circumstances the jury inferred that the deceased was one of the persons threatened (p. 306). The truth was, however, that all the circumstances proved in that case tended very strongly to show that the threats which were made more than a month before the homicide, had no reference to the deceased; and the state’s attorney expressly admitted in the trial that the deceased was not one of the persons intended. The court, notwithstanding this admission, instructed the jury that the evidence in regard to the threats might be considered in determining the question of malice. This instruction, not the admission of the testimony, was held to be error. The decision, in fact, both by expression and implication, recognizes a doctrine that seems to me entirely reasonable — that in order to render threats material to the issue in prosecution for murder, it is not essential that the deceased should be actually named in. *56connection with the threat. If there are circumstances tending to show that he was the person intended, they, together with the threats, must be submitted to the jury, under proper instructions. The circumstances of this case were, in my opinion, fully sufficient to justify that course.
¶5The threats were made by defendant about dusk on the fourth of May; they were directed against persons in that town, and were to be carried into execution that night. The killing took place in that town between ten and eleven o’clock the same evening, and was the result of a conflict provoked by the defendant. There was in fact a literal correspondence between the promise and performance, and the evidence was sufficient prima facie to warrant the jury in finding that the man killed was one of those whom the defendant had avowed his purpose to kill.
¶6It is not denied in State v. Walsh, 5 Nev. 315, that where a person not named is threatened, his identity may be proved by circumstances — the implication is that it may be; but it was held that the facts proved in that case did not tend to show that the threats (if they were threats to kill) were directed at the person killed. It is not necessary to question the correctness of that conclusion in order to hold that in this case the evidence complained of was properly submitted to the jury, for here the circumstances were much more significant.
¶7For these reasons, in addition to the reasons stated by Justice Hawley, I concur.