¶1(dissenting). It is undisputed that up to the fatal encounter between appellant and Hastings they had been good friends, and that the cause of the ill feeling between them which resulted in the encounter was the anger and resentment aroused in the mind of Hastings by the report that appellant had made an insulting remark about his mother. It appears from the testimony that this report was unfounded, and that appellant had not, in fact, made an insulting remark about Mrs. Hastings. It is also undisputed that Hastings was the aggressor in the encounter, but there is a conflict as to the extent of his conduct, whether it was sufficient to justify appellant in firing the fatal shot.
¶2It was competent to show, and the court permitted the greatest latitude in proving, all of the previous conduct of both parties, for the purpose of showing their state of mind. Appellant was allowed to show that he had not made any unfavorable remark about Mrs. Hastings, and he was allowed to show by the statements and alleged threats of Hastings that the latter was intensely angry and resentful about what he had heard was appellant’s remark about his mother. I am wholly unable to understand upon what theory it is admissible to prove the conversation between Mrs. Prewitt and Mrs. Hastings. It was a conversation wholly between third parties, neither of the parties to the fatal encounter being present, and it could only have presented a matter entirely collateral to the main issue. It had no bearing whatever on the conduct, or motives, or state of mind, of either of the parties to the encounter. Moreover, it could have had no beneficial effect upon plaintiff’s defense, unless the jury had seen fit to try the case on the issue as to whether or not Mrs. Prewitt or Mrs. Hastings was at fault. It was unimportant whether the report to Hastings about what appellant had said about his mother was true or false, for, as before stated, it is undisputed that Hastings had been aroused to a high pitch of anger1 toward appellant by the report of the remark made by Prewitt about Mrs. Hastings. It could not have helped appellant’s case to show that Hastings’ anger was without cause, and it certainly was not competent to show this by a conversation between two other persons, even though these person's were the mother and wife, respectively, of Hastings and appellant.’
¶3The other ground of the reversal is that the court erred in refusing to allow appellant to prove by witness Spyker that immediately after the shooting the witness saw nothing about appellant to “indicate the slightest anger or resentment, and that the defendant’s expression at that time reflected only fright and fear.” It seems to me that this is merely an attempt to prove a conclusion by the witness, and not to prove facts upon which the jury mig’ht draw an inference or conclusion. The authorities holding such testimony as competent put it on the ground that the witness should be permitted to state his conclusion after stating the facts upon which the conclusion is based; that is to say, where the witness states that the face of the party was flushed or pallid or that the eye-balls were inflamed, or. any other fact that would indicate the state of mind of the party, the witness may then state his own conclusion, based upon those facts, but it seems to me to be a mere conclusion for a witness, without giving the facts, to state what the expression on the face of the party indicated. Anger and fright are emotions which generally manifest themselves on the human countenance by physical evidences, about which any witness may testify, but it is purely an opinion or conclusion for a witness to state that these emotions existed without stating the facts constituting physical evidence of those emotions. I 'believe that none of the authorities, save Professor Wigmore, go to the extent that the court has gone in this case, and the intemperate statement of that learned author in the opinion of the majority is, to my mind, not at all convincing.
¶4But, even if this testimony of witness Spyker was competent, it only tended to show the mental attitude of appellant at the time of the shooting, and could only have been considered by the jury in determining whether or not there was malice. The jury found on sufficient evidence and upon proper instructions that the killing was unnecessary,. and if this testimony had been ad-' mitted, and the jury had accepted it as a true indication of appellant’s feelings at the time, it could only have had a ligitimate tendency to alter the verdict with respect to the degree of the homicide. It seems to me, therefore, that, even if the testimony is competent, it ought only to call for a reduction of the degree of the judgment to a conviction for manslaughter. I am unwilling, however, to say that the court erred in either particular in its ruling on the admissibility of testimony.