(54 South. 971.)

No. 18,660.

#### STATE v. McHAMILTON.

(March 27, 1911.

Rehearing Denied April 24, 1911.)

*(Syllabus by the Court.)*

1. Criminal Law (§ 22*) — Elements op Crime — Motive.

Motive is a material, although not an essential, element in a crime, as it tends to show the state of mind when the act was committed.

[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 23; Dec. Dig. § 22.*]

2. Homicide (§ 166*) — Evidence — Motive — ' Threats.

Threats by the accused against the prosecuting witness are admissible in evidence to show motive.

[Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 320-331; Dec. Dig. § 166.*]

3. Homicide (§ 158*) — Assault to Murder— Evidence — Threats.

Threats in general terms, and not expressly directed against the prosecuting witness, may *499be shown to have included, or to have had reference to him, and are admissible.

[Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 293-296; Dec. Dig. § 158.*]

4. Homicide (§ 158*) — Assault to Murder-Threats Against Others.

Threats against third persons or against a ■class to which the prosecuting witness does not belong are inadmissible.

[Ed. Note. — For other cases, see Homicide, Cent. Dig. §| 293-296; Dec. Dig. § 158.*]

Appeal from Twenty-Second Judicial District Court, Parish of East Baton Rouge; I-I. F. Brunot, Judge.

Bat McHamilton was convicted of shooting with intent to murder, and he appeals.

Reversed and remanded.

James J. Bailey, for appellant. Walter Guión, Atty. Gen., and Charles A. Holcombe, Dist. Atty. (G. A. Gondran, of counsel), for the State.

SOMMERYILLE, J.

Shooting with intent to commit murder.

Defendant was tried and found guilty un■der an indictment charging him with shooting Louis Cato with a dangerous weapon, with intent to commit murder.

[1, 2] The court *a,*qua admitted testimony to the effect that defendant had made threats about an hour and a half before the shooting, in which threats the prosecuting witness was not named.

The reason given for admitting the testimony was to prove motive.

The testimony complained of is the following :

> “That he (the witness) had seen the accused at Wm. Meyerer’s store, where they took a ■couple of drinks. That during the conversation there the matter of the coming election was discussed (meaning a lodge election). This meeting occurred about 1% hours before the lodge meeting. There were present at the conversation E. D. Williams, myself, the accused, and Willie Gaudet, all members of the lodge, ■except Gaudet.

> “That the accused said that he wanted a square election out of Mike Winniield and Buddy Beranco, and, if he did not get it, that he was going to make somebody jump out of the window.

> “The accused at the time of the conversation exhibited a pistol, and was a little later seen by witness with a shotgun.”

[3] The threats testified to showed an intention to injure one or both of- two men who were specially named by defendant; and the language might perhaps be construed to have included any member of the lodge which was represented by the two persons named by him. As Cato, the prosecuting witness, was a friend of the defendant, and not named in the threats, and as he was not a member of the lodge referred to, the threats were not relevant, and should not have gone to the jury. The testimony was well calculated to prejudice the minds of the jurors in view of the fact that there were no eyewitnesses to the shooting; and the plea of defendant was self-defense. It doubtless had the effect of impressing the jurors with the view that defendant was a malicious person generally, one who disregarded human life, and as one who was bent upon murdering anybody or everybody. He was charged with shooting one Cato with a dangerous weapon with intent to commit murder, and not with shooting any one else.

[4] The testimony should have been confined to the attack upon Cato, and not extended to threats against others, with whom Cato had no connection.

The verdict and sentence appealed from are reversed and set aside, and this case is remanded for trial according to law.