delivered the opinion of the court.

John Need Holly was convicted of an assault and battery, in shooting and slightly wounding one Fahy, and sentenced to fine and imprisonment in the county jail. At the time of the shooting, Fahy was sitting on an empty box in front of a store-house, conversing with some friends. Holly approached him and demanded to know whether ‘ ‘ he intended to pursue that difficulty further.” Fahy asked, “ What difficulty?” to *428which Holly responded, “ You know very well what difficulty.” Fahy answered, i£ I desire no difficulty with you, Johnny, and I am not armed.” The last remark was caused by seeing each of the defendant’s hands resting on a pistol in either pocket of his pantaloons. The defendant immediately drew one of the pistols and attempted to fire, but it failed to explode. Fahy seized and raised a chair. The defendant, drawing his other pistol, fired in quick succession three shots, only one of which took effect.

The errors complained of are : the exclusion of testimony, and the refusal to grant, certain instructions asked. If the testimony was properly excluded, the instructions Avere properly refused, because there was no testimony before the jury to which they Avere applicable. The excluded testimony consisted of proof of antecedent difficiilties, in which Fahy Avas said to have been the aggressor, and of threats uttered by him extending through several days, and coming down to the morning of the day in the evening of which the shooting tookplace ; and also of testimony that Fahy was a turbulent and dangerous man when drunk, as he had been at the time of the previous difficulties and threats, but as he was shown not to have been at the time of the shooting. Further testimony was offered, and excluded, tending to shoAV that the defendant had not gone to the scene of conflict for the purpose of seeking Fahy, but in the discharge of his ordinary duties. Was all, or any portion, of this testimony improperly excluded?

We have earnestly scanned the record to see whether there was any act, motion, or gesture upon the part of Fahy which can be considered as falling Avithin the meaning of the term ‘£ overt act, ’ ’ or which could have afforded the defendant a £ £ reasonable ground to apprehend a design to do him some great personal injury,” and to believe that “there Avas imminent danger of such design being accomplished.” Not onlyis none such shown, but all conjecture that there may have been such is negatived by the testimony. Counsel for the defendant, in their brief, make the following concession: “That there *429must be some demonstration to inflict threatened violence, in order to render previous threats admissible as a ground or justification for homicide, we concede. We concede, moreover, ■ that a man has no right to sacrifice the life of another to his own timidity.”

. As we read the record, this concession, which unquestionably embodies thé law correctly, disposes of all objection to the exclusion of the testimony relating to previous threats and difficulties. There was .here no demonstration, nor any pretense of one. It is not. a case of conflict of evidence as to the existence or non-existence of a demonstration upon the part of the person.assailed, nor a case where there is a simple failure to show a demonstration. The non-existence of any act which could be construed as a demonstration towards violence by Fahy is established by the testimony of three witnesses, and its existence is alleged by no one, though the chosen friend of the defendant, who accompanied him to the scene, was a witness. It must follow that the shooting was done through hatred aroused, or timidity engendered, by the previous threats and difficulties. The one feeling would afford no justification, and the other would demonstrate the highest grade of crime..

It is no less true in .criminal than in civil cases that testimony which, does not tend to establish or to defeat the issue is inadmissible. If the previous threats and difficulties, though admitted, would constitute no defense, by reason of the circumstances attending the conflict, they could only serve to confuse, rather than to aid, the jury. When the representative of the state objects to the introduction of such testimony, he practically demurs to its legal effect. When the court excludes it, it virtually declares that, conceding ,its truth, no defense is shown. To say that it should be admitted, though it constitutes no defense, is violative of the clearest principles of the law of evidence.

It is earnestly insisted that this view of the law results in a usurpation by the court of the province of the jury, in under*430taking to determine from the previous evidence whether there has been shown an overt act upon the part of the person assaulted. The judge is only discharging the duty always im-. posed upon him where the admissibility of certain evidence is by law made dependent upon the precedent production of certain other evidence. The sufficiency of evidence is a question for the jury. Whether there is any evidence upon a given point is always a question for the court. 1 Grreenl. on Ev., sec. 49. The rule is no less applicable to criminal than to civil cases. Thus, where two persons are jointly indicted, the coui’t must always decide whether there has been any evidence adduced tending to establish concert of action or coxxspiracy, so as to make the acts and declarations of oxxe receivable ixx evidence against the other. So, also, the court always decides whether it has been proved that the person whose statements are offered as dying declarations had, in fact, abandoned all hope of life. Ib., see. 160. So, also, whether confessions were voluntarily xxxade, or were extorted by improper influences. Ib., sec. 365. So, too, the coxxrt always decides whether a witness is of sufficiexxt iixtelligexxce, or sufficiently aware of the future punishment to be expected from pexjury, to authorize his testimony to be received,

It may, ixx short, be stated as a universal rule that the court always decides whether there has beexx aixy evidexxce upoxx a particular point, when there exists a legal xxecessity to produce such evidence, ixx order to warrant the ixxtroductioh of evidexxce upoxx some other .point. To this extexxt the court decides questions of fact — that is to say, it determines whether there has beexx aixy evidexxce showing the primary fact, upon the existence of which the admissibility of evidence relative to the secondary fact depends. • '

In criminal cases the j udge should give the prisoner the benefit of all doubts. He should remember that no exact definition of an overt act caxx be given, and that the term embraces anything which evinces a present design to make an assault. Acts which seem trifles light as air whexx viewed *431alone, may become fraught with deadly meaning when all preceding facts are disclosed. Hence the necessity of caution upon the part of the judge in deciding that nothing was done at the time, by the party assailed-, which could reasonably have been construed into an overt act. But the delicacy of the duty will neither prevent nor excuse him from discharging it.

If, failing to observe proper caution in this regard, he improperly excludes testimony, the remedy must be sought in this court, to which the accused always has access, and to which the state never has. If, upon an inspection of the rec- - ord, we could discover any conduct upon the part of the person assailed or killed which, viewed in the light of the proffered proof of antecedent threats, could reasonably have been considered by the accused as indicating a present purpose to carry out the threats, we should feel it our duty to reverse. If the record left it doubtful, or the evidence was conflicting, the same result would follow, because the jury should be allowed to resolve the doubt in the light of the threats.

If the rule ought to be made broader than this — if justice and fair-dealing demand that, in prosecutions for mutual combats, or homicides, the jury should be allowed, regardless of the immediate circumstances attending the conflict, to hear the full history of preceding threats and difficulties, with a view of placing themselves in the exact attitude of the parties' — this change in the law must be made by that department of the government which alone can make and unmake laws. Looking to the facts of the cáse before us, we think the testimony was correctly excluded, and. the charges properly refused. If it be difficult to give a definition of the term “ overt act ” which will embrace all that the words imply, it is not difficult to say that there was no such act in this case.

A construction of the law which would admit proof of pre- ' vious threats, where a man who is sitting quietly talking to.his friends is tired upon three times after he has informed his assailant that he is unarmed, would make them equally admissible when he was shot while wrapped in sleep.

*432We fail to see, in view of the verdict, how the defendant was injured by the exclusion of proof that he went to the scene of the shooting in the discharge of his ordinary duties. The state had not attempted to show that he went there for the purpose of bringing on the conflict, and he, therefore, was not called upon to explain his presence. The state, admitting that he was lawfully there, held him responsible for .his acts after his arrival. Those acts abundantly support the verdict, regardless of the reasons that carried him to the spot.

Judgment affirmed.