To constitute a mutual combat there must be mutual intent to fight and at least one blow struck.34 1935 § 358. Homicide which results from husband's knowledge of wife's adultery.-In an early English case it is said that "when a man is taken in adultery with another man's wife, if the husband shall stab the adulterer, or knock out his brains, this is bare manslaughter; for jealousy is the rage of a man, and adultery is the highest invasion of property.' Courts then hold that the husband must have discovered the adultery on the spot, or must have "ocular inspection of the act, and only then."3" For the husband to kill his wife on suspicion that she had committed adultery, however well founded, or upon hearsay, was murder. Modern decisions, however, upon this question, are in conflict. Some adhere to the old rule,37 while others take a more liberal view.38 Upon principle, the latter view is correct. The "law accepts human nature as God has made it, or as it manifests itself in the ordinary man, and every sort of conduct in others which commonly does in fact so excite the passions of the mass of men as practically to enthrall their reason the law holds to be adequate cause. 34 Tate v. State, 46 Ga. 148. 119. 364 Bl. Comm. 191. See also 3 Greenl. Ev. (16th ed.), § 122; Pearson's Case, 2 Lew. 216; 1 Hale P. C. 487. 37 Reg. v. Fisher, 8 Car. & P. 182; Reg. v. Kelly, 2 Car & K. 814; State v. Neville, 51 N. Car. 423; State v. Samuel, 48 N. Car. 74, 64 Am. Dev. 596; State v. John, 30 N. Car. 330, 49 Am. Dec. 396. See also Jones v. People, 23 Colo. 276, 47 Pac. 275; Shufflin v. People, 62 N. Y. 229, 20 Am. Rep. 483; Bugg v. Commonwealth, 38 S. W. 684, 18 Ky. L. 844; State v. Young, 52 139 Ore. 227, 96 Pac. 1067, 18 L. R. A. (N. S.) 688n, 132 Am. St. 689n. 38 Maher v. People, 10 Mich. 212, 81 Am. Dec. 781, Beale's Cases 482, Derby's Cases 355; State v. Grugin, 147 Mo. 39, 47 S. W. 1058, 42 L. R. A. 774, 71 Am. St. 553; Biggs v. State, 29 Ga. 723, 76 Am. Dec. 630; Hooks v. State, 99 Ala. 166, 13 So. 767. See also Stevens v. State, 137 Ga. 520, 73 S. E. 737, 38 L. R. A. (N. S.) 99. 39 State v. Grugin, 147 Mo. 39, 47 S. W. 1058, 42 L.. R. A. 774, 71 Am. St. 553. See also Rowland V. State, 83 Miss. 483, 35 So. 826, 1 Ann. Cas. 135. In harmony with the better view, it has been well said that "since the law, as other sciences, makes progress, it is no longer accounted necessary that a husband should have 'ocular inspection,' etc. It suffices if the provocation be so recent and so strong that the husband could not be considered at the time master of his own understanding."40 So where the evidence tended to show the commission of adultery by the deceased with the defendant's wife half an hour before the assault, the defendant seeing them go to the woods under circumstances tending strongly to impress an adulterous purpose on his mind, followed them, saw them come out together, and pursued the deceased toward a saloon and on the way was told that deceased and his wife committed adultery in the woods the day before, and defendant in great excitement entered the saloon and shot deceased, such evidence was proper to the issue of provocatio and from it the jury might have found defendant guilty of manslaughter only.41 §.359. Adultery-Reasonable belief of wife's guilt sufficient. To reduce a homicide from murder to manslaughter actual guilt on the part of the wife is not essential. Apparent guilt may be sufficiently strong to constitute adequate provocation.42 If the homicide is committed in a transport of passion upon discovering the decedent apparently in the act of adultery with the wife of the accused, under circumstances such as to induce and justify a reasonable belief on the part of the accused that such a crime was in progress, and there is no proof of actual malice, the offense is man 40 State v. Grugin, 147 Mo. 39, 47 S. W. 1058, 42 L. R. A. 774, 71 Am. St. 553. 41 Maher v. People, 10 Mich. 212, 81 Am. Dec. 781, Beale's Cases 482, Derby's Cases 355. 42 State v. Yanz, 74 Conn. 177, 50 Atl. 37, 54 L. R. A. 780, 92 Am. St. 205n. slaughter only, although it subsequently turns out that adultery was not in fact committed. 43 § 360. Illicit intercourse with slayer's sister or daughter. -Whether illicit intercourse with the slayer's sister or daughter constitutes sufficient provocation to reduce the homicide to manslaughter depends upon the circumstances of the particular case. In England the court determines whether certain acts constitute adequate provocation and the jury determines whether the provocation caused heat of blood which resulted in the homicide.45 And this view has been held in this county.46 According to the better view, however, the existence or non-existence of adequate provocation in such a case is a question for the jury to decide.47 Where a father slays a man who has ravished his daughter, the provocation may reduce the offense to manslaughter.48 § 361. Insulting words and gestures.-As a general rule, insulting words, however opprobrious, and gestures, however contemptuous, do not constitute a sufficient provocation to reduce a homicide to manslaughter.49 There are, however, exceptions to this rule. Special circumstances may render 43 State v. Yanz, 74 Conn. 177, 50 Atl. 37, 54 L. R. A. 780, 92 Am. St. 205n; State v. Will, 18 N. Car. 121. See also State v. Larkin, 250 Mo. 218, 157 S. W. 600, 46 L. R. A. (N. S.) 13. 44 Lynch v. Commonwealth, 77 Pa. St. 205; State v. Grugin, 147 Mo. 39, 47 S. W. 1058, 42 L. R. A. 774, 71 Am. St. 553. 45 Reg. v. Fisher, 8 Car. & P. 182; Reg. v. Kelly, 2 Car. & K. 814. 46 State v. John, 30 N. Car. 330, 49 Am. Dec. 396. 47 Maher v. People, 10 Mich. 212, 81 Am. Dec. 781, Beale's Cases 482, Derby's Cases 355; State v. Grugin, 147 Mo. 39, 47 S. W. 1058, 42 L. R. A. 774, 71 Am. St. 553. 48 State v. Grugin, 147 Mo. 39, 47 S. W. 1058, 42 L. R. A. 774, 71 Am. St. 553. 49 1 Hale P. C. 456; Reg. v. Rothwell, 12 Cox Cr. C. 145, Beale's Cases 481; State v. Carter, 76 N. Car. 20; Taylor v. State, 48 Ala. 180; Malone v. State, 49 Ga. 210; Keirsey v. State, 131 Ark. 487, 199 S. W. 532; State v. Fletcher (Mo.), 190 S. W. 317; State v. Buffington, 71 Kans. 804, 81 Pac. 465, 4 L. R. A. (N. S.) 154n; State v. Grugin, 147 Mo. 39, 47 S. W. 1058, 42 L. R. A. 774, 71 Am. St. 553. words alone sufficient; for instance, "if a husband suddenly hearing from his wife that she had committed adultery, and he having had no idea of such a thing before, were thereupon to kill his wife, it might be manslaughter.' In some states, statutes have been passed expressly making insulting words, under certain conditions, adequate provocation.51 9950 § 362. Trespass upon property insufficient provocation.A mere trespass upon property, other than the habitation, is not a sufficient provocation to reduce a homicide to manslaughter. Upon this point the decisions are in accord. "If one man be trespassing upon another, breaking his hedges or the like, and the owner, or his servant, shall upon sight thereof take up an hedge-stake and knock him on the head, that will be murder, because it was a violent act, beyond the provocation.”52 "It is a rule of law, that where the trespass is barely against the property of another, not his dwelling-house, it is not a provocation sufficient to warrant the owner in using a deadly weapon; and if he do, and with it kill the trespasser, this will be murder, because it is an act of violence beyond the degree of the provocation."53 It is to be observed, however, that when the killing is done by an instrument not a deadly weapon, and in a manner not likely to kill, the homicide is manslaughter.54 Moreover, when a trespasser is opposed by force barely sufficient to prevent him from committing a trespass, a deadly 50 Reg. v. Rothwell, 12 Cox Cr. C. 145, Beale's Cases 481. See also Reg. v. Smith, 4 Fost. & F. 1066; Seals v. State, 3 Baxt. (Tenn.), 459; Wilson v. People, 4 Park. Cr. R. (N. Y.) 619; State v. Grugin, 147 Mo. 39, 47 S. W. 1058, 42 L. R. A. 774, 71 Am. St. 553. 51 Hardcastle v. State. 36 Tex. Cr. 555, 38 S. W. 186; Brown v. State, 74 Ala. 42; Mitchell v. State, 41 Ga. 527. 52 Reg. v. Mawgridge, Kelyng 119. See also State v. Vance, 17 Iowa 138. 53 Chief Justice Parsons in Commonwealth v. Drew, 4 Mass. 391, 396. See also Simpson v. State, 59 Ala. 1, 31 Am. Rep. 54 Commonwealth weapon not being used, and during the encounter the trespasser is killed to save the other party from death or serious bodily harm, the homicide is excusable.55 If, however, the killing is not to save the other party from death or grievous bodily harm, but results from passion caused by the other's blows, the homicide is manslaughter.56 And if the killing is done maliciously it is murder.57 § 363. Homicide resulting from a duel.-When two persons, pursuant to an agreement, fight a duel, each bent on killing the other, and death results, the homicide is murder, notwithstanding the fact that the combat was conducted fairly.58 § 364. Reasonable cooling time.-An adequate provocation reduces a homicide to manslaughter, provided a reasonable cooling time does not intervene between the provocation and the killing. But if the blood has a reasonable time in which to cool, the killing, notwithstanding the provocation, is murder.59 Actual cooling of the blood, however, is not the test. As a general rule, if, under all the circumstances attending the homicide, a reasonable length of time. intervenes between the provocation and the act, within which under like circumstances an ordinarily reasonable man would cool, the homicide is murder. The law, in extending its indulgence to human frailty, does not look merely to the fact 55 4 Bl. Comm. 186, 187; 1 Hawk. P. C., ch. 28, § 24; Erwin v. State, 29 Ohio St. 186, 23 Am. Rep. 733; Pond v. People, 8 Mich. 149; Noles v. State, 26 Ala. 31, 62 Am. Dec. 711; State v. Ingold, 49 N. Car. 216, 67 Am. Dec. 283. 56 Commonwealth V. Drew, 4 Mass. 391; Claxton v. State, 2 Humph. (Tenn.) 181; Simpson v. State, 59 Ala. 1, 31 Am. Rep. 1n. 57 State v. Partlow, 90 Mo. 608, 4 S. W. 14, 59 Am. Rep. 31; Cates v. State, 50 Ala. 166; State v. Moore, 69 N. Car. 267; State v. Levigne, 17 Nev. 435, 30 Pac. 1084; Stiles v. State, 57 Ga. 183; State v. McDonnell, 32 Vt. 491. 58 State v. Hill, 4 Dev. & B. (N. Car.) 491, 34 Am. Dec. 396. 59 State v. McCants, 1 Speers L. (S. Car.) 384 (a most excellent case on this point); In re Fraley, 3 Okla. Cr. 719, 109 Pac. 295, 139 Am. St. 988. |