Mays v. State , 88 Ga. 399 ( 1891 )

Simmons, Justice.

The facts will be found in the official report. Under these facts, the able counsel for plaintiff in error contended that the verdict for voluntary manslaughter was erroneous, that the jury should have found Mays justifiable in killing the deceased. We have. carefully examined the authorities upon this subject, and they are uniform in holding that a person who kills another under circumstances such as disclosed by this record is not justifiable, but is guilty of manslaughter. This court has held that it would be competent for the jury, under §4334 of the code, to find the homicide justifiable if it was done for the purpose of preventing and was then and there necessary to prevent adultery with the defendant’s wife, and in a case calling for it, it is error to refuse a proper instruction touching their power to so find. Hill v. The State, 64 Ga. 453; Cloud v. The State, 81 Ga. 444. But this court has never held that the husband would be justifiable in killing after the adultery has been committed. On the contrary, it was ruled in Hill’s case that this could not be one of the “other instances which stand upon the same footing of reason and justice as those enumerated” in the code, because the enumerated cases all contain the element of defence or prevention. All the courts, except those having an express statute on this subject, hold that if a man finds another committing adultery with his wife and kills him on the spot, it is manslaughter. We agree to this view, with the qualification .that the jury may acquit of all crime if they find that the killing was done and was necessary at the time either to prevent the commission of the adultery or the completion óf it; and with this qualification we adopt the following statement of the law by Gilpin, C. J., in State v. Pratt, 1 Houst. (Del.) 265: “The law, in compassion for human infirmity, extends its indulgence to acts springing from sudden passion, justly excited, by adequate provocation, when committed instantly,' or before reflection has intervened or reason has had time to resume its controlling power. But • if the slayer, instead of killing the adulterer in the act or at the time of the adultery committed, kills him on the ground of suspicion or belief, or even on the ground of clearly ascertained and known previous adultery, his case is without palliation or excuse, and he is justly held to be guilty of the crime of murder. Killing under such circumstances is not killing under adequate provocation; on the contrary rather, it is killing from a feeling of hatred and revenge. . . In order to reduce the crime from murder to manslaughter, it is necessary it should be shown that the prisoner found the deceased in the very act of adultery with his wife. I do not mean to say that the prisoner must stand by and witness the actual copulative conjunction between the guilty parties. If the prisoner saw the deceased in bed with the wife, or saw him leaving the bed of the wife, or if he found them together in such a position as to indicate with reasonable certainty to a rational mind that they had just then committed the adulterous act, . . it will be sufficient to satisfy the requirements of the law in this regard, and if, under such circumstances be then and there struck the mortal blow, his offence would amount to manslaughter only.” The following authorities are to the same effect: 2. Bish. Crim. Law, §708; 1 Whart. Cr. Law, §459 et seq.; 1 Russell on Crimes (9th ed.), *784; 1 Archb. Cr. Pr. 707 ; 1 Horr. & Thomp. Crim. Def. 754; Notes to Price v. State, 51 Am. Rep. 328; State v. Samuel, 64 Am. Dec. 596; State v. Neville, 6 Jones’ Law, 433; State v. Harman, 78 N. C. 515; State v. Holme, 54 Mo. 153; Commonwealth v. Whitler, 2 Brewst. 388. The prisoner’s statement shows that he arrived at home at night and knocked on the front door several times. His wife finally told him to wait a minute. The husband then walked to the rear of the house, and looking through the window saw a man squatting in a rear room undressed. He called out to know who it was, and his wife said it was nobody; he undertook to light matches, his wife threw water upon them and extinguished them. The deceased then started to run in a stooping position to the front door, and the husband shot him through the window and killed him. The deceased was seeking to escape from the husband’3 vengeance, and the latter shot to prevent that escape. This shows it was not necessary at that time to kill the deceased to prevent the adultery, so as to make the homicide capable of standing upon the same footing of reason and justice as the instances of justifiable homicide enumerated by the code. But the provocation being intolerably great, it was enough to reduce the offence from murder to manslaughter, according to the authorities cited above. We think that, under the law and the evidence, the verdict was right.

Judgment affirmed.