Morgan v. State

Russell, C. J.,

dissenting. In my opinion the circumstances in proof were ample, when taken in connection with the statement of the defendant, to have required the trial judge to give the requested instructions to the jury; and I think the omission to do this necessarily crippled the defendant in his defense, and weakened the effect of the testimony offered in his behalf. To say the least of it, there is conflict in the evidence as to whether the defendant knew of the relations between his wife and the deceased. There is no evidence to show that he sanctioned these illicit relations. And though the defendant and his wife were not living together, he stated that when the deceased threatened to shoot into the room (as testified to by several witnesses) he was pleasantly chatting with his wife. Even if the couple were separated, the marriage had not been abrogated by law, and the jury were so likely to be misled by the mass of testimony upon this point that they should have been instructed that it is within the power of spouses who have_ been separated to resume at pleasure the conjugal relation. I think, therefore, the judgment refusing a new trial should be reversed.