Burgеr surprised his wife in a compromising setting with another man, and shot them both to death on the spot. The state’s evidence indicated he had been following her and spying uрon her for some time, in the belief that if he found her with another man he would be privileged to do them harm. He has now been convicted of both murders, and brings this appеal.
1. The most significant issue before us is his claim that when a man discovers his wife in an adulterous act or overtures thereto, he is justified in killing both his wife and the lover, or alternatively that such killings cannot rise above voluntary manslaughter.
Such a rule of law would bе utterly barbarous, and we wholly reject it. Moreover, so much of our state’s currеnt decisional law as allows a spouse to kill the illicit lover, we also rejеct.
Burger received at his trial the benefit of instructions allowing the jury to find the killing of the lover but not of the wife to be justifiable homicide to prevent adultery. See
Henderson v. State,
Recently, the Court of Appeals in Henderson v. State, supra, sеt out candidly the law of this state, namely, that killing the lover to prevent adultery could be justifiable homicide to protect the marriage, though killing the spouse cоuld not be justified because that would terminate the marriage. That has indeed been the law, but it exalts the empty form of marriage — the vows of which are in the act оf being repudiated by one party — above human life itself. Moreover, there is no statute compelling this absurd and dangerous situation — the *172 so-called "unwritten law” has been created by judges.
In this day of no-fault, on-demand divorce
(Manning v. Manning,
2. The remaining claims of error, as numbered below, need not long detain us.
The verdict was amply supported by the evidence.
Burger argues that the testimony of Rеverend Spurling, a witness for the state, was incompetent under Code Ann. § 38-419.1 even though nоt objected to. Our review of the record shows that the statements by Burger to which Sрurling testified were not made by Burger in "professing religious faith, or seeking spiritual comfоrt” or "guidance,” but were conversational statements to Spurling, who was his friend and frеquent companion, of his intent to kill his wife and her lover. The ministerial privilege was nоt applicable.
Burger’s arguments that the court’s numerous charges on voluntary manslaughter were erroneous are without merit. The state’s evidence showed рremeditated murder, and the only defense was insanity (and a claim of justifiable homiсide). Burger at no time denied the killings; his testimony was that when he found them together his mind went blank and he remembered nothing until after the shootings. This is not evidence of "passion,” seе Code Ann. § 26-1102, and voluntary manslaughter is not applicable to these facts and need not have been charged. E.g.,
Reeves v. State,
A charge that malice is presumed from an intentional killing and that it rests with defendant to show justification or excuse unlеss they appear from the state’s evidence, is not an unconstitutionally burden-shifting сharge.
Davis v. State,
3. The first section of this opinion shows that the remaining enumerations of error dеaling mostly with refusals to charge are without merit.
Judgment affirmed.