1. The law classifies cases. The jury determine on the facts in evidence and on the law as given them in charge by the court to what class the particular case belongs. With reference to justifiable homicide the law has specified several instances which will fall within that class and has then added a general description of other instances in these terms: “All other instances which stand upon the same footing of reason and justice as those enumerated, shall be justifiable homicide.” Code, §4334. When the enumerated instances to which this general description refers are examined, it is found that *727in all of them, without exception, one of the elements is present and impending danger, real or apparent. Another suggestion which arises from an examination of these instances is that the killing must be for prevention, and another that it must be necessary, either really or apparently, as a measure of prevention. Code, §§4330-4333. As these several characteristics either expressly ■or by plain and manifest implication mark each and •every one of the enumerated instances, and as they are characteristics involving the principle and reason on which justification depends, they must, as matter of law, be present in each and every one of the non-■enumerated instances in order to put the latter on the .same footing of reason and justice with the former. These characteristics are the very things which make up the reason and justice of the enumerated instances, for in penal law the distinction between prevention and revenge is fundamental. Aggressive acts perpetrated to avenge a past injury are never justifiable. This is a rule without any exception. On the other hand, acts done to prevent an apprehended injury are sometimes iustifiable and sometimes not. If they are done' when the injury is really or apparently about to take place, .and if the doing of them is either really or apparently necessary to prevent it from taking place, they are justifiable provided the gravity of the impending injury be .such as to warrant the means used in the given instance to prevent its perpetration. The injury attempted or contemplated may be so slight as that the law would rather it should not be prevented at all than that it should be prevented at the cost of human life or of great bodily harm. If the line of thought which we have suggested .and pursued be sound, it follows that the law itself virtually says, and consequently that the court may instruct the jury as matter of law, that the killing of a man because of a past attempt by him to debauch the slayer’s *728wife is not justifiable homicide, and that such a killing is not upon the same footing of reason and justice as the instances of justifiable homicide to which §4834 of the code refers. Under the evidence there was really no question for reference to the jury on the subject. But-even had the prevention of a future' act of adultery been the occasion of the killing, the danger must have been present and impending, and the killing to prevent it, in order to be justifiable, must have been necessary or at least apparently necessary. Jackson v. The State, October term, 1892. Ante, 271.
2. The facts of the case touching improper remarks-by counsel for the State in his argument to the jury are set forth in the official report. It will be noticed that the cause of complaint as embodied in the motion for a new trial is somewhat mitigated by the explanatory note-of the presiding judge. But the impropriety was very great, and the court should have unequivocally rebuked the counsel and instructed the jury to disregard entirely the improper remarks, even without any request to do so. The omission to deal thus with the matter is attributable alone, we think, to inadvertence. The failure of the counsel for the accused either to move to have a mistrial declared or to request any charge to the jury on the subject and thus to invoke a ruling by the court, is-all that prevents this from being cause for a new trial. Gross impropriety in the argument of cases seems to be a widely prevalent evil in conducting trials both civil and criminal. It is one which ought speedily to disappear entirely, and for the good of justice and the honor of its administration by judicial tribunals we hope it will.
3. Touching the night session of the court, the facts and circumstances are explained by the presiding judge, and in the light of his explanation there was no error either in holding that session or in the direction given the next morning to the progress of the trial.
*7294. As against the accused there was certainly no error in any of the charges of the court complained of. The verdict was only for voluntary manslaughter. It was-quite as favorable as any that could have been rendered under the evidence and the law applicable thereto. A new trial was properly refused. Judgment affirmed.
