| Ala. | Nov 15, 1892
The defendant was convicted of murder in the second degree. The exceptions reserved arise from a charge given at the request of the prosecution, and the refusal to charge as requested by the defendant. The charge given for the prosecution was as follows : “If the jury believe all the evidence, they can not acquit the defendant.” This charge instructs the jury, in effect, that if they believe the evidence, the defendant must be eonvicted of some offense. The defendant reserved an exception, fo the giving of this charge. The jury are hot required, under this charge, to believe the evidence beyond a reasonable doubt. It is made sufficient for conviction, if they only believe the evidence. Prosecuting attorneys should be careful, in the preparation of charges, that plain principles of law are not violated; and
Where one person detects another in the act of adultery with his wife, and immediately slays the adulterer or his wife, as matter of law the provocation is sufficient to reduce-the killing to manslaughter. The law does not declare that any thing less than actual sexual intercourse is a sufficient provocation, as a matter of law, to reduce the offense from murder to manslaughter. It may be that the detection of another, under circumstances such as testified to by the plaintiff, may provoke and engender passion to such a degree as to overthrow reason, and if, under the influence of passion thus aroused, he immediately attack the offending party and slay him, before cooling-time has intervened, not from maliqe or unlawful formed design, but from such passion thus provoked, the offense may be manslaughter. Whether the party acted under the influence of such a passion, and whether the provocation was sufficient, and whether there had been “cooling-time,” are questions of fact to be determined by the jury. The principle we announce is, that the law does not declare the provocation sufficient, unless the parties are detected in the act; but a jury may say whether the compromising position of the parties was sufficient to arouse passion in the husband to such a degree as to overthrow reason, just as a jury may say in some other eases whether the offense was the result of sudden and sufficient-provocation to reduce the offense from murder to.manslaughter. Charge one, requested by the defendant and refused, was faulty, in that it assumed, as matter of law, that the provocation was sufficient. It should have been left to the jury to say, from the evidence, whether the provocation was sufficient, and whether he acted under the influence of sudden heat of passion, thus engendered, and before cooling-time took the life of the deceased.
There was no error in refusing the 2d and 3d charges requested by the defendant. There is no law, unless made so by statute, which wholly excuses the husband from liability for taking the life of the wife or her paramour, although he slay them or either while in the act of adultery. The 3d charge asserts a contrary principle. The 2d charge is argumentative, confused and misleading, and was properly refused.
Reversed and remanded.