75 P. 731 | Utah | 1904
having made a statement of the facts as above, delivered the opinion of the court.
It is true that the answer of the witness to the disputed question has some significance in this case. It tends to show that the actions and conduct of Mr. Tib-bitts — who, it appears, was present when she related her fears because of her husband — towards Mrs. Botha may have been induced through sympathy, rather than improper relations or motives. It also discloses the fact that the prisoner had himself. created a fear , in the breast of his wife that he would kill her, and that, under existing circumstances, he had no right to assume on the fatal night, as by his testimony he affects to have assumed, that undue familiarity existed between his victims. Such testimony tends to rebut the idea, that he was acting under an uncontrollable impulse in the heat of passion. If, therefore, the prosecution had elicited the evidence in dispute in the examination of the witness in chief, before the defense had introduced the subject, we might hesitate to hold, even under the circumstances of this case, that the question was improper. "Where, however, the defendant in a criminal action, through his counsel, upon cross-examination, sees fit to open up an avenue for questions, which, otherwise, it would be improper for the prosecution to propound, he must be content to take the consequences which legitimately flow from his indiscretion. Thereafter he will not be heard to complain of that for which he was himself responsible. State v. Mortensen, 26 Utah 312, 73 Pac. 562.
The appellant also complains of the action of the court respecting some of the testimony of the witness
In People v. Halliday, 5 Utah 467, 473, 474, 17 Pac. 122, this court, construing a like statute, said: “The provision of law quoted justifies a homicide committed by the husband in a sudden heat of passion caused by the attempt of the man slain to defile his wife, or caused by her defilement. But the killing must be without deliberation after knowledge of the fact. The law will not permit the husband to say that he slew the defiler of his wife in a sudden heat of passion after deliberating upon the defilement 24 hours. . . . The law is
As we interpret the statute, it was intended to so modify the common law that a homicide would be justified where by that law the facts and circumstances would reduce the offense to manslaughter. It follows, therefore, that the proof of facts and circumstances
The judgment must therefore be affirmed, and the case remanded for further proceedings according to law. It is so ordered.