The appellant was charged in count I with the murder of Violet Louise Nyland, his wife, and in count II with the murder of Albert Hakkarainen. He was convicted of murder in the first degree under count I and murder in the second degree under count II, and was sentenced to life imprisonment for the first offense and to a maximum of twenty years in the penitentiary for the second, the sentences to run concurrently. From this judgment, he appeals.
Error is assigned to the court’s refusal to give requested instructions which embodied appellant’s theory of justification, and to the giving of an instruction wherein the jury was told that, as a matter of law, the appellant’s acts were neither excusable nor justifiable.
Appellant admitted that he shot his wife and her companion on October 17, 1953, while they were sitting in an automobile parked in front of the Blue Eagle Tavern in Aberdeen. The theory of his defense, on which the trial court refused instructions, was that the killings were necessary to prevent the commission of a felony against him, inasmuch as he had reasonable cause to believe that his wife and Hakkarainen were about to commit an act of adultery, *242 which, under our cases, is a crime against the unoffending spouse.
The statute on which appellant relies is RCW 9.48.170 (Rem. Rev. Stat., § 2406), which reads:
“Homicide is also justifiable when committed either—
“(1) In the lawful defense of the slayer, or his or her husband, wife, parent, child, brother, or sister, or of any other person in his presence or company, when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony or to do some great personal injury to the slayer or to any such person and there is imminent danger of such design being accomplished; or
“(2) In the actual resistance of an attempt to commit a felony upon the slayer, in his presence, or upon or in a dwelling or other place of abode, in which he is.”
This is but a statutory declaration of the common law.
State v. Meyer,
“The class of crimes in prevention of which a man may, if necessary, exercise his natural right to repel force by force to the taking of the life of the aggressor, are felonies which are committed by violence and surprise; such as murder, robbery, burglary, arson, breaking a house in the day time with intent to rob, sodomy, and rape. Blackstone says: ‘Such homicide as is committed for the prevention of any forcible and atrocious crime is justifiable by the law of nature; and also by the law of England as it stood as early as the time of Brackton;’ and he specifies, as of that character, those which we have enumerated. No others were specified by Hale or Hawkins, who wrote before him on the Pleas of the Crown, or have been specified by any writer since.” State v. Moore,31 Conn. 479 , quoted with approval in State v. Marfaudille,48 Wash. 117 ,92 Pac. 939 (1907).
The true reason of the rule, as we said in the Marfaudille case, is stated in United States v. Gilliam, Fed. Cas. No. 15205a:
“The law is that a man may oppose force with force in defense of his person, his family or property against one who manifestly endeavors by violence to commit a felony, as *243 murder, robbery, rape, arson or burglary. In all these felonies, from their atrocity and violence, human life either is, or is presumed to he in peril.”
We have consistently held, in cases decided since the enactment of the statute, that a killing in self-defense is not justified unless the attack on the defendant’s person threatens life or great bodily harm.
State v. Blaine,
Adultery is not a crime which imperils the life of the unoffending spouse or threatens bodily harm to him. Appellant cites the case of
State v. La Bounty,
We do not, by any means, purport to sanction adulterous conduct nor to underestimate the gravity of its consequences, not the least of which is the great distress it almost inevitably produces in the mind and heart of the innocent wife or husband; but if the thoughts and emotions which it arouses are vindictive, the law has provided a means of vindication. Thé unoffending spouse may prosecute for adultery or he may forgive; he may obtain his release from the marriage contract and may have his civil remedy against the paramour. But in no event may he take the life of a human being, either to prevent the commission of an act of adultery or to effect his revenge upon the adulterers.
It is not error to refuse a requested instruction which does not correctly state the law.
State v. Bixby,
27 Wn. (2d) 144,
*244 In one of its instructions, the court defined first degree murder as “the killing of a human being by another, neither excusable nor justifiable, with a premeditated design to effect the death of the person killed.” Second degree murder was defined as “the killing of a human being, neither excusable nor justifiable, committed with a design to effect the death of the person killed, but without premeditation.”
Appellant complains of a further instruction wherein the jury was told that there was no evidence on which it could base a finding that the shootings were either excusable or justifiable. The instruction, appellant contends, was a comment on the evidence and amounted to a peremptory instruction to find the appellant guilty. These arguments are answered in our opinion in
State v. Hartley,
25 Wn. (2d) 211,
“There being no evidence from which the jury could find that the homicide was either excusable or justifiable, the court properly decided as a matter of law that those issuable elements of the crime charged could not, and should not, be considered by the jury. That portion of instruction No. 6 cannot be considered as a comment on the evidence, because no evidence as to those features was presented.”
The instruction was not equivalent to a directed verdict. Although the jury was not allowed to consider whether the killings were excusable or justifiable, under the instructions given, it was free to determine whether the killings were *245 perpetrated by the appellant and, if so, whether they were premeditated. There was no error in the giving of this instruction.
Finally, appellant claims that the trial court abused its discretion by admitting in evidence photographs of the dead bodies of the victims, taken in the mortuary shortly after the shootings. Testimony of the coroner who examined the bodies, he contends, was sufficient to establish the fact and cause of their deaths, the course of the bullets through their bodies, and the nature of the wounds. The photographs had no additional probative force, according to his argument, and were offered solely for the purpose of inflaming the jury.
Four photographs were offered, but, upon objection of the appellant, the court admitted only two of them. The coroner, in describing the wounds inflicted upon the two victims, referred to the photographs. The photographs are, if anything, less disturbing than the verbal description of the injuries given by the examining physician. The fact that they might tend to prejudice or inflame the jury is not a sufficient objection if the pictures are otherwise competent.
State v. Gaines,
Photographs of a deceased person are competent evidence for the purpose of having an examining physician identify the body which he examined.
State v. Hunter,
We have encouraged the use of photographs to aid the jury in understanding the physical facts relevant to the case.
Kelly v. Spokane,
*246 The fact that the trial court admitted in evidence only one photograph of each of the bodies indicates that, in exercising its discretion, it had in mind the legitimate interests of both the state and the appellant. The evidence was strong that the murder of Violet Louise Nyland, if not of Albert Hakkarainen, was • premeditated. The jury nevertheless decided that the death penalty should not be imposed, and there is nothing to indicate that it was influenced by passion or prejudice in reaching its verdict. The assignment of error is without merit.
The judgment is affirmed.
Hamley, C. J., Mallery, Hill, and Weaver, JJ., concur.