Vaughan v. StateVaughan v. State
Tbе foregoing summary oftbe evidence suffices as a general outline of tbe facts surrounding tbe difficulty. Tbe defendant insists that be fired tbe fatal shot *474 in defense of his father, and he thereby assumed under the law the same attitudе, so far as his right to invoke the doctrine of self-defense is concerned, which his father occupied with reference to the difficulty. Upon this theory the cause was tried. All the evidence tends tо show that the defendant did not fire the fatal shot until after he had seen his father felled to the ground by the blow inflicted by deceased with a glass demijohn, and that he fired immediately upon seeing his father so struсk. He had only recently 'arrived upon the scene, and the jury could infer that he had no knowledge of what had previously occurred. There was also evidence tending to show there were рreviously no ill feelings between the deceased and defendant or defendant’s father.
The question is presented for determination here as to whether or not the facts and circumstancеs of this case call for instructions by the court to the jury upon manslaughter in the first degree. This we consider the question of prime importance on this appeal.
“Whether or not the homicide is thе offspring of malice is the characteristic which distinguishes murder and manslaughter. In consideration of the infirmities of humanity, the law regards a sudden transport of passion, caused by adequate provоcation, as sufficient to rebut the imputation of malice which would otherwise arise. In such case, the law imputes the homicide to inherent frailty, instead of malice, or formed design. * * * A killing in sudden passiоn, excited by sufficient provocation, without malice, is manslaughter.” Reeves v. State,186 Ala. 14 ,65 South. 160 .
“The distinction between murder and voluntary manslaughter is found in the dividing line between malicious action on the one hаnd and action in the heat of passion on the other. Malice and heat of passion cannot coexist. Again, voluntary manslaughter differs from homicide which the law deems excusable beсause committed in self-defense in that in the one case there is an apparent necessity for self-preservation to kill the aggressor, and in the other no necessity at all.” 13 R. C. L. 786; State v. Roberts,8 N. C. 349 ,9 Am. Dec. 643 .
“A killing in sudden passion excited by sufficient provocation, without malice, is manslaughter, ‘not because the law supposes that this passion made him [the slayer] unconscious of what he was about tо do, and stripped the act of killing of an intent to commit it, but because it presumes that passion disturbed the sway of reason, and made him regardless of her admonitions. It does not look upon him as tеmporarily deprived of intellect, and therefore not an accountable agent, but as one in whom the exercise of judgment is impeded by the violence of excitement and acсountable therefor as an infirm human being.’ ” Smith v. State,83 Ala. 26 ,3 South. 551 .
The case of Smith v. State, supra, is cited in note to Johnson v. State,'9 Ann. Gas. 923, where are to be found several authorities bearing upon the question of thе extent of mental disturbance, essential to passion, which may reduce felonious killing to manslaughter. See, also, Martin v. State,
Much discussion of the question here under consideration is found in Commonwealth v. Paese,
“What is sufficient provocation for this purpose has not been exactly defined, and is probably incapable of exact definition, for it must vary with the myriad shifting circumstances of men’s temper and quarrels. It is a concession to the infirmity of human nature, not an excuse for undue or abnormal irascibility, and, there.fore, to be considered in view of all the circumstances. * * * On the other hand, certain circumstances have been held to be sufficient provocation. Thus, in general, serious injury immediately inflicted or threatened, to wife (or husband), child or servant will, on account of the relationship of the parties, reduce the killing to manslaughter in similar cases as if the injury had been to sеlf.”
In the note to this case the author makes the following observation:
“The reported ease draws a distinction between a homicide committed by a friend of the person killed or assaulted and a homicide committed by a relative of such person. On achount of the relationship of the parties, it is usually held that the killing or assaulting of a near relative is a provocation legally sufficient to produce passion, which reduces to manslaughter a murder committed by a person while he is incapable of cool reflection.”
A number of cases are there сited by the author in support of this statement, together with the following quotation from Guffee v. State, 8 Tex. App. 187:
“Certainly, to one at all familiar with the promptings of the human heart and the motives by which men аre governed in their resentments and affections, it cannot be a matter of serious question that the death of a brother by the violence of another, in the immediate presence of one, is better calculated to produce in a person of ordinary temper, a greater degree of anger, rage, or resentment, than any of the causes particularly designated in the statute, and that such an occurrence is amply sufficient to render the mind incapable of cool reflection.”
The question was squarely presented in the case of Pearcе v. State,
“It is not our understanding of the law that if a man provokes a difficulty, and then after-wards is forced, by an unanticipated deadly assault of his adversary, to take his adversary’s life to protect his own, such a man is as matter of law necessarily guilty of murder in one of its degrees,' and not of manslaughter in the first degree.”
Charges 16 and 27 embraced the constituent elements of manslaughter in the-first degree, and are applicable to the tendencies of the evidence in this case. The defendant in no way received the benefit of a consideration by the jury of his guilt оf this degree of the homicide. The right of the defendant to have the jury instructed as to the law of manslaughter in the first degree affected most seriously his substantial rights, and the refusal of charges 16 and 27 must work a reversal of the cause. Reeves v. State, supra.
For the error indicated, the judgment is reversed, and the cause remanded.
Reversed and remanded.