91 Ga. 729 | Ga. | 1893
As the ease must be tried again, we do not wish to be understood as stating as an undisputed fact that Stephens did know, for sometime before he was killed, of his wife’s adultery with Wilkerson. On the contrary, the State strenuously contended that he did not, that he merely suspected her guilt, and that he laid a trap to verify the correctness of his suspicions, and finding them well founded, shot and undertook to kill the adulterer as soon as the discovery was made. We have, therefore, with great brevity, simply undertaken to set forth enough to show that there was strong evidence to support the contention of the defence that the deceased knew, with certainty, of his wife’s infidelity to him and of her adultery with Wilkerson, and that he laid the trap, not for the purpose of proving the correctness of mere suspicions, but for the deliberate purpose of catching and surprising his wife and her paramour in an act of which he already knew they had been repeatedly guilty, and then killing the paramour, not to prevent the adultery but to obtain revenge upon the adulterer. The contentions of the State and the accused were as above stated. What the real truth is we do not decide, but we leave open for determination by the jury, at the next hearing, the vitally important issue thus made.
Drysdale v. The State, 83 Ga. 744, does not in the least conflict with this view. In that ease it was held, that
The strongest case, perhaps, in our reports, asserting the right of a husband to slay the seducer of his wife, is that of Biggs v. The State, 29 Ga. 723, and it falls very far short of sustaining the doctrine that a husband who knows for weeks of his wife’s guilt, and does nothing to put a stop to it, may then form a deliberate plan to catch her in the guilty act for the purpose of slaying her paramour. Such a slaying would be murder, and nothing else. Judge Holt had charged the jury that under no circumstances would a man be justifiable in taking the life of another who attempts the seduction •of his wife. This charge was too strong, and Judge Lumpkin said, in effect,' it was the privilege of the jury to determine whether the strong arm of -the husband may not interfere to shield and defend the wife from
The law permits and will justify the homicide of another by the husband to prevent the seduction of the wife, or even to prevent the committing with her of a single act of adultery, if by his previous conduct he has not forfeited the right. Nay more, the law will sometimes excuse the husband for slaying the seducer of his wife, immediately after the guilty act is over, if he acts promptly and in that burst of passionate indignation which overwhelms him upon discovering the outrage which has been done him. Even where a husband suspects the fidelity of his wife, he may watch, and may seek and make opportunities to test the correctness of his suspicions; and upon finding that they are true, he may, upon catching the adulterer in the criminal act, or under circumstances showing it has just taken place or is about to begin, justifiably slay the adulterer. But the law has never in any civilized country justified, nor, in our opinion, ever will justify, the killing by a husband of an adulterer of whose guilt he had long known, and towards whom he had manifested a friendly feeling; certainly not when, in addition to these facts, it also appears that the adulterer was aware of the husband’s knowledge of his guilt.
It is conceivable that one man may invite another to share his marriage bed; and where this is done, it could not for a moment be contended that if the husband surprised the other in an act of adulteiy with his wife, he would be justifiable in slaying the adulterer. Where a husband connives at, and tacitly consents to adulterous relations between his wife and another man, and such connivance and consent are known to the latter, it is somewhat in the nature of an invitation to debauch the wife, the difference between such conduct and a positive
The rule we lay down in the present case is no new doctrine in Georgia. In Hill v. The State, 64 Ga. 469, Jackson, Justice, said, “our law broadly separates the act of deliberately seeking another and slaying him for past wrongs, however heinous they may be, from the act of slaying another to prevent his doing a present wrong, or future wrong imminently impending. Whenever done to avenge the past, it is not justifiable; when done under pressing necessity to defend life, or limb, or wife, or child, or habitation, or property, against felonious attack on either, it is justifiable.” And in that case it was held that in order to justify the killing, it must have been done to prevent the deceased from attempting or consummating the impending adultery with the wife, and not to avenge a past adultery with her. Again, in Cloud v. The State, 81 Ga. 450, Blandford, Justice, said: “ We do not think that any man is justifiable in killing another who has committed adultery with his wife, after the adultery has been committed for that would seem to be killing in a spirit of revenge^ which would make it murder. The killing must be done to prevent the adultery, and there must be a necessity for it. The taking of human life must be necessary to prevent this great wrong upon the peace and happi
If the theory of the defence be true, viz: that Stephens was attempting to kill Wilkerson for the purpose of avenging past wrongs of which Stephens had full knowledge, then Stephens was certainly endeavoring by violence and surprise to commit upon Wilkerson a crime amounting to at least voluntary manslaughter, which, under our law, is a felony; and this being true, Wilkerson had the undoubted light, under the plain letter of section 4330 of the code, to defend himself even to the extent, if necessary, of taking his assailant’s life. We repeat again, out of abundant caution, that we do not wish to be understood as deciding that this theory of