Fish, C. J.
(After stating the facts.)
The instructions of the court, quoted in the statement of facts, were subject to the noted assignments of error thereon, made in the motion for a new trial. It is plain that these instructions were not authorized by the evidence. The jury could not find from the-evidence that Cason, if he assaulted the accused with a deadly weapon, was justified in so doing because the accused was in the act of adultery with Cason’s wife, or that the assault was made upon the accused to prevent him from committing adultery with the wife of Cason. Whatever may have occurred before Cason entered the room where his wife and Yopp were, or whatever may have been the intention of Yopp and Cason’s wife before Cason came into the room,, it is clearly *598evident from the testimony that Cason did not come upon his wife and Yopp while they were committing the act of adultery, or find them in such a situation relatively to each other as to indicate that such act would then be committed unless he, Cason, interfered by violence to prevent it. According to the testimony of both Nat Jones, who was introduced by the State, and Neily Cason, wife of the deceased, who testified in behalf of the accused, when Dock Cason entered the room where his wife and Yopp were, Yopp was sitting on the side of the bed and Cason’s wife was not on or at the bed, but, if Jones was to be believed, she was sitting in a chair by the fireplace; and if her evidence was accepted as true, she was then going from this chair, from which she had just arisen, to the back door to open it for Cason to enter the house. But, even granting that tlie law which the court charged would have- been applicable to the facts if Cason, as soon as he had entered the room, had made .an attack upon Yopp, it is clear that such law was not applicable to the case when the evidence, both for the State and the accused, showed that Cason did not assault Yopp immediately upon entering the room and finding him and Cason’s wife therein, but engaged in a conversation with him, one purpose of which appears to have been to ascertain whether Yopp was armed or not. So, if Cason assaulted Yopp at all, such assault was not made immediately after an act of adultery had been committed by Yopp and Cason’s wife, nor at a time when the commission of such an act by them was imminent. No reasonable mind could conclude ■that Yopp intended to have sexual intercourse with Cason’s wife while both Cason and his 'wife’s nephew were present in the room. It is clear, therefore, that whether Cason made an - asault upon the accused to prevent him from debauching or having illicit intercourse with Cason’s wife was not an issue made by the evidence in the case; and the charge of the court, in which it was-stated that this was an issue, and the instructions to the jury as to the law "applicable thereto, were calculated to mislead the jury and to harmfully affect the rights of the accused, and consequently were'cause for a new trial.
Judgment reversed.
All the Justices concur.