Mr. Justice Magruder
delivered the opinion of the court:
It is admitted that the plaintiff in error killed his wife. The only question, is whether or not his statement is true that he killed her accidentally, mistaking her for a burglar, or whether he willfully murdered her. He states that, when he reached home, she told him that a burglar had tried to make an entry into the house; and that there had been previously thereto one or more attempts to enter the house.
Section 155 of chapter 38, of the Revised Statutes, being the Criminal Code, is as follows: “The killing being proved, the burden of proving circumstances of mitigation, or that justify or excuse the homicide, will devolve on the accused, unless the proof on the part of the prosecution sufficiently manifests that the crime committed only amounts to manslaughter, or that the accused was justified or excused in committing the homicide.” (Hurd’s Rev. Stat. of Ill. 1899, p. 596).
Whether the homicide was justified or excusable for the reasons stated by the plaintiff in error, was a question of fact for the determination of the jury. In Steffy v. People, 130 Ill. 98, which was an indictment for an assault with intent to murder, we said (p. 99) : “Whether the evidence warranted the verdict was a question of fact peculiarly within the province of the jury to determine, and great weight is to be given to their finding. Courts are reluctant to substitute their opinion for that of the jury upon controverted questions of fact. To justify this court in reversing, on the ground that the evidence was insufficient, it must appear that the finding of the jury is not sustained by the evidence, or that it is palpably contrary to the decided weight of the evidence.” (Gainey v. People, 97 Ill. 270; McCoy v. People, 175 id. 224; Gilman v. People, 178 id. 26; Johnson v. People, 202 id. 53). In McCoy v. People, supra, which was an indictment for murder, it was said (p. 229) : “Plaintiff in error insists that the evidence is not sufficient to sustain a conviction. The law has placed the determination of that question with the jury, and it is only when this court is satisfied, from a careful consideration of the whole testimony, that there is a reasonable doubt of the guilt of the accused, that it will interfere with the verdict of the jury on the ground that the evidence does not support the verdict.” We are unable to say, in the case at bar, that the evidence does not sustain the verdict of the jury.
There was much in the conduct of the plaintiff in error after the killing of his wife, which tended to confirm his statement in regard to it. But there was' also much in the evidence to contradict the truthfulness of his statement.
In the first place, the evidence showed that the plaintiff in error and his wife, both before they came to East St. Louis and after they came there, lived an unhappy life and quarreled much with each other, and separated several times from each other. One witness, who was a next door neighbor when they lived in Water'Valley, Mississippi, states that not a day passed when they did not quarrel; that one day he knocked his wife out of the back door of tire house, and hit her on the left cheek, and struck her twice in the face with his fist; that on several occasions his wife was heard screaming, and he was heard cursing her. Another witness testified that, when they lived at Water Valley, Parsons and his wife were engaged in a quarrel up-stairs and he cut up her dress and she came out of the house crying; that on the next day he stated to witness that he could not get along with her; that he cut up her dress for spite, and was going to leave her, and did leave her, and stayed away eight .or ten days, and finally they made up and went back together to the house; that he said he could not get along with her, and that she was hard to get along with. Another witness says that at one time he heard some one screaming and hollering, and went to see what the matter was, and Mrs. Parsons was getting out of the window of the house, screaming like some one in trouble or distress; that Parsons locked her out of the house, and she stayed at the witness’ house all night, and next morning plaintiff in error said that she was hard to get along with; that they could not get along together, and he was going to leave; that he left her, and she came to witness’ house and stayed a couple of days when she went home to her mother at Paducah. Another witness testifies that, when they lived at Water Valley, Mrs. Parsons was taken sick, and the neighbors brought food for her, and Parsons refused to pay for it, and came home only occasionally during her sickness. Another witness testified that she heard him tell his child to call her mother ugly names; that he said, “Call your mother a bitch and a liar and a whore and a fool.” Another witness testifies that at Paducah, Kentucky, plaintiff in error slapped his wife, and knocked her down.
There is also testimony on both sides of the question whether or not it was possible for the plaintiff in error to have shot his wife through the door, leading into the adjoining room in the manner, in which he stated that he fired the shot. One of the physicians, who called to see the deceased after she was shot, stated that the window of the front room could not be seen by any one in the bed, except by a man sitting near the foot of the bed with his feet on the floor, and leaning forward. Another physician states, in substance, that one, standing at the foot of the bed and on the right-hand side, could see through the door, but it is quite clear from the evidence that any one lying or sitting on the bed in any position could with difficulty see the window in the front room through the door. Plaintiff in error says that, when he heard the noise at the window which aroused him fronr sleep, he took his revolver from under his pillow, and in a semi-conscious condition raised up and fired. From all the evidence upon this subject- it was for the jury to' say whether it was possible for him to have shot through the doorway towards the window with such deadly accuracy, while he was half asleep and could see nothing on account of the darkness. One of -the physicians says that, when he asked Mrs. Parsons how it happened, she said: “He says he took me for a burglar.”
Plaintiff in error gave contradictory statements as to the pistol, with which he did the shooting. He told the police officer who arrested him about six o’clock in the morning that “his brother was here on a visit last Christmas and left the pistol with him, and ever since then he had no use for it, and he lent it to a man by the name of Taylor, who was bar-tender at this place, where he was working. He told me this before his wife died; that Taylor told him last night that he had no more use for the gun, that he had better take the gun home, and that Taylor gave him the gun, ‘and if I had not taken the gun home I would not have shot my wife.’ Mr. Taylor is bar-tender at Mr. Jones’, at 351 Broadway, East St. Louis. He told me he never carried it before. The defendant was very excited, I must say. He seemed as though he was very sorry for what he had done, the way it looked to me. He was not crying after our first conversation with him.” The plaintiff in error in his testimony said that he carried the pistol with him backwards and forwards when he went home at night, and that he had the pistol with him under his pillow.
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Mr. Justice Magruder
delivered the opinion of the court:
It is admitted that the plaintiff in error killed his wife. The only question, is whether or not his statement is true that he killed her accidentally, mistaking her for a burglar, or whether he willfully murdered her. He states that, when he reached home, she told him that a burglar had tried to make an entry into the house; and that there had been previously thereto one or more attempts to enter the house.
Section 155 of chapter 38, of the Revised Statutes, being the Criminal Code, is as follows: “The killing being proved, the burden of proving circumstances of mitigation, or that justify or excuse the homicide, will devolve on the accused, unless the proof on the part of the prosecution sufficiently manifests that the crime committed only amounts to manslaughter, or that the accused was justified or excused in committing the homicide.” (Hurd’s Rev. Stat. of Ill. 1899, p. 596).
Whether the homicide was justified or excusable for the reasons stated by the plaintiff in error, was a question of fact for the determination of the jury. In Steffy v. People, 130 Ill. 98, which was an indictment for an assault with intent to murder, we said (p. 99) : “Whether the evidence warranted the verdict was a question of fact peculiarly within the province of the jury to determine, and great weight is to be given to their finding. Courts are reluctant to substitute their opinion for that of the jury upon controverted questions of fact. To justify this court in reversing, on the ground that the evidence was insufficient, it must appear that the finding of the jury is not sustained by the evidence, or that it is palpably contrary to the decided weight of the evidence.” (Gainey v. People, 97 Ill. 270; McCoy v. People, 175 id. 224; Gilman v. People, 178 id. 26; Johnson v. People, 202 id. 53). In McCoy v. People, supra, which was an indictment for murder, it was said (p. 229) : “Plaintiff in error insists that the evidence is not sufficient to sustain a conviction. The law has placed the determination of that question with the jury, and it is only when this court is satisfied, from a careful consideration of the whole testimony, that there is a reasonable doubt of the guilt of the accused, that it will interfere with the verdict of the jury on the ground that the evidence does not support the verdict.” We are unable to say, in the case at bar, that the evidence does not sustain the verdict of the jury.
There was much in the conduct of the plaintiff in error after the killing of his wife, which tended to confirm his statement in regard to it. But there was' also much in the evidence to contradict the truthfulness of his statement.
In the first place, the evidence showed that the plaintiff in error and his wife, both before they came to East St. Louis and after they came there, lived an unhappy life and quarreled much with each other, and separated several times from each other. One witness, who was a next door neighbor when they lived in Water'Valley, Mississippi, states that not a day passed when they did not quarrel; that one day he knocked his wife out of the back door of tire house, and hit her on the left cheek, and struck her twice in the face with his fist; that on several occasions his wife was heard screaming, and he was heard cursing her. Another witness testified that, when they lived at Water Valley, Parsons and his wife were engaged in a quarrel up-stairs and he cut up her dress and she came out of the house crying; that on the next day he stated to witness that he could not get along with her; that he cut up her dress for spite, and was going to leave her, and did leave her, and stayed away eight .or ten days, and finally they made up and went back together to the house; that he said he could not get along with her, and that she was hard to get along with. Another witness says that at one time he heard some one screaming and hollering, and went to see what the matter was, and Mrs. Parsons was getting out of the window of the house, screaming like some one in trouble or distress; that Parsons locked her out of the house, and she stayed at the witness’ house all night, and next morning plaintiff in error said that she was hard to get along with; that they could not get along together, and he was going to leave; that he left her, and she came to witness’ house and stayed a couple of days when she went home to her mother at Paducah. Another witness testifies that, when they lived at Water Valley, Mrs. Parsons was taken sick, and the neighbors brought food for her, and Parsons refused to pay for it, and came home only occasionally during her sickness. Another witness testified that she heard him tell his child to call her mother ugly names; that he said, “Call your mother a bitch and a liar and a whore and a fool.” Another witness testifies that at Paducah, Kentucky, plaintiff in error slapped his wife, and knocked her down.
There is also testimony on both sides of the question whether or not it was possible for the plaintiff in error to have shot his wife through the door, leading into the adjoining room in the manner, in which he stated that he fired the shot. One of the physicians, who called to see the deceased after she was shot, stated that the window of the front room could not be seen by any one in the bed, except by a man sitting near the foot of the bed with his feet on the floor, and leaning forward. Another physician states, in substance, that one, standing at the foot of the bed and on the right-hand side, could see through the door, but it is quite clear from the evidence that any one lying or sitting on the bed in any position could with difficulty see the window in the front room through the door. Plaintiff in error says that, when he heard the noise at the window which aroused him fronr sleep, he took his revolver from under his pillow, and in a semi-conscious condition raised up and fired. From all the evidence upon this subject- it was for the jury to' say whether it was possible for him to have shot through the doorway towards the window with such deadly accuracy, while he was half asleep and could see nothing on account of the darkness. One of -the physicians says that, when he asked Mrs. Parsons how it happened, she said: “He says he took me for a burglar.”
Plaintiff in error gave contradictory statements as to the pistol, with which he did the shooting. He told the police officer who arrested him about six o’clock in the morning that “his brother was here on a visit last Christmas and left the pistol with him, and ever since then he had no use for it, and he lent it to a man by the name of Taylor, who was bar-tender at this place, where he was working. He told me this before his wife died; that Taylor told him last night that he had no more use for the gun, that he had better take the gun home, and that Taylor gave him the gun, ‘and if I had not taken the gun home I would not have shot my wife.’ Mr. Taylor is bar-tender at Mr. Jones’, at 351 Broadway, East St. Louis. He told me he never carried it before. The defendant was very excited, I must say. He seemed as though he was very sorry for what he had done, the way it looked to me. He was not crying after our first conversation with him.” The plaintiff in error in his testimony said that he carried the pistol with him backwards and forwards when he went home at night, and that he had the pistol with him under his pillow. The witness, Taylor, testified that plaintiff in error never gave him any pistol, and never asked him to keep any pistol; that there was one in the drawer at the saloon, but he “could not say whether that is the one or not; I could, not say whether there was a pistol in the drawer after that night or not. He had access to the drawer where the pistol was kept. Mr. Parsons was running the crap game. * * * He left at nine o’clock as near as I can remember. He seemed to be all right, sober.” The testimony of plaintiff in error in regard to the pistol, as given upon the trial, differs from the statement made by him to the policeman, .who arrested him, and is contradicted in material respects by the evidence of the witness, Taylor.
Without further discussion or analysis of the testimony it is sufficient to say that it is not of such a character, as to justify our interference with the verdict of the jury, nor can we say that such verdict is not supported by the evidence.
It is contended by the plaintiff in error that the court erred in admitting evidence as to quarrels and disagreements between plaintiff in error and his wife. But we are of the opinion there was no error in permitting such testimony to be introduced. It has been held that, where a husband or wife is charged with the murder of the other, it is competent to prove their mutual conduct towards, and treatment of each other, as manifested by acts and words. Wharton in his work on Criminal Evidence, (8th ed. sec. 786), states the rule as follows: “Long ill-treatment by husband of wife; misconduct leading to a suit against him by his wife to compel good behavior; and continual quarrels between husband and wife are relevant to prove motive in cases of marital homicide.”
Objection is made to the first instruction, given on behalf of the prosecution, mainly upon the ground that it is argumentative in character. It states in substance that circumstantial evidence in criminal cases is the proof of such facts and circumstances, connected with or surrounding the commission of the crime, as tends to show the guilt or innocence of the party charged, and that, if the facts and circumstances shown by the evidence in this case are sufficient to satisfy the jury of the guilt of the plaintiff in error, they would be authorized in finding him guilty. It properly states to the jury that they must be satisfied of the defendant’s guilt beyond a reasonable doubt, and that circumstantial evidence is legal evidence. The doctrine of the instruction is supported by the following cases decided by this court: Adams v. People, 109 Ill. 444; Bressler v. People, 117 id. 422; Gannon v. People, 127 id. 507; Carlton v. People, 150 id. 181; Dunn v. People, 158 id. 586; Keating v. People, 160 id. 480.
Objection is made that the court gave for the prosecution the third instruction, given by it, which is as follows: “The jury are instructed that malice includes not only anger, hatred and revenge, but every other unlawful and unjustifiable motive. Malice is not confined to ill-will towards an individual, but is intended to denote an action flowing from any wicked and corrupt motive—a thing done with a wicked mind, where the fact has been attended with such circumstances as evince plain indications of a heart regardless of 'social duty, and fatally bent on mischief; hence malice is implied from any deliberate or cruel act against another, however sudden, which shows an abandoned and malignant heart.” This instruction was approved by this court in Jackson v. People, 18 Ill. 269, and McCoy v. People, 175 id. 224.
Objection is also made to the fifth instruction, given for the State. We see no objection to this instruction, as it merely defines justifiable homicide in the same language, literatim et verbatim, as is used in section 148 of the Criminal Code. (Hurd’s Rev. Stat. of 1899, p. 595).
It is also claimed that the court erred in refusing to give the first refused instruction, asked by the plaintiff in error. This instruction told the jury that “as a matter of law, if you believe from an examination of the evidence in certain of its aspects that the defendant is guilty, and if you further believe from an examination of other aspects of the evidence, that the defendant is not guilty, then you should adopt that view of the evidence which will lead to the acquittal of the defendant rather than that view which leads to his conviction, if that view of the evidence leading to his acquittal is as reasonable as that which leads to his conviction.” There was no error in refusing this instruction, inasmuch as one aspect of the evidence might have been that all the testimony on behalf of the People was false and perjured, and another aspect might have been that all the testimony on the part of the plaintiff in error was true, and the jury would be obliged to find the defendant not guilty. Substantially a similar instruction was condemned by this court in Adams v. People, supra. Complaint is made that the court refused to give the second refused instruction asked by the plaintiff in error, which is as follows: “The court further instructs the jury that you must presume the defendant to be innocent until his guilt is fully established by legal evidence, beyond a reasonable doubt, and the presumption of innocence prevails throughout the trial, and it is your sworn duty as jurors trying this case, to reconcile, if possible, the evidence in this case with this presumption.” This instruction might well have been given, but its refusal was not erroneous for the reason that its substance is embodied in other instructions, which were given for the plaintiff in error. The first instruction is as follows: “The court instructs the jury that the defendant at the outset of the trial is presumed by the law to be an innocent man, and he is not required to prove himself innocent or to put in any evidence at all upon that subject. And in considering the testimony in this case, you must look at the testimony and view it in the light of the presumption which the law clothes the defendant with, that he is innocent, and it is a presumption that abides with him throughout the entire trial of the case until the evidence convinces you to the contrary beyond a reasonable doubt.”
Instruction, numbered' 6, given for the plaintiff in error is as follows: “The court further instructs the jury that the law presumes the defendant to be innocent of the charge preferred against him by the indictment returned to the court by the grand jury, until all of the allegations in such indictment have been proven to be true, beyond a reasonable doubt, and the law is that he is entitled to have this jury indulge in such presumptions of innocence towards -him until you may believe from all the evidence, that he has been proven guilty beyond a reasonable doubt, and the fact that he has been indicted by the grand jury upon a charge of murder and is now being tried upon that charge is not evidence of his guilt, and you are not to consider that fact, or the indictment in this cause, any evidence of his guilt, and if you convict the defendant you must do so upon all the evidence in the case, and you cannot give any weight to any belief to which you may arrive, except that belief be founded upon the facts and evidence introduced before you in this case. And if after you have heard all the evidence, you then have a reasonable doubt in your minds as to the defendant’s guilt, then it is your duty to find him not guilty.”
The seventh instruction, given for the plaintiff in error, told the jury, among other things, as follows: “The burden of proof is upon the People in this case to show the guilt of the defendant, and all the presumptions of the law, independent of the evidence, are in favor of his innocence. The law presumes every defendant who has been indicted and charged with crime, to be innocent until he has been proven guilty, beyond all reasonable doubt. And in this case, the court instructs you that if, after you have considered all the evidence in the case, you then have a reasonable doubt as to the guilt of the defendant, then the defendant is entitled to the benefit of that doubt, and you should acquit him.” . Complaint is also made of the refusal of the court to give the third refused instruction asked by the defendant. Said third refused instruction is as follows: “The jury are further instructed that in order to convict the defendant upon circumstantial evidence, it is necessary not only that all the circumstances concur to show that he committed the crime charged, but that those circumstances are inconsistent with any other reasonable conclusion than that of his guilt. It is not sufficient to entitle the prosecution to a conviction that the circumstances coincide with, account for, and render probable the hypothesis of guilt sought to be established by the prosecution, but those circumstances must exclude, to all moral certainty, every other hypothesis but the single one of the guilt of the defendant, or the jury must find the defendant not guilty.” The substance of this instruction is set forth in the fourth instruction, given for the plaintiff in error, to-wit: “The court further instructs the jury that to warrant the conviction of the defendant, each fact necessary to establish his guilt, must be proven by competent evidence, beyond a reasonable doubt, and all the facts and circumstances proven should not only be consistent with the guilt of the defendant, but inconsistent with every other reasonable hypothesis or conclusion than that of guilt, to produce in your minds a reasonable and moral certainty that the defendant committed the offense as charged in the indictment.”
The judgment of the circuit court is affirmed.
Judgment affirmed.