White, Presiding Judge.
Appellant was convicted of manslaughter committed upon one William Chandler; his punishment being assessed at two years’ confinement in the penitentiary. Before the homicide appellant had evidently become dissatisfied with the familiarity, which had existed for some time, as shown in the conduct of his wife towards deceased, and the deceased towards his wife. He may even have entertained suspicions that all was not as it should be between them, or, to say the least of it, he felt that their conduct was highly improper. On the night of the homicide he had evinced this state of feeling of dissatisfaction and suspicion in more than one particular, when [480]*480deceased and his wife bad been seen whispering and “ carrying on together,” before he retired to his bed, leaving his wife, the deceased and his mother still sitting by the fire. But he retired and went to sleep. Hot long after, Chandler, the deceased, left; and not long after he had, ostensibly, gone to his home, defendant’s wife, complaining of feeling sick, went out. She wTas gone so long that defendant’s mother became uneasy, woke defendant up, and told him he had better go and see what was the matter. Defendant finally got up, and, hearing persons talking in his corn-pen, went back into the house, got his gun, went to the corn-pen, found the door open, went in and asked who was there?” After this question had been repeated three times by him, his wife, who was lying down with some one in the crib, got up and answered “ it’s me, Price,” and said she had gone there to get some corn. Defendant told her to come out, and asked “ who was with her?” She replied “ no one.” Defendant insisted there was some one. She said “ no,” and went out at the door. Defendant again asked who was there, and deceased got up and caught the gun. Defendant backed out of the door, the parties struggling over the gun. After getting out of the door defendant said, “ let go the gun, and let me go about my business ”— the wife begging her husband not to shoot him. Chandler then turned loose his hold of the gun, and defendant shot him. After the shooting, when a light was struck, the coat of deceased was found spread out in the crib, at the place where he and defendant’s wife had been lying down.
In his voluntary statement, which was read by the prosecution as evidence at the trial, defendant says: “I do not know what they (Chandler and my wife) were doing. I did not take time to investigate that. I knew they were there for no good. That was the only time I ever saw them lying down together anywhere. I can’t say that I thought they were having connection with each other at the time I called to them at the door of the crib; but by finding them together I supposed that their object wras to have connection with each other, and I shot him, Chandler, because I felt that that was the object of their being there together at that time.”
This concise statement of the substance of the facts will sufficiently illustrate the main question presented in the record, and so ably argued by appellant’s counsel.
The defense claimed was that, under the facts stated and our law, the homicide was justifiable. Our statute so reads: “Homicide is justifiable when committed by the husband upon the person of any one taken in the act of adultery with the wife, provided the [481]*481killing take place before the parties to the act of adultery have separated.” (Penal Code, art. 567.) We are not aware that a similar statute, making such a homicide justifiable, can be found in the Codes of any other State; though the principle and precedent from which ours is derived is of most ancient origin. But in most, if not all, the States, as at common law, a killing under such circumstances would reduce the homicide from murder to manslaughter.
Blackstone says: “So, if a man takes another in the act of adultery with his wife, and kills him directly upon the spot, though this was allowed by the laws of Solon, as likewise by the Roman civil law (if the adulterer was found in the husband’s own house), and also among the ancient Goths, yet in England it is not absolutely ranked in the class of justifiable homicide as in case of a forcible rape, but it is manslaughter. It is, however, the lowest degree of it; and therefore in such a case the court directed the burning in the hand to be gently inflicted, because there could not be a greater provocation.” (4 Black. Com. (Chitty), side p. 191.)
Mr. Bishop states the rule as it now obtains thus: “ If a husband finds his wife committing adultery, and, provoked by the wrong, instantly takes her life or the adulterer’s, .... the homicide is only manslaughter. But if on merely hearing of the outrage he pursues and kills the offender, he commits murder. The distinction rests on the greater tendency of seeing the passing fact, than of hearing of it when accomplished, to stir the passions; and if a husband is not actually witnessing the wife’s adultery, but knows it is transpiring, and in an overpowering passion, no time for cooling having elapsed, he kills the wrong-doer, the offense is reduced to manslaughter.” (2 Bish. Crim. L. (7th ed.), § 708.)
Our statute uses the expression “ taken in the act of adultery with the wife.” The question is as to the proper meaning or construction of these terms. Do the words, when properly construed, mean that the husband must discover, find, or see the wife and adulterer in the very act of illicit intercourse or copulation in order to constitute the offense denominated “taken in the act of adultery?”
Such positive proofs of the commission of the crime of adultery are not required, and are rarely attainable. (^As a crime, adultery itself may be established and proven by circumstantial testimony. (Richardson v. The State, 34 Texas, 142.) Should the law hold the "husband to a greater or higher degree of proof than itself requires to establish a given fact? It is a late hour of the night,— the parties are found in a corn crib some distance from the ■ house, lying down in the dark. They refuse, at first, to answer when called; [482]*482then, when the wife answers, she denies that any one is with her,— when deceased gets up he clutches the gun,— defendant finds that the one whose previous conduct and “ carrying on ” with his wife has excited his suspicions is the one he has thus found in company with his wife. What would any reasonable, sensible man have concluded from these circumstances? In other words, how did the matter reasonably appear to defendant? To him are not these facts “confirmations strong as proofs of holy writ?” Could it have been otherwise than that he had caught the parties in the act of adultery, either just as they were about to commit, or just after they had in fact committed it ? His voice when he called, perhaps, had arrested them in the very act of carnal coition, and if that were so, then were not the parties caught or taken by him in adultery ? Does not the law always estimate a man’s right to act upon reasonable appearances? Taking into consideration the res gestee,— taking the acts of the parties and their words coupled with their acts,— and were not the appearances of a character such as would have created the reasonable apprehension and conviction, in a person of ordinary mind, that the parties thus taken were taken in the act of adultery ?
We are of opinion that the correct doctrine is that enunciated in The State v. Pratt, 1 Houston’s Delaware Reports, 249.
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White, Presiding Judge.
Appellant was convicted of manslaughter committed upon one William Chandler; his punishment being assessed at two years’ confinement in the penitentiary. Before the homicide appellant had evidently become dissatisfied with the familiarity, which had existed for some time, as shown in the conduct of his wife towards deceased, and the deceased towards his wife. He may even have entertained suspicions that all was not as it should be between them, or, to say the least of it, he felt that their conduct was highly improper. On the night of the homicide he had evinced this state of feeling of dissatisfaction and suspicion in more than one particular, when [480]*480deceased and his wife bad been seen whispering and “ carrying on together,” before he retired to his bed, leaving his wife, the deceased and his mother still sitting by the fire. But he retired and went to sleep. Hot long after, Chandler, the deceased, left; and not long after he had, ostensibly, gone to his home, defendant’s wife, complaining of feeling sick, went out. She wTas gone so long that defendant’s mother became uneasy, woke defendant up, and told him he had better go and see what was the matter. Defendant finally got up, and, hearing persons talking in his corn-pen, went back into the house, got his gun, went to the corn-pen, found the door open, went in and asked who was there?” After this question had been repeated three times by him, his wife, who was lying down with some one in the crib, got up and answered “ it’s me, Price,” and said she had gone there to get some corn. Defendant told her to come out, and asked “ who was with her?” She replied “ no one.” Defendant insisted there was some one. She said “ no,” and went out at the door. Defendant again asked who was there, and deceased got up and caught the gun. Defendant backed out of the door, the parties struggling over the gun. After getting out of the door defendant said, “ let go the gun, and let me go about my business ”— the wife begging her husband not to shoot him. Chandler then turned loose his hold of the gun, and defendant shot him. After the shooting, when a light was struck, the coat of deceased was found spread out in the crib, at the place where he and defendant’s wife had been lying down.
In his voluntary statement, which was read by the prosecution as evidence at the trial, defendant says: “I do not know what they (Chandler and my wife) were doing. I did not take time to investigate that. I knew they were there for no good. That was the only time I ever saw them lying down together anywhere. I can’t say that I thought they were having connection with each other at the time I called to them at the door of the crib; but by finding them together I supposed that their object wras to have connection with each other, and I shot him, Chandler, because I felt that that was the object of their being there together at that time.”
This concise statement of the substance of the facts will sufficiently illustrate the main question presented in the record, and so ably argued by appellant’s counsel.
The defense claimed was that, under the facts stated and our law, the homicide was justifiable. Our statute so reads: “Homicide is justifiable when committed by the husband upon the person of any one taken in the act of adultery with the wife, provided the [481]*481killing take place before the parties to the act of adultery have separated.” (Penal Code, art. 567.) We are not aware that a similar statute, making such a homicide justifiable, can be found in the Codes of any other State; though the principle and precedent from which ours is derived is of most ancient origin. But in most, if not all, the States, as at common law, a killing under such circumstances would reduce the homicide from murder to manslaughter.
Blackstone says: “So, if a man takes another in the act of adultery with his wife, and kills him directly upon the spot, though this was allowed by the laws of Solon, as likewise by the Roman civil law (if the adulterer was found in the husband’s own house), and also among the ancient Goths, yet in England it is not absolutely ranked in the class of justifiable homicide as in case of a forcible rape, but it is manslaughter. It is, however, the lowest degree of it; and therefore in such a case the court directed the burning in the hand to be gently inflicted, because there could not be a greater provocation.” (4 Black. Com. (Chitty), side p. 191.)
Mr. Bishop states the rule as it now obtains thus: “ If a husband finds his wife committing adultery, and, provoked by the wrong, instantly takes her life or the adulterer’s, .... the homicide is only manslaughter. But if on merely hearing of the outrage he pursues and kills the offender, he commits murder. The distinction rests on the greater tendency of seeing the passing fact, than of hearing of it when accomplished, to stir the passions; and if a husband is not actually witnessing the wife’s adultery, but knows it is transpiring, and in an overpowering passion, no time for cooling having elapsed, he kills the wrong-doer, the offense is reduced to manslaughter.” (2 Bish. Crim. L. (7th ed.), § 708.)
Our statute uses the expression “ taken in the act of adultery with the wife.” The question is as to the proper meaning or construction of these terms. Do the words, when properly construed, mean that the husband must discover, find, or see the wife and adulterer in the very act of illicit intercourse or copulation in order to constitute the offense denominated “taken in the act of adultery?”
Such positive proofs of the commission of the crime of adultery are not required, and are rarely attainable. (^As a crime, adultery itself may be established and proven by circumstantial testimony. (Richardson v. The State, 34 Texas, 142.) Should the law hold the "husband to a greater or higher degree of proof than itself requires to establish a given fact? It is a late hour of the night,— the parties are found in a corn crib some distance from the ■ house, lying down in the dark. They refuse, at first, to answer when called; [482]*482then, when the wife answers, she denies that any one is with her,— when deceased gets up he clutches the gun,— defendant finds that the one whose previous conduct and “ carrying on ” with his wife has excited his suspicions is the one he has thus found in company with his wife. What would any reasonable, sensible man have concluded from these circumstances? In other words, how did the matter reasonably appear to defendant? To him are not these facts “confirmations strong as proofs of holy writ?” Could it have been otherwise than that he had caught the parties in the act of adultery, either just as they were about to commit, or just after they had in fact committed it ? His voice when he called, perhaps, had arrested them in the very act of carnal coition, and if that were so, then were not the parties caught or taken by him in adultery ? Does not the law always estimate a man’s right to act upon reasonable appearances? Taking into consideration the res gestee,— taking the acts of the parties and their words coupled with their acts,— and were not the appearances of a character such as would have created the reasonable apprehension and conviction, in a person of ordinary mind, that the parties thus taken were taken in the act of adultery ?
We are of opinion that the correct doctrine is that enunciated in The State v. Pratt, 1 Houston’s Delaware Reports, 249. In passing upon the construction and application of a statute substantially similar to ©urs, except that in Delaware the homicide under such circumstances would only have been reduced from murder to manslaughter instead of being justifiable, as with us, it was held: “ If a husband find another in the act of adultery with his wife, and in the first transport of passion excited by it then and there kills him, it will not be murder, but manslaughter only. It is not necessary, however, that he should witness an act of adultery committed by them. If he saw the deceased in bed with his wife, or leaving it, or found them together in such a position as to indicate with reasonable certainty to a rational mind that they had just then committed the adulterous act, or were then about to commit it, the effect will be the same; and if, under such circumstances, the mortal blow was then and there given, the killing will be manslaughter merely. But no other knowledge on the part of the husband, however positive, otherwise acquired of their adulterous intercourse can suffice to mitigate and reduce the crime from murder to manslaughter.” (See same case in 1 Crim. Law Mag., pp. 809, 810.)
As to a proper construction of the expression “ taken in the act,” we cannot believe that the law requires or restricts the right of the husband to the fact that he must be an eye-witness to physical [483]*483coition of his wife with the other party. As we have seen, adultery can be proven by circumstances, and the circumstances in this case were not hearsay so far as this defendant was concerned; they transpired in his own presence, sight and hearing. A mistake may possibly exist as to the fact; “ but if a person laboring under a mistake as to a particular fact shall do an act which would otherwise be criminal, he is guilty of no offense ” (Penal Code, art. 45), provided it be such mistake as does not arise from want of proper care on his part. (Penal Code, art. 46.) A party may always act upon reasonable appearances, and his guilt depends upon the reasonableness of the appearances, judged of from his own standpoint.
Mr. Bishop’s rule, as above quoted, also commends itself to us as both just and proper; “If a husband is not actually witnessing his wife’s adultery, but knows it is transpiring, and in an overpowering passion, no time for cooling having elapsed, he kills the wrong-doer, the offense is reduced to manslaughter.” (Citing The State. v. Holmes, 54 Miss., 153; Biggs v. The State, 29 Ga., 723; Cheek v. The State, 35 Ind., 492.) And to the same effect is Maher v. The State, 10 Mich., 212. If the offense would be manslaughter at common law, and in most of the other States, it would in like circumstances be justifiable homicide under the special provisions of our statute. (Penal Code, art. 576.)
In his charge to the jury the learned trial judge instructed them fully and ably upon the law of murder of the second degree (murder in the first degree being abandoned) and manslaughter. TTis charge upon justifiable homicide, predicated upon the statute, was in these words, viz.: “If the jury find that the defendant shot and killed the said Chandler ht the time and place as alleged, and it also appears from the testimony that defendant shot and killed said Chandler when taken in the act of adultery or carnal intercourse with the wife of the defendant, and before they (Chandler and the wife) had separated, then they will find him not guilty.”
The very gist of the issue made by the facts in the case was as to whether the facts tended to show that the parties were “ taken in the act of adultery,” and in all such cases, we imagine, the prineipal contest will be as to that fact. Such being true, it is a part of the law of such cases that the jury should be properly instructed as to what is meant by the expression “ taken in the act.” Without some explanation of the phrase, a jury would scarcely be able to comprehend and understand its import, so as correctly to apply it to the facts. They would, perhaps, be most likely to interpret it as [484]*484meaning that the parties must be taken in the very act and process of carnal intercourse and copulation.
Again: it was important that the jury should have been instructed as to the meaning of the other expression used in the statute,—“ before the parties to the act of adultery have separated.” Giving the language a too literal construction, they might infer that it meant that the parties must be physically united with the rem in rev in the act of copulation, and that it would be a separation though they might still be in the same bed or same room. Evidently the statute means no such thing, and contemplates only that the parties are still together in company with each other, after the act, when the homicide is committed.
Again, it is most clear that the word “adultery,” as used in the statute, cannot be, or mean, the adultery which is defined as a specific offense by the Code, and which is “ the living together and carnal intercourse with each other, or habitual carnal intercourse with each other,” etc., of a man and woman, etc. (Penal Code, art 333.)
It cannot be that statutory adultery must be shown by a husband justifying under the law we are discussing. Evidently ecclesiastical adultery is meant,— adultery as it is known in common parlance,— “ violation of the marriage bed,” whether the adultery consisted of but one or more acts, or whether the parties lived in habitual carnal intercourse or not. It was part of the law of the case that “adultery,” as used in this statute, should have been explained to the juvy-
There were no special exceptions to the charge of the court, but the defects of omission pointed out are in our opinion fatal to the sufficiency of the charge, which under the statute must set forth distinctly the law applicable to the facts. Defendant’s counsel submitted several requested instructions which should have called the attention of the court to the omissions in its own charge, though it might not feel inclined to give said instructions as presented and requested.
For the errors in the charge of the court, as above pointed, out, the judgment is reversed and the cause remanded.
Reversed and remanded.
[Opinion delivered June 13, 1885.]