Johnston, J.
[709]*7091. State of mind shortly before and after homicide may be shown. [708]*708The most important exception urged by the appellant for reversal was taken upon the refusal of the Court to charge the jury upon the defense of insanity. Testimony tending to show mental derangement and incapacity was offered and received, but the Court, though requested to do so, declined to submit the question or take the opinion of the jury thereon. It appears that soon after the tragedy Newman was found lying on his back, moaning, and apparently in great agony ; and there was also testimony that he was in a dazed condition, as if he did not know what he was doing. The shocking discovery of an adulterer in the house with his wife, the mother of his three children, would naturally cause tremendous excitement and mental disturbance. Hoover had gone into the home of Newman for the purpose of having sexual intercourse with his wife, but what their situation was when found, or whether taken in the act of adultery, does not appear. Knowledge of his wife’s shame, or even the discovery of his wife in the lustful embrace of Hoover, afforded Newman no excuse or justification for killing Hoover. Such a discovery, as the Court properly advised the jury, might be considered by them in determining the degree of the offense of which the defendant was guilty, if guilty of any, but could not of itself justify or excuse the killing of the deceased. However, the shock and mental disturbance, necessarily caused by such discovery, might be considered in connection with the testimony that Newman was dazed and appeared not to know what he was doing. It is argued that preparation for the difficulty, and the recollection of the occurrences by Newman, are inconsistent with the idea of actual insanity. It is true that the testimony of men[709]*709tal incapacity is not strong, and possibly the jury might have readily concluded that it was insufficient to relieve Newman of responsibility for the homicide. The testimony upon this question related to his con-, duct after the homicide ; and, of course, it is without effect unless it appears that insanity existed at the time the alleged offense was . _ committed. In such case, however, the acts and conduct of the defendant shortly before or after the homicide may be shown in order to determine his mental condition at the time. The testimony was received by the Court; and whether it was strong or weak, whether it was sufficient or insufficient to show insanity, were questions for the determination of the jury. In such cases, testimony of claimed mental disorder should be carefully scrutinized and weighed; but the province of estimating the weight of the testimony belongs to the jury rather than to the Court.
2, 3. Court’s duty to instruct as to defense insanity, when. In denying the defendant’s request for an instruction, which appears to have been drawn in proper form, the Court undertook to estimate the weight of the testimony, and clearly trenched upon The testimony does not reveal the details of the the functions of the jury. homicide, but there is abundant evidence of a terrible struggle in and about the house. The door had been broken open, the ceiling of the kitchen had been scraped by a gun or pistol barrel, two shots had been fired into the walls, blood was found in several places as well as upon the door-casing, and the hinge of the door was bloody and bent. Who began the struggle, who was the aggressor in the fight, or what occurred immediately prior to the killing of Hoover, can only [710]*710be surmised. The testimony is very meager, and unsatisfactory in some respects, but, in view of the statements alleged to have been made by the defendant, we regard it to have been sufficient to take the case to the jury. The claim that the verdict is without support cannot be sustained. The testimony was largely circumstantial, however, and it was therefore vitally important to the defendant that the jury should be fully and fairly charged upon all the issues in the case.
A number of other exceptions were taken to the rulings upon the instructions, but, except the omission of an instruction upon the subject of insanity, we discover no cause for complaint. In every other'respect the charge appears to cover the testimony in the case and to fairly present the law applicable to the facts upon which proof was offered.
For the error mentioned, the judgment will be reversed, and the cause remanded for a new trial.
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