
    State of Iowa v. James Watkins, Appellant.
    I Criminal law: evidence : instruction. A defendant in a prosecution for murder can not complain of an instruction given at his request, to the eifect that if the jury find a certain witness to be the wife of the defendant no consideration is to be given her testimony, but if she was not his wife it should be given such weight as it was entitled to.
    
      2 Murder: self-defense: evidence. In this prosecuti the evidence is reviewed and held to raise an issue 01 for submission to the jury.
    3 Same: provocation: instruction. To render the taking manslaughter instead of murder, the provocation must be su as has a natural tendency to produce such a degree of ment or disturbance of mind of an ordinary person as to dethrone reason and cause him to act from passion rather than deliberation and judgment. In this action there was evidence that defendant had previously armed himself with a deadly weapon for the encounter, and it is held that the court’s instruction that to constitute great and present provocation which would render the killing manslaughter instead of murder there must ,be something extraordinary, was not erroneous, especially as the court also instructed that the provocation must be sufficient to excite passion in a reasonable person.
    
      Appeal from Polk District Court. — Hon. Jesse A. Miller, Judge.
    Thursday, June 9, 1910.
    The defendant was convicted of murder in the first degree, and appeals.
    
      Affirmed.
    
    
      J. B. Bush and S. Joe Brown, for appellant.
    
      H. W. Byers, Attorney-General, and Charles W. Lyon, Assistant Attorney-General, for the State.
   Ladd, J.

I. The accused killed John Weaver, who had been a boarder at his house, August 10, 1909. The deceased had been married to Mary Sanders in the forenoon of that day. She had lived with defendant eight years, but had left him two . _ . ____ days prior to her marriage to Weaver. She denied ever having been married to defendant, but the latter testified that she had been his wife during the time they had lived together. Objection to the woman’s compethe wife of defendant, no consideration should be given her testimony, but if she was not his wife, then it should be given such weight as it was entitled to receive. Tho defendant requested that the jury be so instructed and therefore he cannot be heard to complain. See State v. Rocker, 130 Iowa, 239; Com. v. Mudgett, 174 Pa. 211 (34 Atl. 588).

II. The woman testified that deceased was unarmed and had made no attack on defendant, as did Mrs. Stark, at whose house the shooting occurred. Their testimony was corroborated, by that of McCray. According to defendant’s story, after an interchange of words concerning their respective rights to the woman, deceased pulled a revolver, a scuffle ensued when defendant got hold of it, pulled the trigger, and all was over. Plainly enough, the issue of self-defense was for the jury. Moreover, the evidence was such that the jury might have found that Mary Sanders was not defendant’s wife, that he had been aware for some time previous of her intimacy with Weaver, and that he had armed himself with a loaded revolver for the purpose of killing his rival, and, therefore, that the provocation was not such as to reduce the offense to that of manslaughter.

III. In defining the provocation which would render homicide manslaughter instead of murder; the court said in the course of an instruction that, “to constitute the great and present provocation, it must be something extraordinary in its nature.” Appelant criticizes the use of the word “extraordinary,” but in the connection found and followed by the sentence indicating precisely what was intended, it could not have been prejudicial, especially in view of the next instruction directing that the provocation must be sufficient to excite passion in a reasonable person. If the facts were as related by defendant, the killing was in self-defense and not owing to other provocation than the assault on him. If, as related by other witnesses, he had previously armed himself with a deadly Aveapon for the encounter, then the provocation must have been great to render the killing manslaughter instead of murder. State v. Vance, 17 Iowa, 138; State v. Hockett, 70 Iowa, 442. It must have been reasonable, as contended by appellant; that is, such provocation as had a natural tendency to produce a state of mind in an ordinary man of average disposition, in which reason is so disturbed or obscured by passion that the person is likely to act rashly, without due deliberation, and from passion rather than judgment. In other words, in determining whether provocation is reasonable or sufficient, ordinary human nature, the average of men of fair, average mind and disposition is the standard, and the proArocation must be such as is likely, or has a natural tendency, to produce such a degree of excitement or disturbance in the mind of such men as that reason is dethroned by passion, and the act is the product of the latter rather than judgment. Maher v. People, 10 Mich. 212 (81 Am. Dec. 781); State v. Ferguson, 2 Hill (S. C.) 619 (27 Am. Dec. 412).

Manifestly, no precise line can be draAvn by which to distinguish between provocations which will and will not mitigate the offense from murder to manslaughter. But, as said in Clark & Marshall on the Law of Crimes, 355: “Beasonableness is the test. The law contemplates the case of a reasonable man — an ordinary, reasonable man —and requires that the provocation shall be such as might naturally induce such a man, in the anger of the moment, to commit the deed. The rule is that reason should at the time of the act be disturbed by passion to .an extent which might render ordinary men, of fair, average disposition, liable to act rashly and without reflection, and from passion rather than judgment.” Manifestly the provocation calculated to lead to this result must be something more than ordinary. It must be great or extraordinary, as the jury was told, though it is preferable to specifically state rather than characterize what is essential.

We have discovered no error in the rulings complained of, and the judgment is affirmed.  