
    Rigell v. The State.
    
      Manslaughter.
    
    (Decided June 19, 1913.
    62 South. 977.)
    1. Homicide; Provocation to Reduce. — The killing of a paramour of one’s wife is reduced to manslaughter, whether it be immediately after detecting him in the act, or after detecting him in a compromising position; the difference being that when caught in the act the provocation is sufficient as a matter of law, while in the other instance its sufficiency is for the jury.
    2. Same; Degree. — Where the verdict was for manslaughter, any error in instructions as to passion that will reduce a killing to manslaughter is harmless.
    3. Same; Self-Defense. — Where the deceased became the assailant by drawing his pistol, defendant was not required to wait, but could act on appearances, and do so promptly.
    4. Same; Duty to Retreat. — A person in his home is under no duty to retreat before an assailant, who is a trespasser.
    5. Same; Evidence. — It was permissible to show that when deceased was advised by one, whom deceased told that he had an engagement with defendant’s wife for that night, to be careful, he exhibited a pistol and said, “this is my protector,” defendant having testified that he had warned deceased to remain away from his home, and that on returning home that night saw some one in a compromising position with his wife, and on following him into the hack yard, and inquiring who it was, deceased drew his pistol.
    6. Same; Conviction of Lower Acquittal of Higher. — A conviction of manslaughter is available as an acquittal of murder, on a new trial, after reversal, or other action setting aside former verdict.
    7. Evidence; Expert and Opinion. — The opinion of medical experts, who have examined the wounds, is not admissible to show the relative position of the parties to the difficulty, one to the other.
    8. Trial; Remarles of Court. — The remarks of the court stated and examined and held to have been prejudicial to the defendant, and error.
    Appeal from Geneva Circuit Court.
    Heard before Hon. II. A. Pearce.
    Isliam Rigell, alias, was convicted of manslaughter in the first degree, and appeals.
    Reversed and remanded.
    The defendant was convicted of killing Tallie Purvis, under the circumstances as stated in the opinion. J)ur-in g..the examination of a witness concerning a pistol found in the yard the next morning, the solicitor said: “Suppose they found one there? It does not necessarily follow from the fact that it was a pistol. that was dropped there by deceased, as there was plenty of time and opportunity for a pistol to have been dropped there by another party,”, whereupon, defendant objected, and the court said: “That may all be very true,” which was never finished, as the attorney for defendant interposed with: “I except to your honor’s statement.” The court then inquired as to Avhat statement. The attorney replied: “That is true,” and the court replied: “I said that may all be very true.”
    Espy & Farmer, .and W. O. Mulkey, for appellant.
    Under the facts in this case, the offense cannot be anything more than manslaughter. — State v. MoNeal, 102 Ala. 121; Hook v. State, 99 Ala. 168. The court erred in permitting the physician who examined the wound to give his opinion from the character of the wounds as to the relative positions of defendant and deceased- to one another at the time of the shooting. — Page v. State, 61 Ala. 16; Wilkerson v. Mosely, 30 Ala. 562; Bennett v. State, 4-6 Am. Rep. 26; Foster v. State, 12 South. 822; McKee v. State, 82 Ala. -32; Walker v. State, 58 Ala. 393; Dumas v. State, 159 Ala. 44; 5 Enc. of Evid. 588.- It is always permissible to show the whereabouts of defendant shortly before, at and just after the difficulty. — Raines v. State, 88 Ala. 91. The remarks of the court were error prejudicial to defendant. — Clinton v. State, 47 South. 389. It is competent to show that deceased said when warned to be careful: “This is my protector,” at the same time drawing his pistol. — Gilmore v. State, 141 Ala. 53; Turner v. State, 1.60 Ala. 44; Gunter v. State, 111-Ala. 29.
    
      R. C. Bkicicell,, Attorney General, and W. L. Martin, Assistant Attorney General, for tbe State.
   THOMAS, J.

— The principles . of law applicable to one theory of the defense here are so clearly stated by Judge Coleman, in Hooks v. State, 99 Ala. 168, 13 South. 768, that we quote as folkrws: “Where one person' detects' another ip the act of adultery with his wife, and immediately slays the adulterer or his Avife, as a matter of law the provocation is sufficient to reduce the killing to manslaughter. The law does not declare that anything less than actual sexual intercourse is a sufficient provocation, * * * to reduce the offense from murder to manslaughter. It may be that the detection of . another, under circumstances such as testified to by the defendant, may provoke and engender passion to such a degree as to overthrow reason, and if, under the influence of passion thus aroused, he immediately attack the offending party and' slay him, before cooling time has intervened, not from malice or unlawful formed design, but from such passion thus provoked, the offense may be manslaughter. Whether the party acted under the influence of such a passion, and Avhether the provocation was sufficient, and whether there had been ‘cooling time,’ are questions of fact to be determined by the jury. The principle we announce is that the laAV does not declare the provocation sufficient, unless the parties are detected in the act; but a jury may say Avhether the compromising position of the parties Avas sufficient to arouse passion in the husband to such a degree as to overthrow reason, just as the jury may say in some other cases Avhether the offense Avas the result of sudden and sufficient provocation as to reduce: the offense from murder to manslaughter.” The law, however, never wholly excuses the husband from responsibility for taking the life of his wife’s paramour, even though he comes upon the two in the very act of sexual intercourse, and slays under the sudden heat of the very pasison thereby engendered. The sole extent of the law’s charity, in such a case, is to reduce the homicide, which Avould otherwise be murder, to manslaughter in the first degree. — Hooks v. State, supra; McNeill v. State, 102 Ala. 121, 15 South. 352; 48 Am. St. Rep. 17.

Here the defendant was convicted of only manslaughter in the first degree; and hence that portion of the alleged errors of the trial court which relates exclusively to or affects solely that ground of the defense that was based on the theory that the killing Avas done under a sudden heat of passion Avas, if error, error without injury — whether that heat of passion Avas aroused in the breast of defendant by the fact of his apprehending his Avife and deceased in the act of adultery, or in such compromising position as to indicate it, or Avas engendered by the assault alleged to have been committed on him by the deceased a few moments after such apprehension or discovery. By the verdict the defendant got the full benefit of either of these theories. This being true, and it being further true that on a subsequent trial neither of these issues can arise again (if the defendant, as no doubt he Avill, pleads this verdict, finding him guilty of manslaughter in the first degree, as an acquittal of the charge of murder), we deem it entirely unnecessary to discuss those alleged errors of the trial court Avhich, if errors, are of such character as may be said to be clearly confined in their deleterious or injurious effects solely to the issue as to Avhether defendant was guilty of murder or voluntary manslaughter.

On the next trial (Avhich Ave are of opinion the defendant- is entitled to for reasons hereinafter considered), the single issue will be whether defendant is guilty of voluntary manslaughter or guilty of nothing, on account of self-defense — as, under the evidence, the verdict must be one or the other. We will limit our discussion, therefore, to those alleged errors of the trial court which, in our opinion affected, and are calculated on another trial to affect, this single defense; all the other defenses having, as shown, been merged into the verdict of guilty of voluntary manslaughter.

The evidence for the defendant, as to this defense, tended to show that on the night of the killing, he, a young married man, went home about 10 o’clock from the drug store, where he clerked, in the town of Slo-comb; that as he approached his home he discovered that the light in his room was dimly burning; that, before entering the house, he stopped in the yard a few moments, and while standing there he heard somebody on the inside of the house talking in a low tone, whereupon he walked nearer to the house and looked into the room through the window (the inside shade, Avhich covered it, lacking a few inches of being pulled entirely down), when he discovered his wife and a man, whom he did not then recognize, on the bed together; that defendant then ran up the steps to the front door, and through it saw a man going out of the back hall door, whereupon defendant came back down the front steps and ran around the house to the back porch, and found the man standing there on the back porch; that defendant halloed twice, demanding to know who it was, to neither of Avhich demands the man made any reply, but immediately, on the second demand, defendant saw him pull his pistol out of his pocket; and that then the defendant quickly pulled his own, and commenced' to shoot at the man, Avhile he was still standing on the back porch, firing then four shots at him (the only shots fired), after which deceased ran. Several witnesses, including the town marshal, testified to finding early the next morning a pistol, covered with dew, on the ground right near the back porch where deceased was standing during the shooting. This pistol was introduced in evidence, and identified by witnesses as being the property of deceased, and as having been seen in his possession on the afternoon of the night of the killing. One Sellers, a neighbor of defendant, heard the shooting that night, and in a few moments afterward saw deceased at his (witness’) yard gate, he having run there from defendant’s house immediately after the shooting. His trousers were unbuttoned, and otherwise bore unmistakable signs of immediate prior sexual intercourse, and he admitted to Sellers that he had been in the wrong place, explaining that he had been in defendant’s house that night while the latter was not at home, and that when defendant came home he (deceased) went out the back door, and defendant went around in the back yard and shot him. Deceased was carried into the home' of the said witness, Sellers, where he died the next morning from the effect of the pistol shot wounds.

In addition to all the foregoing testimony, which we think was material on the issue of self-defense, and which was let in by the court, the defendant also offered to prove that a short time before the killing he, having heard as a rumor that deceased was intimate with his (defendant’s) wife went to deceased, who was a cousin of defendant, and told him about these reports, and requested him not to again visit his home. The court declined to permit this proof. The defendant also offered to prove that in the afternoon before the killing that night deceased told defendant’s witness McLain that he had an engagement with defendant’s wife that night, and that when witness advised him that he had best be careful arid cautious, be (deceased) pulled a pistol out of bis pocket, like tbe oue found in defendant’s back yard on tbe next morning after tbe killing, and, upon exhibiting it to tbe witness, remarked, “This is my protection.” Tbe court declined to permit this proof, except as to tbe bare fact tliat deceased then bad and exhibited to tbe witness a pistol.

While this evidence offered by defendant, which tbe court declined to let in, ivas, of course, clearly not admissible in support of any theory that tbe killing was done by defendant under a sudden beat of passion provoked by tbe discovery of bis wife and deceased in tbe act of sexual intercourse, and hence could have been of no benefit to him on such a theory, yet Ave are of opinion that it was admissible, and Avould have been beneficial to defendant in support of bis contention that tbe killing was done in self-defense, in that it tended to illustrate tbe conduct of deceased at the time of the tragedy, to show a motive on bis part, and to show that be was tbe assailant. Who was tbe aggressor at that time was a material inquiry for tbe jury, and whatever evidence tended to shed light on tbe question Avithout obtruding upon tbe minds of tbe jury matters which were foreign or of doubtful pertinency to that inquiry, should not have been excluded from their consideration. Tbe excluded eAudence gives character to tbe motive and conduct of deceased, and aids in the interpretation of bis acts at tbe time of tbe shooting. It tended to establish facts from which, coupled Avith other facts in tbe case, if believed by tbe jury, they could reasonably infer, among other things, a reckless, dare-devil state of mind on tbe part of deceased at tbe time of tbe fatal difficulty, and one, like that of a midnight burglar, that Avas bent on the accomplishment of bis purpose at any risk-prepared, ready, and entirely Avilling to kill, if thought necessary to prevent interference, or enable him to get away after the accomplishment of such purpose, or to avoid detection and arrest, or to save himself from the wrath of him whose home had been invaded. The defendant had a right to ascertain who this midnight invader of his home was, and had a further right, if he so desired, to apprehend him — a criminal caught in the very act — and surrender him into the clutches of the laAv, and this without informing such criminal of his purpose to arrest him. — Code, §§ 6273, 6274; Storey v. State, 71 Ala. 329. He, the defendant, was therefore engaged in no unlawful enterprise in going into his own back yard, though armed with a pistol, and hailing deceased and demanding to know who he was. If, then, the deceased, in anticipation of and to prevent detection and arrest, or through other motives, became the assailant by drawing his pistol, or making other hostile demonstrations of a character evincing an intent to commit a present deadly assault on defendant, or one calculated to do him great bodily harm, the latter had the right to act on the reasonable appearance of things, and to do so promptly. The law does not require a man, confronted then as defendant’s evidence tends to show he was, to wait and see if his assailant, if such he was, is going to shoot, or to Avait and see if he may not, in the excitement of the moment, accidentally, or otherwise drop his pistol. Nor did the laAv require the defendant to retreat. He Avas at his home — Avithin the precincts of his own castle — and Avas in no sense under a duty to retreat from an assailant (if such he was) who was a trespasser there, and Avho, under the veil of night, when its lord and master was away, had, by a previous abuse of the privilege of the entree which kinship gave, been able, on this occasion, to foully invade that sacred domain and seduce, or strip of her’ virtue, its erstwhile queen. Tlxe deceased at the time, of the tragedy,.had not only no right to resist arrest, but no right to defend himself, by inflicting injury on defendant, even though he had been assailed by defendant with a deadly intent while acting under the sudden heat of passion engendered from discovering deceased in the act of sexual intercourse with his (defendant’s) wife. In such case, though defendant were the aggressor, and there was no way to escape death at his hands except by taking his life, still, if deceased had done so, he would have been guilty.of murder, for he was the wrongdoer in the first instance, was .not therefore free from fault in bringing on the difficulty, but, on the contrary, had furnished the very provocation which brought it on. — Dabney v. State, 113 Ala. 38, 21 South. 211, 59 Am. St. Rep. 92.

.Under the authority of Gafford v. State, 122 Ala. 62, 25 South. 10, and on principles there declared and fully amplified, we are of opinion that, the evidence which. the . court declined, to allow defendant to introduce was clearly admissible under.the circumstances of this case,, and that defendant should have had the benefit of it.

. The physician who attended deceased, as a witness for the state, testified that he examined the wounds of' deceased, and that the shot, which entered the stomach, ranging upwards to the lungs, produced his death, and-that after making the examination he went that, same night down to see defendant and asked him to show witness the position in which he and deceased were standing when the latter was shot, "which defendant then described, and which witness detailed on .the stand. The. solicitor then asked the witness, “From the position in which the defendant stated that he was standing at the time he fired the shots, what would have been the relative position of deceased with defendant, at the time of the firing of the shots?” Over the defendant’s objection the court permitted the witness to answer the question. In this we think the court was in error.

In the Encyclopedia of Evidence, vol. 5, p. 588, we find the folloAving text: “According to the overwhelming weight of authority, the opinions of medical experts are not admissible to show the position of an injured person at the time the wound was received, or the position of the person who inflicted it, because, as has been said, surgeons are not presumed to be experts in the matter of giving or receiving wounds, and the jury are equally capable of drawing, proper inferences from , the facts proved.” The long list of cases cited in the note fully sustain the text. See in connection, as of similar purport, the following cases: Foster v. State, 70 Miss. 755, 12 South. 822; McKee v. State, 82 Ala. 32, 2 South. 451; Dumas v. State, 159 Ala. 44, 49 South. 224, 133 Am. St. Rep. 17.

The remarks of the court in the presence of the jury, which were excepted to,, were, we think, clearly improper and prejudicial to the interest of defendant.

■ We need not discuss other alleged errors, as they are not likely to arisé on another trial, for reasons herein-before mentioned.

For the errors pointed out, the judgment of conviction is reversed, and the cause remanded.

Reversed and remanded.  