
    ELIZABETH GOETZMAN, Administratrix, etc., of JACOB GOETZMAN, Deceased, Plaintiff, v. THE CONNECTICUT MUTUAL LIFE INSURANCE COMPANY, Defendant.
    
      Policy of inmrance — defense that assured was hilled in act of adultery — when such hiding murder—jury to determine between intentional hilling and hiding in heat of passion.
    
    In an action on an insurance policy which provided that “ if the assured shall die by suicide or in consequence of his violation of any law,” it appeared that the assured was shot by one Hesler, immediately after he had had criminal intercourse with his (Hesler’s) wife; held, that as the killing was done not while the assured was in the act of adultery, nor in the defense of person or property, that it was a crime, and could not be treated as the natural and legitimate effect of the act of adultery.
    A charge to the jury, that if Hesler killed the assured because he had committed the act of adultery, it was not murder, was error. The judge should at least have submitted to the jury the question whether Hesler fired the pistol with intent to kill, or whether the killing was in the heat of passion caused by the act of adultery, and to instruct them that in the former case the defense failed.
    Exceptions ordered to be heard in first instance at General Term. The action was brought to recover $14.-2 upon a policy of insurance on the life of Jacob Goetzman. The policy contains a provision that “ if the assured shall die by suicide or in consequence of his violation of any law, ” the policy shall be null and void. The answer alleged that said Jacob came to his death while engaged in acts of adultery with one Catharina Hesler, wife of one John Hesler, the said Jacob having been discovered and caught by said John Hesler in the acts of illicit and unlawful intercourse with his wife, and that while so engaged in such unlawful intercourse, the said John shot the-said Jacob to death; and defendant alleged that the death of said Jacob was the natural and reasonable result and consequence of his unlawful acts with the wife of said John Hesler. The proof in the case tended to show that just after having committed adultery with Mrs. Hesler, the assured was shot and killed by her husband.
    The judge charged: “It is a violation of law for a man to interfere with the most sacred relations we have in social life. When he undertakes to commit adultery with the wife of his neighbor, he has violated the law, and if the death he suffers grows out of that fact, then the policy is forfeited, and he has no right to recover, or his representatives have not, the amount of the policy if the death be caused in that way. * * * He was shot by the person whose rights he had thus invaded. Whether Hesler saw him or not is not absolutely material in this case. If he saw him in the act of adultery, or under such circumstances as was satisfactory evidence to him that he had committed adultery, then he had a right tó shoot him, if he did it directly after the offense. Not exactly the right; but the law is careful of the feelings of individuals in that regard, and has so much respect for the natural impulses of a man who is placed under circumstances of that kind, that it says he does not commit murder, so that while the commission of that act is fresh, and he shoots a person under circumstances that satisfy him that the act has been committed; and it is entirely immaterial for this purpose, whether the husband saw the act or not. If he was actually doing the illegal act, and the death resulted as a consequence of that act, then the plaintiff is not entitled to recover in this case, and the whole question for you is, whether this death resulted from the fact—was the consequence — of the act and his being there and committing adultery with some person else’s wife. If it was, he is not entitled to recover. The condition referred to in the policy was not violated, if it was not the consequence of that act; and if that be so, plaintiff is entitled to recover; and if you can find from the' evidence in this case any other reason for the husband shooting, except from the fact that he was there having improper relations, or in an improper manner with his wife, then you may give a verdict for the plaintiff; if you can find no other fact, nothing to warrant you, no other reason for the husband shooting him under the circumstances, except from the understanding that he had been and committed this violation of his rights, then the defendant is entitled to your verdict.”
    The plaintiff excepted to that part of the charge, “ where it was stated that it was not necessary for him to see him in the act of adultery.
    “ Also, where it was stated that it was right for a husband to shoot a man if he was there in a position that inferred that he was committing adultery.
    “ Also, that the commission of adultery was a violation of the law.”
    The jury found for the defendant, and the court ordered a stay of proceedings for thirty days, in which to make a case and exceptions, and ordered the same to be heard in the first instance at the General Term.
    
      J. C. Cochrane and Wm. M. Bates, for the plaintiff.
    
      X). Pratt, for the defendant.
    The commission of adultery is not only a violation of the most sacred rights of a man, but justifies him, or at least excuses him, for taking the life of the adulterer, if caught, flagrante delicto. (2 Bish. Cr. L., § 708; State v. John, 8 Ire., 380; Same v. Samuel, 3 Jones [N. C.], 74; 2 Wharton, § 389.) Adultery, of all provocations, is recognized by the law as the highest and strongest. (State v. Will, 1 Dev. & Bat., 121, 169.)
   Gilbert, J.:

The learned justice at the circuit certainly gave to the jury an erroneous exposition of the law of homicide, as the same is administered in this State. But we need not stop to discuss that subject. The case comes before us upon exceptions taken by the plaintiff at the trial.

At the close of the testimony, the plaintiff moved, in effect, that the court direct a verdict in her favor. We think that motion should have been granted. The condition of the policy is, that “ if the assured shall die by suicide, or in consequence of his violation of any law,” the policy shall be void. Assuming that the act of adultery was a violation of law, within the meaning of the parties to the contract of insurance, we are of opinion that the assured did not die in consequence of it. The undisputed facts show that he was killed, not in the act of adultery, nor in defense of person or property. The offense had been completed, and the assured was about to go away. He was not, therefore, at the time he was killed, violating any law, or even committing a trespass, for he was in the house by the license of the wife, from whom the husband had separated.

Our law plainly denounces an act like that perpetrated by Hesler, as a crime, and we can conceive of no principle upon which it could properly be treated in a court of justice as a natural or legitimate effect of the cause stated. It wonld be more reasonable to conclude from the evidence, that Hesler assassinated the assured in cold blood, lying in wait for that purpose, and that he was actuated by jealousy or a wish for revenge. The fact that the interval between the injury and the killing was short, is not, in this instance, material. If the assured had been killed a week or a year after the injury, for the same cause, it would have been quite as direct a result thereof as when it was done. In short, the proposition' that a man, who has been thus wantonly killed by another, without necessity or lawful excuse, died in consequence of his own act, is logically contradictory, unless it be admitted that the killing of an adulterer follows his offense in the ordinary sequence of events. That admission, we are not prepared to make.

If, however, it was proper to submit the case to the jury, we are of opinion that the charge of the learned judge was erroneous, and that the exceptions, although not as precise or specific as they should have been, are sufficient to bring the subject before us.

The jury were told that, if Hesler killed the assured because he had committed the act of adultery, it was not murder ; and they might properly have inferred, and probably did infer, from the language of the judge, that such killing was excusable, if not justifiable. They were also instructed that if they could find no other reason for Hester’s shooting the assured, except his understanding that the assured had committed adultery with his wife, then the defendant was entitled to a verdict. This was equivalent to a positive direction to find a verdict for the defendant; .for there was not even a pretext, much less any evidence, of any other excuse for the killing. The motive and intent of Hesler in doing the act, were practically withdrawn from the consideration of the jury by the statement that the killing was not criminal, and they were permitted to find a verdict for the defendant, notwithstanding the killing was on account of a past injury. We must dissent from all this. The inference that Hesler killed the assured, not under an impulse produced by an adequate provocation, but merely to revenge himself for what the latter had done, is a reasonable, if not a necessary one, from the evidence; and unless the circumstances attending the transaction were such as to justify a reduction of the crime below the grade of murder, the case was not within the condition of the policy. It was, therefore, to say the least, the duty of the judge to submit to the jury the question, whether Hosier fired the pistol with intent to kill, or whether the killing was in the heat of passion, caused by the act of adultery committed by the assured, and to instruct them that if they should find the former to have been the case, the defense failed.

For the reasons stated, the exception must be allowed, and a new trial must be granted, with costs to abide the event.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Ordered accordingly. 
      
       Bradley v. Mut. Ben. Life Ins Co., 45 N. Y., 422, 429, et seq., and cases cited.
     