
    ROBBINS vs. THE STATE.
    1. When a husband is indicted for an assault and battery on his wife, he may show, in mitigation of the fine, that at the time of the assault he was immediately provoked to its commission by her bad behaviour and misconduct.
    Error to tbe Circuit Court of Marshall.
    Tried before tbe Hon. L. P. Walker.
    
      Tbe plaintiff in error was indicted for an assault and battery committed on bis wife. On tbe trial, be offered to give in evidence “ ber misconduct and bad behaviour at tbe time tbe alleged assault and battery was made, in mitigation of tbe offence charged, and for tbe consideration of tbe jury in their assessment of tbe fine.” Tbe court excluded tbe evidence, to which tbe defendant excepted, and which be now assigns as error.
    0. 0. Olay, Jr., and L. "Wyeth, for plaintiff in error.
    In most of tbe States of tbe Union, as well as in England, tbe judge, and not the jury, assesses tbe amount of tbe fine, as well as fixes tbe term of imprisonment, in cases of this sort; and hence, in part, tbe paucity of decisions in criminal prosecutions., bearing on this particular point. But in those States where tbe rule, as stated, prevails, tbe judge is informed before sentence, of those extenuating circumstances, which enable him to proportion tbe penalty to tbe actual criminality.
    
    It is not proper, on tbe plea of not guilty, to allow extenuating circumstances to be given in evidence to tbe jury. They should be submitted to tbe court on sentence day.'— Bay’s R. 62.
    In civil cases, frequent adjudications are found sustaining tbe principle that tbe attending circumstances should be made known to jury, in order that they might intelligently mete tbe punishment and compensate tbe wrong.
    In civil actions for assault and battery, defendant may give in evidence mitigating circumstances, immediate provocations, &c. — 1 Mass. R. 12.
    Matter of provocation cannot be shown in justification, unless immediately preceding an assault and battery. — 9 Miss. 531.
    There is no difference, and there should be none, between tbe principles of evidence in civil and criminal cases.— Roscoe Cri. Ev. 1.
    In tbe State of New York, where tbe judges assess tbe fine in assaults and batteries, it has been held that, “On an indictment, trial will not be stayed because a civil suit is pending for the same assault and battery, though it seems judgment may be stayed after conviction, until after tbe decision of tbe civil suit.”
    
      In Alabama, it bas been held tbat tlie mere pendency of a civil suit for the same assault and battery, might be given in evidence in mitigation of, and to lessen the amount of the fine. — 1 Stew. R. 399.
    It is conceived, that abusive and improper conduct, immediately preceding the act complained of, is more to be regarded in estimating the quantum oí guilt and proper punishment, than the mere fact that a civil suit for damages for the same wrong is pending or decided.
    The bill of exceptions discloses the fact that the party assaulted was the wife of the defendant below. It is not denied, that a husband may be convicted for an assault and battery on his wife; but it is insisted, that by the ancient common law he had the power of chastising his wife, and although this doctrine finds no advocate in modern time, yet no “court of law in the last resort” has assumed the legislative function, and absolutely denied its present existence.
    M. A. Baldwin-, Attorney General, for the State.
    1. In an indictment for assault and battery, the rule is, that provocation immediately preceding the battery is admissible in mitigation of damages; aliter, if a cooling time elapse.’ — ■ Jacanay v. State, 7 Yerger, 82-84; Wright v. State, 91b. 342; Watson v. Christie, 2 B. & P. 244; Bull. N. P. 17; 1 Salk. 11.
    2. The case of Autrey & Autrey v. State, 1 Stew. 899, relied on by defence, bears no analogy to this case. In that case it is said, that the reason why the pendency of a civil prosecution may be shown in mitigation of damages is, that the object of the law is the reformation of the offender; and this object may be accomplished as well by the civil as the criminal prosecution.
    Evidence of the misconduct and bad behaviour of the injured party has no tendency to the reformation of the defendant. But if the provocation immediately precedes the battery, evidence of it is admissible out of regard to the frailty and passion of human nature. There is no evidence as to the time the wife misbehaved or acted badly.
   CHILTON, J.'

The question in this case is, whether, if a husband commit a battery upon the wife, tbe circumstances of provocation attending it, which her bad behaviour and misconduct afforded, may be given in evidence to the jury in order to mitigate the fine. We think the law is, that circumstances of provocation occurring at the time, and immediately inciting the party to the unlawful act, may be received in extenuation to mitigate the fine. The law so far regards the frailty of human nature, as to distinguish between him who, upon sudden provocation, commits an unlawful act, and one who does it wantonly and deliberately. The same measure of punishment is not, and ought not to be applied indiscriminately to both. So in this case, if the husband was at the time, as is shown by the bill of exceptions, provoked to this unmanly act by the bad behaviour and misconduct of his wife, he should not be visited with the same punishment as' if he had withorit provocation wantonly and brutally injured one whom it was his duty to nourish and protect.

It results from this view, that the evidence of. provocation was improperly excluded from the jury, and the judgment is consequently reversed, and the case remanded.  