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conduct, resulting in widening the breach between them, and causing the deceased at one time to attempt to take the life of the accused by shooting him with a pistol, and was prevented by parties present from firing. On the Saturday night preceding the difficulty in which Eady lost his life, the deceased had driven his wife from her home to her father's, and on the next day (Sunday) the deceased went to the home of the accused, with pistol in hand, threatening to kill him, and was prevented from executing his threat by the wife of the accused closing the door and hiding her husband from his sight. The deceased, from the evidence before us, had an unnatural aversion to both his wife and her father, and this passion, fed and inflamed by the constant use of intoxicating drinks, kept the wife in constant danger of bis brutal assaults, that seemed to increase as their married life progressed.
Such is, in substance, the history of these domestic troubles and the connection of the accused with them up to the 31st of May, about nine o'clock at night, when the accused fired the shot that ended his son-in-law's life.
The accused was told about four o'clock in the evening of that day that the deceased was abusing his daughter, and at eight o'clock another messenger arrived, informing him of what was transpiring. He lived about three squares distant from the residence of his son-in-law, and on receiving the last information, seized his pistol, and hurried to the residence of the deceased, and there found his daughter and her children, at night, in the streets, driven from their hoine; and on meeting his daughter's husband, after some words had passed, according to the theory of the commonwealth, fired at the deceased as he was leaving him, but from the weight of the evidence when he was fronting him, the shot producing death. The theory of the defense is based on the testimony of the accused and another, who state that when they met, Eady cursed and abused the appellant, and made a motion with his hand behind him as if to draw a pistol, when the appellant fired; and in this the accused is corroborated by an eye-witness, who says he saw the pistol on the deceased at the time. Other persons, several in number, heard words pass between the accused and the deceased, but did not understand what was said, and their statements conducing to show, also, that the deceased was making no demonstration when he was shot, but in a defenseless condition.
This is, in substance, the testimony heard on the trial. The grounds for a reversal of the judgment of conviction arise from the instructions given by the court, and in refusing to permit evidence of the various assaults and batteries made upon the wife by the husband during their married life, with a view of showing the bona fides of the father in leaving his home on the night of the killing, with pistol in hand, and going to the rescue of his daughter. It seems to us, from the uncontradicted proof in the case, that there was evidence sufficient to satisfy any reasonable mind that the apprehension by the father of his daughter's danger alone prompted him to go to the home of the deceased on the night of the killing. Threats had been made from time to time against the accused by his son-in-law, by reason of his having interfered for the protection his daughter, and the entire circumstances and acts transpiring, from which these threats originated, were permitted to go to the jury, with a view of sustaining the plea of selfdefense by the accused, and his purpose in leaving his home on the evening of the killing. The details of the treatment of the daughter by her husband, as stated by these witnesses, placed before the jury the real facts of the case, and left no room to question the good faith of the father in the effort to protect his daughter. Other acts of personal violence than those admitted were excluded, but enough was admitted showing that the wife was in constant danger of bodily harm; and therefore this court could not well have reversed this case for the reason alone that this evidence was excluded. To have permitted such an investigation would have prolonged the trial, and shed no light upon the issue between the commonwealth and the accused.
At the time of the shooting the daughter was not in imminent peril. The trouble had just ended, and the daughter and her children on the street, when the accused reached the ground, and therefore there was no reason for permitting these threats against the accused, or the assault and batteries of the wife, to go to the jury in support of the proposition that the father shot his son-in-law to save the life of his daughter. The previous bad treatment of the wife would not justify the accused in taking Eady's life, but it would be competent, as already indicated, to show the lawful purpose of the accused in going to the place of the tragedy.
The threats of the deceased to take the life of the accused, accompanied by an effort to do so, such as the attempt to draw his pistol, would, of course, be competent on the issue of the defense of the person of the accused at the time he shot. The surrender of all parental control in confiding to the de ceased the care and custody of his daughter did not lessen the love of the father for his child, but seems to have created new ties of affection in the birth of two children, that made her the more the object of his love, than when she left the parental roof; and having a knowledge of such cruel treatment as not only destroyed her happiness, but endangered her life, it was his natural and legal right to go to the rescue of his daughter, to prevent the infliction upon her person of cruel and inhuman blows. Having the right to go to the premises of the deceased for this lawful purpose, he had the right to defend his own person, whilst there, from bodily injury.
The objection to the manslaughter instruction is, that it only follows the law as in ordinary cases of homicide, the jury being told that “if the killing was in a sudden affray, or in sudden heat and passion, produced by considerable provocation, such as a blow, an actual trespass to his person, then the jury should only find the accused guilty of voluntary manslaughter, and fix his punishment at confinement in the state prison for a term not less than two nor more than twenty years." It loses sight of the relation of these parties, and the right of the father to protect his child from the personal violence of the husband and to go even on his premises for that purpose; and when considering the instruction in regard to self-defense, this error becomes still more apparent.
In this case there was no blow or trespass to the person, but, from the testimony on the part of the state, the killing by the father was under the influence of sudden heat and passion, in in the effort made, in good faith, to protect his daughter against the assaults of her husband. It is not necessary that a blow should be given, or a trespass committed on the person of the accused, in a case like this, to reduce the crime from murder to manslaughter. The true test is: “Whether the law deems the provocation calculated to excite the passions beyond.control; if so, it reduces the offense from murder to manslaughter": Bishop's Crim. Law, 711. It is difficult to establish any rule defining the crime of manslaughter that will apply to every state of case, and hence the necessity of placing before the jury, in such a case as we have here, the right of the father to protect his child; for if a stranger had appeared upon the street, and taken the life of the deceased, not in self-defense, the crime could not be reduced to man. slaughter upon the idea that he was provoked to take the life of the deceased because of the story of the wronge perpetrated on the injured woman; nor could the father, unless impelled by passion created at the instant of time, have the offense reduced to manslaughter; but the law, in its wisdom, looking to the frailty of human nature, and the passions common to all men, where there is a sufficient provocation, will punish for the lesser offense; but, as said by Christiancy, J., in the case of Maher v. People, 10 Mich. 212, 81 Am. Dec. 785: “Provocations will be given without reference to any previous model, and the passions they excite will not consult precedent."
Whether there has been time for the passions to subside, and the better judgment to prevail, must necessarily depend on the facts of the particular case. The father had long listened to the details of his daughter's wrongg; he knew that her life was endangered; that his own life had been threatened; and, meeting her husband at the moment when the daughter and children had been turned into the street, with angry words passing between them, he fired the fatal shot, it was, if in the absence of malice, under great provocation, and such as lessened the punishment, if there had been an absence of all proof as to self-defense. If a heinous offense should be committed on the person of a man's wife or his daughter, as said in the case referred to, the passion would hardly subside as soon as in the case of a sudden quarrel. All such questions are necessarily under the control of the court, and to be determined when evidence is offered in mitigation of the offense. Lord Hale states a case like this: A, the son of B, and C, the son of D, fall out, and fight; A is beaten, and runs home to his father, all bloody; B takes his staff, runs to the field, three quarters of a mile off, and strikes C that he dies. It was held not murder in B, but sudden heat and passion. East and Blackstone both cite this case; and while some of the elementary writers criticise this illustration of the rule, by saying that the blow was inflicted by a weapon not likely to produce death, it still serves to show the view taken of the question by the earlier writers on criminal law; and whether that decision turned upon the one question or the other is immaterial in determining the question presented here.
In this case, the jury returned a verdict of manslaughter, and it is therefore maintained that no error existed by reason of the failure of the court to instruct the jury as to the right of the parent to protect the child. It is impossible to say
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what effect a proper instruction as to manslaughter would have had on the minds of the jury as to the duration of the punishment for the crime of which the accused was found guilty. It is manifest that under the instructions given, the appellant was either guilty of murder or entitled to an acquittal on the ground of self-defense; and if the question of provocation, caused by the beating of appellant's daughter, had been inserted in the instruction, the verdict as to the term of punishment might, and doubtless would, have been lessened. The jury should have been told, as a matter of law, that the father had the right to protect the person of his daughter from great bodily harm, even against the assault and battery of the husband; and further, that if they believed, from the testimony, the daughter of the accused, prior to the day on which the deceased lost his life, had been assaulted and beaten by her husband so as to endanger her life, or he had inflicted upon her person great bodily injury, and that the accused was appraised of that fact, and if they further believed that the assault and beating of the wife was renewed on the night of the 31st of May, and that he was informed of that fact, the accused had the right to arm himself, and go to the residence of the deceased to protect his daughter from the perBonal violence of the husband; and if, on reaching the place of trouble, he found his daughter and her children expelled from their home into the street by the deceased, and suddenly meeting with the deceased, in sudden heat and passion caused by the beating and ill-treatment of the wife from the appearances then surrounding them, shot the deceased when not in necessary self-defense, and without malice, he is guilty of manslaughter.
In ordinary cases of homicide, where the party kills when there is no reasonable ground for belief on his part of immediate danger of great bodily harm, the offense is murder. Not 80 when the husband pursues the adulterer and takes his life before there is time for his passion to subside, or the father flying to the relief of the child whose life has been endangered by the repeated cruelty of the husband. In all such cases the parent exercises no greater right than nature has assigned to the beasts of the field, that prompts them to fly to their offspring when in danger of bodily harm.
The error in failing to give such an instruction as the one indicated becomes the more apparent when considering the qualification annexed to the instruction in regard to self-de