dissenting. — The writer of this opinion presided at the trial of the defendant, in the court below, and for this reason, he would have preferred not to participate in a discussion of this case in this court. The law, however, does not disqualify him from sitting;, but on the contrary imposes upon him the duty and responsibility of declaring the law as he believes it to be. The importance of the question involved, and the conviction that there was no error committed on the trial warrants him in expressing his views.
The sole proposition upon which a majority of the court rest the decision for a reversal, was the refusal to allow defendant to offer testimony tending to establish that illicit sexual relations existed between the deceased and defendant’s sister, Mrs. Miller, for some months prior to the hilling.
In my opinion, some of the conclusions reached by the v riter of the main opinion can be shown to be erroneous, by a review of the testimony, as disclosed by the record, and by beeping in view the order of its introduction in the trial court bearing upon this question.
I do not deem it necessary to state the evidence introduced in behalf of the State, tending to establish the culpability of the defendant, nor all the evidence o fferecL by him to prove his innocence, but will confine my statement of it, strictly to such portions as tend to shed light upon the question under consideration. Before doing so, however, I desire to state what the record does not contain. It nowhere appears that the defendant’s sister *69was a widow as stated in the main opinion; all the witnesses who speak of her, designate her as Mrs. Miller. This would authorize the presumption, and indeed we must presume, that she was a married woman, living at the time with her husband. Again the evidence is entirely wanting to show as to where she resided — presumably, in the absence of proof to the contrary, with her husband; and it is not shown that defendant resided with them in the same house: on the contrary it is disclosed affirmatively, that the defendant at the time and prior to the killing was living at the home of his kinsman, W. S. Hartley, assisting him in caring for and nursing his sick wife. It appears that the only threat ever communicated to defendant, was the one made to W. S. Hartley, the first witness examined by the defendant. He testified to a conversation with the deceased on the day of the killing in which deceased said to him, “Tell John Grafford, if he is at your house, that he (deceased) was going to kill him, that the country was not big enough for them both.” To this statement witness asked, “what’s the trouble,” to which deceased replied, he knows “what’s the trouble, you tell him what I say.” It nowhere appears in this conversation that any allusion was made to Mrs. Miller, or the alleged relations that existed between her and deceased ,and the defendant, in his testimony in narrating what this witness told him, as to this threat, does not intimate that he had been informed by Hartley that deceased made any reference to his sister. In fact, he says that Hartley simply told him that deceased said “that this country was not large enough for us both.” For aught that appears from the above, this threat had reference to some other matter of controversy between deceased and defendant. The testimony offered by defendant to establish acts of adultery, and excluded by the court, is not shown to have been communicated by the witnesses to him before the killing. Indeed, the only facts disclosed by the evidence, introduced by defendant tending to show there was any controversy between deceased and defendant over Mrs. Miller, appears in defendant’s testimony as occurring just before the killing, which is in the following language': “Lloyd said he had *70heard some talk in Greenville, and defendant said he was surprised that Lloyd had broken his agreement. Lloyd asked how? By lending her your buggy, said defendant. Lloyd said he Avas not at home Avhen she got the buggy, that his Avife lent it to her. Well, said defendant, that is all right if you did not let her have it.” In offering the testimony of specific acts of adultery, there AAas no intimation by counsel, and it Avas not stated to the court, so far as appears in the record, that either of the witnesses who Avere called to testify to seeing specific acts of adultery betAveen deceased and Mrs. Miller had ever informed defendant of Avhat they had seen. It is upon the refusal of the court to permit this evidence to be introduced, that defendant’s counsel in their brief complain. Before entering upon a discussion of the question raised by this ruling of the court, I desire to dispose of the question propounded by defendant’s counsel to him relating to this subject. And in order to do so intelligently, the fact must not be overloked, that there Avas no evidence before the court tending to establish any illicit intercourse between deceased and Mrs. Miller when the question was asked; and we must not be unmindful of the rule so often announced by this court, that error will not be presumed, but must affirmatively appear from the record. — Wilson v. State, 113 Ala. 401; Hurd v. State, 116 Ala. 440. The question propounded Avas: “Were you aAvare of any illicit intercourse betAveen Lloyd and your sister? the solicitor objected and the court sustained the objection of the solicitor, and the defendant duly and legally excepted to the ruling of the court.” I have quoted the exact language of the question asked and the objection and rulings of the court. It will be observed that only a general objection Avas made by the solicitor and if there existed any legal objection to the question, this court will be constrained to hold, that the ruling of the court in refusing to allow the question to be answered Avas without error.- — Cobb v. State, 115 Ala. 18; Wilson v. State, supra; Hurd v. State, supra. The question was undoubtedly leading and assumed as a fact that illicit intercourse between deceased and Mrs. Miller existed, when no such proof had been allowed to *71be introduced and none had been offered tending to establish such a relation of which defendant had been informed by the witneses called to testify to it. — Green v. State, 96 Ala. 29. “In order to reserve an available objection to the exclusion of evidence a proper question must be asked.” — 8 Ency. Pl. & Pr. 236 and note 4. Besides, an offer must have been made showing what evidence would be given if the witness was permitted to answer the question and the purpose and object of the testimony sought to be introduced. — 8 Ency. Pl. & Pr., supra.
In the case of Tolbert v. The State, 87 Ala. 27, Judge Stone, in speaking on this subject, said: “Several objections were made and sustained to questions propounded to witnesses; but it is not shown what answers the witnesses were expected to give, nor indeed, that they could have given any information on the subjects inquired about, affecting the defendant. We cannot consider these objections.”
There was other testimony introduced by defendant, after he Avas examined as a Avitness, but it contained no reference to threats or the alleged relations betAveen deceased and Mrs. Miller. It, hoAvevér, does appear that on rebuttal the State introduced as a Avitness, the father of the deceased, who testified to íavo distinct interviews between defendant and deceased — one had at Hartley’s house one week before the killing, and the other at the home of the deceased on Saturday night before the killing. In the first conversation the subject of discussion was whether there Avas any truth in the threats that each had been reported as making against the other, and a charge by defendant that deceased had been lending his buggy to Mrs. Miller, Avhich Avas denied by deceased. In the second conversation defendant asked deceased “If there was any foundation in the rumor about you and my sister?” to which deceased replied: “There is no truth in the rumor, I have always had the greatest respect for her.” That defendant and deceased parted at the end of each of the intervieAVS very friendly.
I have alluded to this testimony for the purpose solely of showing that it cannot, in my opinion, affect the ques-*72lion under consideration, should it be construed, as it seems to be by the learned judge in his discussion of this question, that it showed that improper relations existed between deceased and Mrs. Miller, and as a result that an injustice Avas done defendant by reason of the rulings of the court in this respect, in that “the jury Avould naturally look in Amin for any motive that might have impelled the defendant to become the aggressor” after a friendly separation betAveen them. Upon whom should the blame rest? Trial courts are not clothed Avith the poAver or authority to direct the manner in which parties litigant try their causes. Neither can they compel the order in point of time in which testimony shall be offered; nor are they presumed to know what state of facts will be proven by* any witness. To so hold, as is clearly held in the opinion of my brothers, is to say that the trial judge must possess a mind capable of penetrating the future and foretelling future events. In other words, he must be capable of anticipating the character and nature of the testimony of every Avitness to be examined, when called upon to decide the admissibility of evidence, Avhich in his opinion at the time is improper.
I feel confident that Avhat I have said demonstrates that there Avas no error in the refusal of the court to alIoav the question to be propounded to defendant, and reduces the points of difference betAveen myself and the majority of the court to a single inquiry. It is, whether the specific acts of adultery betAveen deceased and Mrs. Miller, uncommunicated to defendant, Avere admissible in evidence for any purpose? Leaving out of consideration for the present the elements of self-defense, and according to the defendant the same protection Avhich the law accords to a husband who kills the adulterer of his wife, which, however, under the circumstances of this case, I shall show later on that he is not entitled to, let us inquire what were the husband’s rights in such cases? The rule stated in Bishop’s New Criminal Law, vol.-2, section"708, as follows: “If a husband finds his wife committing adultery and under the provocation instantly takes her life or the adulterer’s, the homicide is only manslaughter. But if, on merely hearing of the *73outrage lie pursues and kills the offender, he commits murder,” seems to he, with one single exception, the universal rule of the courts of England and this country. In England this rule was so decided in the following cases and authorities: Regina v. Maugridge, J. Kelyng, 137; Foster, 298; Regina v. Kelly, 2 C. & W. 814; Manning's case, Raymond’s Rep. 212; Fisher’s case, 8 C. & W. 182; Moddy's case, 1 Ventris Rep. 158. In America the following cases declare the same rule: Hill v. State, (62 Ga.) 1 Criminal Law Magazine & Reporter, 355; Shufflin v. People, 62 N. Y. 229; People v. Osmond, 138 N. Y. 80; Sanches v. People, 22 N. Y. 147; State v. Bulling, 105 Mo. 204; State v. Holme, 54 Mo. 153; State v. France, 76 Mo. 681; 1 Houston’s Delaware Reports Criminal Cases, 249; People v. Hurtado, 63 Cal. 288; Reed v. State, 62 Miss. 405; Alfred v. State, 37 Miss. 296; Sawyer v. State, 35 Ind. 80; State v. Avery, 64 N. C. 608; State v. Harman, 78 N. C. 515; State v. Samuel, 3 Jones Law (N. C.) 74; State v. John, 8 Iredell, 330.
In this State the rule seems to he that if the husband detects his wife in the act of adultery and immeditely slays her or her paramour, the law does not entirely justify or excuse him, but holds the provocation sufficient, as matter of law, to reduce the killing to manslaughter; and if he detects them, not in the act of adultery, but in a compromising position under suspicious circumstances and immediately kills one or both of them, it is a question for the jury, whether the provocation was sufficient l.o reduce the grade of the offense and whether he acted under the heat of sudden passion thereby excited, as in other cases of homicide under the heat of passion excited by great provocation. — Hooks v. State, 99 Ala. 166; McNeill v. State, 102 Ala. 125; Dabney v. State, 113 Ala. 38. It will be observed that these three cases do not contravene the doctrine as laid down by Bishop, but simply do not require that it shall be necessary that the husband shall detect or discover them in the very act of adultery.
I have examined all of the cases above cited and many of the text books carefully, and have been unable to find any departure from that provision of the rule declaring that if the husband on merely hearing of the outrage pur*74sues and kills the offender lie commits murder, except the case of Copeland v. The State, Horrigan & Thompson’s Cases of Self-Defense, 41, relied upon as authority in the main opinion, which I maintain stands alone in American and English jurisprudence, and of which I will later give a more extended notice. The reason underlying this rule in England is stated in the case of Regina v. Maugridge, supra, decided by the Court of King’s Bench during the reign of Charles the Second, to be because the adultery of the wife is an invasion of the property rights of the husband. The language used by the court is in these words: “For jealousy is the rage of man and adultery is the highest invasion of property.”
Pretermitting an extended discussion of the relations and rights of husband and wife under the old common law, I will content myself by showing in a brief way, that this reason assigned by the courts of England was the only logical one upon which the doctrine could rest. He was her lord and master and her will was subservient to his in all matters. So great was the matrimonial subjection of the wife to the husband, that “for at least one thousand years,” says Blackstone, in the Kingdom of Great Britain the command or coercion of the husband either express or implied, “will privilege the wife from punishment even for capital offenses.” As civilization progressed, the marital rights of the wife, however, were enlarged and her responsibility for crime increased, but even to this day in England and this country, actual constraint imposed by the husband will relieve her from the guilt of any crime committed in his presence.- — -1 Bishop, S § 358 et seq. While the cases cited from the various courts of this country, do not expressly assign any reason lor the recognition of this rule, yet it may be fairly inferred from them that this right is accorded the husband on account of the jealousy and frenzy produced in his mind, incapable of being restrained by him, upon seeing or detecting an act so grossly violative of his sacred conjugal rights.
The next question I will discuss, is, did the defendant occupy such relation to Mrs. Miller as that he can be accorded the protection afforded her husband, had he, the *75defendant, detected or discovered lier and deceased in an act of adultery and slain him on the spot? We have heretofore shown that Mrs. Miller was a married woman living presumably with her husband, and that defendant was not an inmate of their household. Therefore, there could have been no relations between them, which imposed upon him a legal right or natural duty to protect her chastity. She had surrendered those that existed between herself and her father’s and mother’s household when she made the allegiance by marriage with her husband. By this act of marriage she formed new and different relations and obligations, which bound her to fulfill only to the satisfaction and gratification of her husband and their, immediate household and transferred to them alone this legal right and natural duty to protect her. These reasons to my mind are conclusive that the reason given by the courts which accorded to the husband this right, has no application to this case. Jt is a maxim of the law that “reason is the soul of the law and when the reason of any particular laAV ceases, so does the law itself.” — Broom Legal Maxims, 159. Tn support of the correctness of my vieAvs, I quote the language as found in 1 Wharton on Criminal LaAV, section 460, as folloAvs: “A man can not, indeed, thus avenge the adultery of his paramour, for the connection is not merely unauthorized by law, but in defiance of laAV. But where there is a legal right and natural duty to protect, there an assault on the chastity of a Avard (using this term in its largest sense) will be sufficient provocation io make hot blood thus caused, an element which will reduce the grade to manslaughter. * * Supposing the injury to female chastity to be avenged in hot blood by a . brother, a father, or other person having a right to protect the person injured, the offense is but manslaughter. But a brother cannot, after his sister has been apprehended in adultery, set up the provocation as a defense to an indictment against him for killing her paramour.”
In the case of Lynch v. Commonwealth, the Supreme Court of Pennsylvania held, where Lynch, the defendant, who lived with his sister, a married woman Avhose husband was away from home and had been for five *76weeks, suspecting that she was in the act of adultery, listened at the door of her chamber and being confirmed in his suspicious, took his knife from his pocket, opened it and forced the door in; he found her rising from the bed, undressed and a man in bed; he stabbed the man three times with the knife; of one of the strokes the man died —that the provocation was not sufficient to reduce the killing to manslaughter — 77 Pa. St. 205. The foregoing demonstrates to my mind conclusively, that deceased could not have regarded defendant as an obstacle to his illicit intercourse with Mrs. Miller, if it existed, and that the jury would not have had a right to infer, had the fact of such intercourse been proven, a motive on the part of deceased, as said by my brothers, “to remove a dangerous obstacle out of the way of his illicit enjoyment.”
The opinion of my brothers, in treating of the doctrine of self-defense, proceeds upon the assumption that the fact of sexual intercourse between deceased and Mrs. Miller was known to defendant. This I have shown to be erroneous. The testimony most favorable to this contention was that of the father of the deceased, which I have shown was introduced by the State on rebuttal. It nowhere appears in defendant’s testimony. So in dealing with the rulings of the court on this question in connection with the defense of self-defense, we are bound to do so upon the state of the proof before the court at the time of its rulings. The only theory, therefore, upon which the main opinion is defensible is, that this testimony stands upon the same footing with uncommunicated threats. In discussing the declarations of deceased other than threats, the Supreme Court of California, in the case of The People v. McLoughton, 5 Criminal Law Rep. 404, said: “We do not see that the deceased stood in any such relation towards the commonwealth as to render his declarations admissible as evidence. It cannot be properly said that in prosecution of offenses, mala in se, the commonwealth asserts a private right or maintains an individual interest in any such souse as may be affected or bound by hearsay statements of those who may have been the victims or objects of a *77criminal act on their property or person. There is no such legal identity or privity between them and the commonwealth as to render their statements admissible in behalf of those who are charged with the commission of the crime.” This rule would, of course, govern as to the admissibility of acts of deceased of like import.
The general rule is that the defendant charged with a crime is limited in the introduction of evidence to such acts and declarations as constitute a part of the res gestae - “in other words they must stand in immediate causal relation to the act and become a part either of the action immediately producing it, or of action Avhich it immediately produces. Incidents that are thus immediately and unconsciously associated Avitli an act, whether such incidents are doings or declarations become in this Avay evidence of the character of the act.” — Wharton’s Grim. Ev., (8th ed.), § 268, and note. The only exception to this rule, that I have been able to find is, that the acts or declarations of deceased indicating a hostile condition of his mind towards the defendant are admissible in cases of doubt as to avIio Avas the aggressor, and to explain the nature and character of the assault, if made by him. And this doctrine is treated by all the text writers upon the subject of evidence as an exception to the general rule, and the only one recognized by them. All of them treat of the law of self-defense and of threats, communicated and uncoinmunieated, and, if the laAV be as contended for by my brothers, it is, indeed, passing-strange that not one of these writers upon the subject of criminal laAV, nor any of the learned judges in the numerous cases which have been decided involving the doctrine of threats, ever intimated that the cause from Avhich the threats made by deceased emanated, was admissible. Mr. Rice, in his work on Criminal Evidence, limits the doctrine to threats, and, inferentially excludes even acts indicating a hostile mind.
Should I concede that the threats made by deceased emanated from a belief that the defendant Avas interfering Avitli his relations with Mrs. Miller, I must confess, I cannot see hoAV the evidence of the acts of adultery Avould add any potency to their intensity or give them a *78deadlier hue of hostility. While this court has held in a number of cases that evidence of former difficulties between the defendant and the party slain by him, may be introduced by the State, for the purpose of showing malice or motive for doing the deed, yet the inquiry was limited strictly to the fact of the difficulty, refusing to inquire into its merits or the particulars, and this too upon cross-examination by the defendant for the purpose of showing that the deceased was at fault in the former difficulty. Many of these cases show that the party slain had made threats against the defendant. The reason given by the court was that “any evidence touching the merits would have multiplied the issues before the jury and would have served no other purpose than to distarct and divert their attention from the real issues they were to try.” — Commander v. State, 60 Ala. 1; McAnally v. State, 74 Ala. 9; Gray v. State, 63 Ala. 66; Rutledge v. State, 88 Ala. 85; Hudson v. State, 61 Ala. 333; Lawrence v. State, 84 Ala. 424; Stitt v. State, 91 Ala. 10; Jones v. State, 116 Ala. 468. It certainly will not be denied, that, if defendant had been permitted to introduce this evidence, the State would have had the right to contradict it, and to this end introduce testimony to disprove it. So the issue tried would practically have been the one of illicit sexual intercourse between deceased and Mrs. Miller, instead of the crime, as preferred by the indictment against the defendant.
The only case of this court cited by my brothers upon which they rely for the latitude which they allow for the admissibility of this evidence, is Mattison v. The State, 55 Ala. 224. I have no controversy with the doctrine announced in that case, but insist that a proper application of it, is an authority for my contention and in perfect harmony with the principles declared in Commander v. The State and other cases cited supra. This court there said: “In inquiries of fact, dependent on circumstantial evidence for their solution, no certain rule can be laid doAvn, which Avill define, with unerring accuracy, what collateral facts and circumstances are sufficiently proximate to justify their admission in evidence. Human transactions are too varied to admit of such clear decla*79ration of the rule. Whatever tends to shed light on the main inquiry, and does not tvithdraiv attention from, this main inquiry by obtruding upon the minds of the jury matters 'which are foreign or of questionable pertinency, is, as a general rule, admissible evidence. On the other hand, undue multiplication of the issues is to be steadily guarded against as tending to divert the minds of jurors from the main issues.” In the .main opinion, while a portion of these qualifying words are quoted, still it is apparent that no importance is attached to them. In fact they are entirely ignored, and the broad language, “whatever tends to shed light upon the main inquiry” is made the basis of authority to sustain their views.
And these principles would he applicable if the defendant had known of the acts of adultery. In the case of Neville v. The State, 6 Jones Law (N. C.) 423, the evidence introduced by defendant tended to show that deceased was advancing upon him with a drawn knife, after hot words had passed between them, when he shot and killed him. The defendant offered to prove that on the evening before the killing, the deceased came to his home and tried to ravish his wife; the court below refused to permit him to do so. Justice Ruffin, in an able opinion, which is the leading authority in this country on this subject, speaking for the court, held that “if admitted and believed, it could not change the character of the offense and ought to have been rejected.”
In the case of The State v. Herrell, 97 Mo. 105, the defendant killed the paramour of his mother, who was a widow, in a sudden rencontre, and there was testimony tending to show he acted in self-defense, and this Avas one of his pleas. He offered to prove that the deceased and his mother had been living in adultery. The court said: “All this testimony as to deceased having lived in adultery Avitk defendant’s mother, Avas wholly outside of the case and constituted no palliation or mitigation of defendant’s guilt of the homicide, and should not have been admitted.”
In the case of State v. Wilson, 38 Conn. 126, the defendant offered to prove that while a prisoner confined *80in the State prison as a convict for a long time previous to the killing and at the time of the killing, the deceased, who was the warden of the prison, fed him on “putrid and stinking meat,” and that by reason thereof, he ivas compelled to kill deceased in self-defense, which was refused by the lower court. The Supreme Court of Connecticut affirmed this ruling, saying: “If all the prisoner claimed to be able to prove had been proven or admitted to be true, the court would have been bound to instruct the jury that it furnished no justification for the killing. SUggeg-fcj0n of counsel that the evidence might be admissible to mitigate the offense ivas without force; for the undoubted effect of the evidence was to show that the killing was intentional, deliberate, premeditated and not occasioned by any sudden provocation.”
In Rogers v. State, 23 So. Rep. 666 (117 Ala. 9) the evidence of the defendant showed that lie was the father of Emma Rogers, a girl about 13 years old; that the deceased carried her to church on Sunday night before the homicide and had never brought her back; that he, defendant, who was away, returned to Gadsden Tuesday evening and some of his children told him that deceased was back and had a gun and had said if he, defendant, asked him anything about Emma he was going to kill him; that on the morning of the killing he saw deceased at one Patterson’s house, and that upon going up to the crowd who were sitting on the front porch, he asked deceased where his daughter was, to which he made no reply; and he then asked him, why he had carried her off,, and that to this inquiry the deceased said he carried her off because he wanted to, and then threw his hand to his hip pocket, whereupon defendant shot him. The defendant then offered to prove by other -witnesses that deceased had carried his daughter from the church on Sunday night next before the killing to the house of a kinswoman of his, and that during the night, between midnight and day, he induced the girl, under promise of marriage, to go with him to Asimile, Ala.., and stopped at the house of a sister of deceased; that the two stayed at the house for a day and night, when the deceased left, Tuesday, and returned to Gadsden, Ala., leaving the girl *81in Asimile, not having married her or even offered to marry her; and that these facts were communicated to defendant a short time before the homicide. The circuit judge refused to permit the evidence to be introduced. On appeal to this court, Justice McClellan, delivering the opening, said: “The facts that the deceased, a boy 3 6 years of age, carried the daughter of defendant, a girl of 33 or 14 years, from Gadsden to Ashville 3 or 4 days before the homicide, under a promise of marriage; that he did not marry her; and that leaving her at Ashville, he returned to Gadsden two days before the shooting, can neither justify nor palliate the defendant’s act in killing him, nor shed any legitimate light on the transactions. And this would he true even had his wrong been more aggraAated, — even had he debauched the girl, of which there is no pretense. In such case, if the mortal blow had been given by the father immediately upon hearing of the wrong to his daughter and in the heat of passion engendered by the fact coming to his knoAvledge, all the facts would have been admissible to eliminate the element of malice from the act, by referring it to passion Avhich had not had time to cool, and thus reducing the homicide to manslaughter. But there is no pretense that the homicide was committed under these circumstances. To the contrary, it affirmatively appears that the defendant came to a knoAAdeclge of all the facts — as full knowledge as he had at the time he shot deceased — two days before the shooting occurred. This court is firmly committed to this vieAV in consonance with long established principles, and we take this occasion to utterly repudiate AAliat is said in the case of Flanagan v. State, 46 Ala. 703, to the contrary; and on the point under consideration that case is overruled. The trial court did not err, therefore, in its rulings on the proposed evidence. The homicide involved here was either murder or justified on ih e ground of self-defenseThis case, hoAvever, was re-Arersed upon the refusal of the lower court to give a charge requested by defendant. On the second trial, the record sIioavs that the evidence introduced by defendant lending to establish self-defense, was substantially the same as upon the first. The defendant, theq offered to *82prove that deceased did have sexual intercourse with his daughter on their trip to Asimile under promise of marriage. Upon a second appeal to this court (23 So. Rep. HOOT) Justice McClellan, speaking for the court, said: ‘■On this appeal the court holds that the trial court in its rulings followed the ruling of this court on the former appeal and there is no error in the record. — Rogers v. State, 22 So. Rep. 666.”
The main opinion undertakes to distinguish this case from the one under consideration and holds as a matter of law that the proof concerning hostile demonstration on the part of Hale, the deceased, Avas insufficient to raise the question of self-defense. With all due respect to the opinion of my brothers, I submit that their reasoning is fallacious and indefensible. The facts in the two cases are practically the same except that in the Rogers Case, the defendant was the father and the natural guardian of the chastity of his 13 year old girl, and the outrage upon her was known to him at the time of the killing; Avhile in the case under consideration, as we have shown, the defendant was not the guardian of Mrs. Miller’s chastity and did not knoAv of any acts of adultery between her and deceased. It will be observed that in each there were threats made by deceased against the defendants; in the Rogers Case the threats of deceased Avere directly traceable to the act of adultery AAdth defendant’s daughter; whereas in this case, they were, at best, merely inferably traceable to the acts of adultery between deceased and Mrs. Miller.
If the specific acts of adultery offered to be proven betAveen deceased and Mrs. Miller were unknown to defendant, as I contend they were, but he merely suspected the relation to exist, then the case of Robinson v. State, 108 Ala. 14, is directly in point. The evidence in this case i’or the defense, tended to show that when approached by defendant, the deceased was in a conversation with a sixteen year old sister of the former; that defendant asked the deceased his intentions, called his attention to the fact that he had told him to let his sister alone, and that after some quarreling, the deceased drew his oistol and fired twice upon the defendant, and that the latter *83returned the fire, killing the deceased. During the progress of the trial, the defendant showed that a note from bis sister was found on the body of the deceased, and offered to prove the contents of the note, stating that this a\ ould show that deceased had met the defendant’s sister at the place of the killing by appointment and for the purpose of having illicit intercourse Avitli her. The court refused to alloAv the note in evidence. Again Justice McClellan delivered the opinion of the court, in Avhich he said: “Neither the contents nor the existence of the note received by the deceased from the defendant’s sister and found on the person of the former after the homicide, nor the note from deceased to the sister to which this was a response Avas known to the defendant at the time of the killing. Ilis conduct, therefore, could not possibly have been influenced in any degree by these notes; and of course, they could not be looked to, to furnish a circumstance either of guilt or innocence, nor of aggravation or palliation in respect of the offense for Avhich he avus tried and convicted. Had he known of this correpondence and its character, it and his knowledge of it would have been competent evidence of premeditation and malice on his part, unless he came by it, for the first time to a knoAvledge of the illicit relations between deceased and his sister and immediately in the heat of passion engendered by it and before cooling time as the laAV avis el y defines that period, he had shot and killed deceased. As he did not know of it at all, the court properly excluded it from the jury.”
This case is not only authority for the proposition for AA'hieh I have cited it, but also for the doctrine laid doAvn in the case of Rogers v. State. If dictum, upon this last point, it is in harmony with every decision of the American courts except the decision in the case of Gopeland v. State, Horrigan & Thompson’s Cases of Self-Defense, 41 heretofore referred to.
In the case of People v. Osmond, 138 N. Y. 87, Justice Beckham said: “Again, counsel for the defendant claims evidence should have been permitted, even though the defendant Avas ignorant of it, Avhich tends to show that the (his) Avife and Burchell Avere maintaining illicit *84relations. * * * The principle is not the same as that decided in People v. Stokes (58 N. Y. 164). There the question was in regard to the character of the encounter which took place between the parties when the shooting was done: was it done by Stokes in self-defense or was he the aggressor? It was held competent to prove the fact that the deceased had himself made violent threats against Stokes shortly before, even though those threats had not been communicated to defendant. This was upon the ground that the jury might consider the fact in determining the character of the encounter between the parties. But how can acts of infidelity or acts which tend to prove infidelity on the part of the wife, in any degree tend to show the state of the mind of the defendant upon this subject if such evidencé had not been known or repeated to him? We entertain no doubt of the correctness of the ruling of the court below in this case.”
On account of the length of this opinion, I must content myself by simply saying of the opinion in the case of Copeland v. The State, upon which the decision of the majority of the court in this case relies mainly for their conclusion, that it does not go to the length of holding that if the act of adultery had been unknown to defendant, it would have been considered by the court. In the main opinion it is said: “If the question of self-defense were out of this case, it would be quite clear that all testimony of this character would be inadmissible for the purpose of justifying the murder and would be equally unavailing to reduce the killing from murder to manslaughter.” The argument is, as self-defense is in the case, the defendant may introduce the testimony for the purpose of justification, which I have shown tends alone to establish that the killing was intentional, deliberate and premeditated. If this is sound logic, he may take the sword of justice and convert it into a shield to protect himself from the legal consequences of a deliberate murder.
In my opinion the judgment of the court should be affirmed.