There was no error in excluding the question put to Mrs. Week. It called for mere hearsay. The homicide had taken place and Mrs. Yanz had left the scene of the transaction. Her declarations could not have served to characterize any contemporaneous act, and therefore could not be claimed as part of the res gestoe. That she could not be compelled herself to take the witness-stand was no cause for their admission.
The trial court in its charge to the jury used this language: "If the accused saw his wife in any such situation as he has described, he had at least a legal right to interfere and separate them, and to carry with him a weapon for defense against any possible attack. And further, if in pushing his way through the bushes, and under the excitement naturally and ordinarily to be expected under the circumstances, the rifle was accidentally discharged, and the man thus met his death, then the homicide was by misadventure, and the verdict should be `Not guilty.'" "There is one kind of provocation, gentlemen, which is of such a grievous nature that the law concludes it cannot be borne in the first transport of passion. This is where or when a man finds *Page 180 another in the act of adultery with his wife; when, if he kills him in the first transport of passion, thereby aroused, he is only guilty of manslaughter. The law does not hold him altogether guiltless of crime: to kill even in the first transport of passion, when under that highest and strongest provocation, is in law criminal. It is manslaughter, the lowest form of criminal homicide; not murder. The adulterer under our law has a right to live; and the injured husband has no legal right to kill him, even in the first transport of passion aroused by finding him in the act. To have the effect of reducing the homicide from murder to manslaughter, the husband must find the adulterer in the act of adultery. The finding may be by any such observation of the circumstances and of the situation of the guilty parties as justifies the belief that adultery is being committed. Knowledge that the adultery is at the time being committed is sufficient; but if the husband, merely hearing that the adultery had already been accomplished, or merely observing the situation which leads to the belief that adultery has been accomplished, pursues and kills the offender, it will be murder. The witnessing of a passing fact is regarded as having a greater tendency to excite a transport of passion than the mere hearing or the mere belief that it has been accomplished. If, in fact, no adultery was going on, and the husband is mistaken as to the fact, though the circumstances were such as to justify a belief, even, of adultery the offense would not be reduced to manslaughter. The husband must judge at his peril that the jury may find that he was mistaken, and so find him guilty of murder instead of manslaughter."
There are inconsistent expressions in these instructions, but it is to be presumed that those used last were accepted by the jury as controlling; and they were the least favorable to the accused.
In case, then, they believed so much of the defendant's testimony as described the circumstances in which he found his wife and Goering together, and the effect which they produced and were reasonably calculated to produce upon *Page 181 his mind, but disbelieved his statement that the gun was accidentally discharged, the charge gave them to understand that if the act of adultery was not in fact committed, the killing was murder.
The law justifies a jury in calling it but manslaughter when, on finding his wife in the act of adultery, a man, in the first transport of passion, kills her paramour. This is because from a sudden act of this kind, committed under the natural excitement of feeling induced by so gross an outrage, malice, which is a necessary ingredient of the crime of murder, cannot fairly be implied.
The excitement is the effect of a belief, from ocular evidence, of the actual commission of adultery. It is the belief, so reasonably formed, that excites the uncontrollable passion. Such a belief, though a mistaken one, is calculated to induce the same emotions as would be felt were the wrongful act in fact committed.
The crime of murder in the second degree, under our statute, § 1399, rests upon implied malice. It is not sufficient to establish merely a criminal intent followed by a homicide. Malice is not to be implied if the fatal act was the sudden result of what the law deems either a sufficient provocation or an uncontrollable passion naturally excited by the circumstances of the occasion. State v. Johnson,41 Conn. 584, 587, 588. The law deems a husband's passion, excited by surprising his wife in the act of adultery, so far uncontrollable, from the frailty of human nature, that if he kill her paramour on the impulse of the moment, and no actual malice is disclosed, none ought to be implied. He is not justified; but he is not a murderer. The reason of this rule of law being the existence of an uncontrollable passion, naturally induced, it must logically follow that it suffices if such a passion has been naturally induced in the mind of the slayer by the sight of his wife in the embrace of the man whom he killed, and a reasonable belief of her guilt, formed under circumstances such as those to which the accused testified in the present case. If the jury believed this testimony, or so much of it as showed a state of facts which, in their *Page 182 opinion, justified and produced a reasonable belief on the part of the accused that adultery was being committed when the shot was fired, then, there having been no proof of actual malice, although they may also have believed that it was fired intentionally, the natural excitement of passion and want of premeditation make the offense manslaughter. Morris v. Platt, 32 Conn. 75, 83.
There is error, the judgment is set aside, and a new trial is ordered.
In this opinion TORRANCE and HALL, Js., concurred.