#### STATE vs. REUBEN SAMUEL.

Eor a husband to slay one taken in the act of adultery with his wife, on the spot, is manslaughter; but to slay one because ho had,.beforc lhat timo, committed adultery with his wife, or because he believed he was going off with her to commit that act, is murder.

*75Indictment for Murder, tried before Caldwell, Judge, at the last Fall Term of Rockingham Superior Court.

The proof showed that the prisoner, in the month of April, 1851, killed the deceased, in the night time, with a wooden mallet, an instrument calculated to produce death, and that he afterwards concealed it. lie struck the deceased one blow with the mallet, which caused him to fall to the ground, and then gave him two other blows, with the same instrument, while prostrate. • All three of these blows were inflicted on the head, and each one fractured the skull. There ivas evidence that the prisoner had made previous threats against the deceased.

There was also evidence tending to show that the deceased was in the habit of committing adultery with the prisoner’s wife. On the night in question, the prisoner, his wife, the deceased, and other persons, were together at the house of a neighbor. There were two rooms to the house, to each of which there was a door opening outwardly, but none between them. About ten or eleven o’clock, the prisoner’s wife, his mother and sister, started for the prisoner’s residence, and passed the door of the room in which the prisoner ivas, without speaking’ to him; the deceased followed on immediately behind the prisoner’s wife, and as he passed the door bade him good night.

The prisoner took up a wooden mallet, and, following the decqgsed, at the distance of some fifteen steps from the house, struck him the blows, as above stated, of which lie died on the next day.

The prisoner’s counsel asked the Court to instruct the jury, that if they believed from the testimony, that the prisoner struck the deceased under an honest conviction that he was going oif with his ivife for thé purpose of adultery with her, they might find him guilty of manslaughter.

The Court told the jury that had the prisoner caught the deceased in adultery with his wife, it would have been manslaughter had he then immediately killed him ; but only *76declined giving the instructions asked, and instructed them, that if they believed the testimony, the prisoner was guilty of murder. Prisoner’s counsel excepted.

Yerdict—“guilty of murder.”

Judgment, and appeal to the Supreme Court.

Attorney General, for the State.

Miller, for defendant.

Nash, C. J.

Li his charge to the jury, by the presiding Judge, the law upon the homicide in question was correctly stated. If the prisoner had caught the deceased in the act of adultery with his wife, and had slain him on the spot, the crime would have been extenuated to manslaughter, the provocation being considered in law a legal one, as producing that brevis fv/ror, which, for the moment, unsettles reason. But if the adulterer is not slain on the spot, and sufficient time has elapsed for the passions to cool, the crime is not extenuated to manslaughter, but the slayer is guilty of murder. Such has been the law from the time of Lord Hale. See his Pleas of the Crown, page 486. Justice Poster, in his crown law, page 296, after speaking .of killing the adulterer on the spot, uses this language : “had he killed the adulterer deliberately on revmge after the fact, and sufficient cooling time, it had been undoubtedly murder.” Justice Blackstone, 4 vol. Com. 192, states the same principle, and it is affirmed by this Court in State v. John, 8 Ire. Rep. 330.

Here, the prisoner did not find the deceased in the act of adultery. The case states that he was in the habit of adulterous intercourse with the prisoner’s wife, and we are to understand that the prisoner knew or believed it. There is, then, nothing in law to extenuate the offence to manslaughter. The crime was committed deliberately, and from revenge. The prisoner, the deceased, the wife of the prisoner, his mother and sister, wore all at a neighbor’s house, which was divided into two rooms without any door betw'een them. The prisoner sat in one, the other parties in the other. Between the *77hours of ten and eleven o’clock, the party broke np to return to the prisoner’s house. As they passed the outer door of the room in which he sat, no notice was taken of him, except by the deceased; no invitation given him to accompany thorn. These were circumstances well calculated to rouse his passions, and particularly that of revenge, but they did not amount to a legal provocation. The prisoner armed himself with a deadly weapon, pursued them, and gave the deceased a blow upon the head, which felled him to the ground, and then with tire same instrument struck him two more mortal blows. This was murder; for, as Justice Foster remarks, “ let it be observed that every possible case of homicide upon the principle of revenge, is murder.”

We have looked carefully through the record, and find that it is correct.

Per Curiam.

Judgment affirmed.