#### STATE v. ELIAS NEVILLE.

A statement made by a witness in pais, contradicting that made on the trial5 and brought in for the purpose of impeaching the integrity of such witness1 cannot be treated as substantive evidence of the facts involved in the issue.

*424An erroneous remarle of the Judge upon the weight of evidence, that ought not to have been admitted at all, is not a ground for disturbing a verdict.

Where a judge virtually and substantially gives the instruction to the jury which a party is entitled to, it is not error for the Oourt to refuse, at another stage of the trial, to give the same instruction in a different form.

In a case of homicide, in order to entitle the accused to the benefit of the rule reducing a killing to manslaughter, on account of an assault upon his wife with intent to commit a rape, or for adultery, it must appear that he detected the act in its progress, and slew the wrongdoer on the spot; to slay one after such a wrong has transpired, upon subsequent information of the fact, is murder in law.

1't is not error in the Oourt to reject testimony which was only proper to establish an incidental matter where it was not offered or pressed on the trial for that purpose, but as affecting the issue directly.

This was an indictment for the mukdeR of one John Phillips, tried before Diok, J., at the last Spring Term of Halifax Superior Oourt.

Elizabeth Holt, the mother of the deceased by a former marriage, testified that the deceased made his home at her house; that he was from home on Sunday and Sunday night; that he returned about an hour by the sun; that her son Archie said something offensive to her and John slapped him for it; that Archie was sitting by the fire, crying, when the prisoner came to the house, having a gun; that he enquir-ed what Archie was crying about, and was told by the hoy, whereupon John said Archie should not run over his mother, to which the prisoner replied, “ if you strike him again I will kill yon, or I will shoot you”; that she told the prisoner John had not hurt Archie; that John said he hadnothurt Archie, and added that the prisoner should not run over him in his mother’s house; that she (witness) then went to the kitchen to get breakfast, leaving the prisoner in the house; that very shortly thereafter, she heard a gun fire, when she went to the house and found John shot in the left arm just above the elbow, and the prisoner walking off; that deceased bled from the wound very fast, and continued so to bleed until the evening of that day, when he died. She further stated that when John came home in the morning, he brought with him a jug of whiskey *425which he said belonged to the prisoner; that when the prisoner came to the house, he was swearing very much. She said the prisoner was her brother’s son.

Archie Holt testified that he was seventeen years old; that just before the prisoner came to his mother’s house, the deceased had slapped him, and that he (witness) was crying when the prisoner came, and the latter, on being informed what had taken place, cursed the deceased, and told him if he struck the boy again, he would kill him; that they quarrelled, and the prisoner went out of the house; that John stood in the door and said he could not be run over at home; that the deceased had his hands in his pantaloon’s pockets when the prisoner fired and shot him; that he had no knife or stick or weapon of any kind, and was not advancing, but standing in the door; that he, the witness, was sitting by the fire looking at the parties when the gun was discharged; that on the evening before the homicide, the witness, the deceased and the prisoner, were at the house of Thomas Neville, where the prisoner bought a j ug of spirits, and requested the deceased to carry it to his (prisoner’s) house,; that the deceased started off with the jug about an hour before the witness and prisoner left the same place; that when they arrived at the prisoner’s house, the deceased was there, and he and the deceased stayed all night there; that the deceased and prisoner drank together that night, and, about daylight, wont rabbit-hunting, the prisoner having his double barrelled gun with him; that the witness went home, and the deceased came home about an hour afterwards.

Elizabeth Holt, the daughter of the first witness, stated that she was the half sister of the deceased, and cousin of the prisoner; that she was fourteen years old; that she was at the kitchen when the prisoner, having his gun, came up ; he asked her if she had a drink for him, to which she replied that her brother had some in the house; that he went off a short distance into the cotton patch, which was near the house, and called his hounds; that witness went into the house where her mother, her brother Archie and the deceased were; that the *426prisoner, shortly afterwards, came to the door and enquired what Archie was crying abont, and on being told that John had slapped him, he went into the house and told the deceased if he slapped him again, he would hill him; that deceased replied he had not hurt him, to which the prisoner repeated, that if the deceased struck Archie again, he would kill him; to which the deceased said “kill me then”; that her mother went out about that time, and the prisoner sat down for a moment on the door steps, but then rose and went out; that the deceased walked to the door and said he should not run over him at his own house; that she started to go out of the door to the kitchen, but when she got to the door, she saw the prisoner with his gun raised, and his finger on the trigger; that she jumped behind the stairs, and the gun went oif instantly; that the deceased was standing with his back against the door-shutter which opened in the inside, and had his hands in his pockets; that the prisoner was some eight or ten steps from the door, and rather on the side of it. On cross examination, this witness was asked if she had not stated to Miss Margaret Porter, some eight or ten days after the homicide, that when the prisoner came up, he asked the deceased why he had treated him so badly, that the deceased asked him how, and the prisoner said, “trying to ravish my wife,” to which the deceased replied, “I will not allow you to run'over me,” and got up and advanced upon the prisoner with a drawn knife, saying he would cut his guts out, and that the prisoner gave back and shot him. To this interrogatory, the witness answered, denying it in’ the most positive manner.

Several persons were examined to prove contradictory statements made by the several witnesses, Mrs. ITolt and her daughter and sou, but the following is only deemed necessary to be stated:

Mcwgaret Porter stated that her mother is a sister to the prisoner; that the witness, and Elizabeth ITolt, the younger, about eight or ten days after the homicide, were sitting up with the corpse of a miss Neville, and that Elizabeth told her “Elias, (the prisoner) came to her mother’s house, and *427asked John how he came to treat his wife so; John-asked him how he had treated her.” Elias said, “ you attempted to ravish her.” John said, “ you cannot run over me here, if you can at your own house, and advanced towards the prisoner with a knife in his hand, and said he would cut his guts out; that the prisoner hacked and shot him.”

William JVeville, a small boy, who said he was fourteen years old, a son of the prisoner, was next examined. He stated that the deceased came to his father’s house with a jug of liquor, and that about an hour afterwards, his father came home, Archie Holt with him; that John and Archie stayed all night, and in the morning, John and his father went rabbit-hunting; that his mother sent him to look for his father as she feared he might he sick on the road side ; that he met him coming home about two hours by the sun; that witness told his father something, and he turned and went towards the place where the killing took place. The prisoner’s counsel stated the purport of this communication, which was, “that on the evening before, when the deceased came to the house of the prisoner, he saw him trying to ravish prisoner’s wife; that he had her on the bed with her clothes up,” and offered to prove by the witness that this communication was the truth. The Attorney General objected to the evidence and it was excluded.— Prisoner’s counsel excepted.

There was testimony as to the character of Mrs. Holt and her children, and of Margaret Porter, all which was favorable.

The counsel for the prisoner requested the Court to instruct the jury as follows:

1st. That the burden of proof is on the State, to show, beyond a reasonable doubt, that the homicide was committed with malice, in order to make it murder; and every fact material for that purpose, must be established by testimony, of whose truth there is not a rational doubt.

2nd. If the jury are not satisfied beyond a reasonable doubt, of the truth of the statements made by the witnesses *428for the State, as to the manner of the homicide, they ought not to convict the prisoner of murder.

3rd. The jury in their investigation, have a right to look to all the circumstances of the case, and to make such inferences as are probable from these circumstances.

4th. The j ury have a right to look to the account of the affair given by the prisoner in his defense, and to compare the testimony with that account, and in this way to ascertain the probable truth or falsehood.

5th. That a jury when they come to sit iu judgment upon the integrity of a witness, have a right to look, and ought to look to the relation in which the witness stands to the cause, and that it is a settled rule in law, in this State, that when near relations depose for near relations, their testimony is to be received with many grains of allowance; that when the witness is equally related to both parties, there is no inference in law as to the bias of the witness for either party in the cause.

The Court charged the jury, that it was the duty of the State to fully satisfy their minds, beyond a reasonable doubt, of the prisoner’s guilt, before they could properly convict him of murder, and if they had a x’ational doubt, on any point, necessary to his conviction, the prisoner was entitled to the benefit of their doubts, and it would be their duty to acquit him of murder ; that in the present case, the defense assumed that the prisoner killed the deceased, and the question for their consideration was, whether this was done upon legal ¡xrovocation ; that it was their duty to take into consideration all the evidence, both for the State and for the prisoner, and also the arguments of counsel on both sides. It was likewise their duty to pass on the credibility of each witness for the State, and for the defendant, and then to decide whether this was a case of murder or manslaughter.

The Court then remarked, that the prisoner’s counsel had asked for special instructions, which he would then proceed to give them. ,

His Honor then read the first instruction prayed, and in*429formed the jury, that the Court adopted this-proposition as a part of his charge; with this modification: that it was not' always true, that the State must prove express malice before a jury would be authorised to convict of murder; that there were cases in which the law implied the malice; as where the slaying was with a deadly weapon without any legal provocation.

The Court proceeded then to read over the second, third and fifth instructions asked for by the prisoner’s counsel, and informed them that the positions were correct, and he adopted them as a part of his charge to them.

As to the fourth instruction, his Honor refused to give it, upon the ground, there was no evidence that the prisoner ever made any statement as to how the killing took place. Prisoner’s counsel excepted.

The Court further charged the jury, that if the evidence of Archie and Elizabeth Holt fully satisfied their minds, beyond a reasonable doubt, that the deceased was standing still in the door of his mother’s house, with his hands in his pockets, and had no knife, or other weapon at the time he was shot by the prisoner, it was a case of murder.

The Court further told the jury, that they were to pass upon the credit of the two witnesses, Archie and Elizabeth Holt, and if they doubted the integrity of the witnesses, or the accuracy of their statements as to how the killing took place, the prisoner was entitled to the benefit of that doubt, and they should not convict him of murder.

The Court further stated to the jury, that the prisoner’s counsel contended that the killing took place under legal pro-, vocation, and was therefore reduced from murder to manslaughter ; that the State’s witness, Elizabeth Holt, gave a true account of the transaction to the witness, Margaret Porter ; that it was their province to pass upon the credibility and accuracy of all the witnesses that had been examined; that they would, in the first place, determine whether Elizabeth Holt ever made such a statement to Margaret Porter ; and if they should find that she did, then, whether under all the *430evidence, they thought it gave a true account of the transaction ; and if they were of opinion that it did, then they should acquit the the prisoner of the murder, and find him guilty of manslaughter only. The Court remarked, however, in relation to the evidence of what a person said on a particular occasion, it was held by the books on evidence, to be the weakest kind of evidence, because the hearer might misunderstand the speaker, or might not have capacity to comprehend fully, or state truly, what was said. The defendant’s counsel excepted to this commentary.

The jury found the defendant guilty of murder, and upon judgment being pronounced, he appealed.

Attorney General, for the State.

Miller, Gonigland and JB. F. Moore, for defendant.

RuffiN, J.

In the instructions given to the jury, the Court is unable to discover any error to the prejudice of the prisoner. It is manifest upon the evidence, the course taken by the defense, and the instructions prayed, that the fact of the homicide was not a point in controversy, but that it was as to the manner and circumstances attending it. For the prisoner, it was contended that the three witnesses, who represented themselves to have been present at the fact, had not, in their testimony truly stated the transaction, and, particularly that Elizabeth Holt had not; but that, on the contrary, the truth was as she had related the matter to Margaret Porter, and, therefore, it was but a case of manslaughter. It is proper to observe here, that the position is entirely untenable, although his Honor, inadvertently, no doubt, fell into it. For the only legitimate effect of the testimony of Porter, was to discredit that of Elizabeth Holt, and, if true, it did not constitute substantive evidence of the circumstances attending the killing ; since, at best, it was but the narrative of Elizabeth Holt, not under oath, and could not legally establish any thing affirmatively. It was in reference to that point, in his instructions, his Honor made the remark, that such evidence — of what a *431person had said, was considered the weakest hind of evidence; and, therefore, whether the remark be correct or incorrect, it cannot affect the question now before the Court.

The shape, then, which the defense took, imposed the bur-ben on the prisoner of producing proof of such facts and circumstances as would mitigate the offense ; otherwise the inference of the law is, that it is murder. There was no error, therefore, in assuming the killing to be established, and in so saying to the jury. Still it was open to the prisoner to urge before the jury, that there must have been other circumstances attending the homicide, which the witnesses for the State had not disclosed, but dishonestly kept back, and which, therefore, if disclosed, it might be inferred, would give a different complexion to the killing; such as the kindred, and friendly relations between the parties up to the morning of the fatal affray, and the improbability of the prisoner’s being prompted to such a deed by the trivial circumstances that the deceased had given his younger brother a slight slap, for irreverent language to their mother, an aunt of the prisoner; and, in addition, and above all, that the most material witness for the State, as to the overt act, had stated to another person other facts attending the killing, which, if true, showed it to be an immediate and sufficient provocation to reduce the offense to manslaughter. All these considerations were, doubtless, urged before the jury, and seem to have been fairly left to them by the Court. In truth, the case turned upon the veracity and accuracy of the witnesses on the part of the prosecution ; and the verdict can only be sustained by the credence which the jury gave to them. The jury having found the prisoner guilty on their evidence, there is no power in this Court to disturb the verdict.

With respect to the instruction prayed, that the jury had a right to look to the account of the affair given by the prisoner in his defense, and compare the testimony with it, and in that way probably ascertain the truth, there seems to have been some misapprehension both on the part of the Court and the counsel for the prisoner. In England, formerly, the accused, *432not being entitled to counsel, conducted bis own defense, and, in making it, as almost every unprofessional person would,he did not confine himself to the evidence at the trial, but, naturally gave his own version of the transaction. That was not evidence, in the proper sense of the term, of the facts stated by the accused, but still the statement might be, and often was, considered by the jury as suggestions affecting the credit of the witnesses, the weight to be given to the facts deposed to by them, the probability of the opposing tales and the proper inferences from the proofs. Ho such practice is known among us : though, if one choose to conduct his own defense, juries would probably pay the same regard to such suggestions and arguments as they formerly did. In place of such a mode of proceeding, defense by counsel universally prevails here, and the argument and suggestions by the counsel, both as to the matter of law and fact are heard by the jury, and always submitted by the Court to their consideration in forming their conclusions upon the subject in controversy. It was done in express terms in this case, and, therefore, while his Honor declined giving the fourth instructions prayed, on the ground, that the prisoner had not given any such account of the affair as was supposed in the instruction, he had, in effect and substance, given it before. For, after laying before the jury the position of the prisoner’s counsel, that the killing took place under such circumstances of legal provocation as extenuated it from murder to manslaughter, the Judge told them it was their duty to take into consideration all the evidence, and also the arguments of counsel, both for the State and the prisoner. There was, therefore, no error in that part of the case.

The only remaining question is upon the rejection of the evidence of ’WilliamUeville, the son of the prisoner. The prisoner offered to prove by him, that on the evening preceding the homicide, the deceased came to the prisoner’s house, and had the prisoner’s wife on the bed with her clothing up, and attempted to ravish her. To what end was the evidence offered ?— Obviously, to establish a provocation for the killing — the idea *433wliicli pervaded the whole trial. Eor that purpose, it was not proper evidence, and ought to have been rejected. If admitted and believed, it could not have changed the character of the offense, but would, in the view of the law, aggravate it. As, upon an analogous question, somewhat alrin to this, namely, a husband’s killing an adulterer with his wife, the Court would hold that a husband finding a man violating or attempting to violate his wife, and killing him on the spot, might plead tlvAt furor brevis which so atrocious a wrong, both to the wife and the husband would naturally inspire; nay, if needful to prevent the accomplishment of the purpose, we think that he would be justified in slaying him ; as the woman herself would be. But a due regard for human life, and the necessity of protecting it from unbridled wrath and vengeance, and a just respect for the peace of society, and the supremacy of the law, which constitute the well being of every community, restrain any further relaxation of the rule which forbids one man to take the life of another. With respect to the case of adultery, the law is found in the most ancient archives of the common law, and has been brought down to us in the same plain and precise terms by the ablest Judges, and the most eminent writers on the criminal law; and a court at this day has no more authority to interpolate new qualifications or exceptions into it, than power to make a statute. But the rule of the common law on this head, stands not alone on its authority. It is commended, as well, by its wisdom. Homicide is extenuated to manslaughter, not by the fact that it was perpetrated in a fury of high passion, but by such fury’s being excited by a present provocation, which the law deems sufficient for the time, to deprive men in general of that power of reasoning and reflection, which ought to lead them to appeal for redress to the law, and instead thereof, prompts them to take it into their own hands. The wrong is thus infallibly known, and the wrongdoer is thus made instantly to expiate it with his blood. But where a husband only hears of the adultery of his wife, no matter how well authenticated the information may be, or how much credence he may give to the informer, *434and kills either the wife or her paramour, he does it not upon present provocation, but for a past wrong — a grievous one indeed ! but it is evident he kills for revenge. Let it be considered how it would be if the law were otherwise. How remote or recent must the offense be ? How long or how far may the husband pursue the offender? If it happen that he be the deluded victim of an lago, and after all, that he has a chaste wife, how is it to be then ? These enquiries suggest the impossibility of acting on any rule but that of the common law, without danger of imbruing men’s hands in innocent blood, and the certainty of encouraging proud — heady men to slay others for vengeance, instead of bringing them to trial and punishment by the law. It is obvious that these observations apply with equal force to an alleged rape, or an attempt to commit a rape on the wife at a past time; and this case furnishes a forcible illustration of the extreme hazard of extenuating the offense of taking the life of a fellow man, upon information. The wife of the prisoner made no complaint to him on his arrival at home, that the deceased had assaulted her or insulted her; but, on the contrary, the deceased was entertained by them both that night in friendship, and the prisoner and the deceased hunted together next morning by themselves— thus rende.iing the imputed act extremely improbable. Yet, it is assumed by the prisoner, that upon hearing from his son, who was just of an age to be a competent witness, that the deceased had misbehaved towards his mother, he might, without regard to the improbability of the accusation as known to himself, and without making any enquiry of his wife, proceed to the residence of the deceased and shoot him down, and that he would not be guilty of murder. Such a position is altogether inadmissible. The Court is therefore of opinion, that the evidence was not admissible for the purpose for which it was offered ?

It was further argued that it ought to have been received for the purpose of sustaining the credit of Margaret Porter, and impeaching that of Elizabeth Holt. Although it did not relate to the matter on which the two witnesses were at points, *435that is the narrative by Ilolt of the circumstances attending the killing, yet it must be admitted to have at least a remote relevancy to the credit of those persons, inasmuch as the probability that Elizabeth Holt made the statement to Porter deposed to by the latter, would be increased by showing that in point of fact, those circumstances really existed, of which the prisoner complained to the deceased during the altercation according to the alleged narrative of Holt to Porter.— But the Court is of opinion, nevertheless, that the prisoner is not entitled to a venwe de novo on that grounds The evidence was not offered for that purpose. At least-, nothing of the kind is to be collected from the bill of exceptions-. Counsel are bound to state the evidence they propose to offer, and its purpose; else it is impossible that the Court, a stranger to the case, can see its relevancy, or properly restrict counsel in their remarks on it to influence the jury as to its effect; and when evidence is offered for the general purpose of affecting the degree of a homicide which is irrelevant to that point, and is for that reason rejected, there is no error in rejecting it generally, although it may be competent for a more restricted purpose, unless the party ask its reception for that purpose, and that only. For in no other way can a court know that the party desires it, or would be willing to rely on it, or that it should be given for that particular purpose. For example, in the case before us, it might well be doubted whether the prisoner would gain any advantage from the evidence, merely as affecting the credit of the two witnesses. While on the other hand, if believed, it might sustain, in the manner already mentioned, the credit of Porter in deposing to the declarations of Elizabeth Holt, yet, on the other, taken in connection with the age of the son, and the silence of the wife as to the alleged wrong to her, and also the silence of the witness himself to his father on his getting home, and during the night, and the friendly entertainment of the deceased by all the parties, it might have laid the ground of a serious suspicion that the whole story was the fabrication of afterthought-, and that those two young persons were made the instruments for unjustly de*436stroying the credit and character of Elizabeth Holt. Of course, the Court will not be understood as making that imputation. It is alluded to for the purpose, only, of showing that it was not for the Court, at the trial, to receive the evidence for a restricted purpose, when it was not offered for such purpose, and when it is plain that the prisoner might rather give up the evidence restricted to that purpose, than risk its recoil. To allow him the benefit of it upon a motion for a venire de novo, would be but little short of inviting counsel, instead of getting a fair trial for the accused, to lay traps for the presiding Judge, and beguile him into them.

There is no error, and this must be certified to the Superior Court of Halifax.

Pee Oueiam, Judgment affirmed.