Price v. State

Citations

• 18 Tex. Ct. App. 474
• 1885 Tex. Crim. App. LEXIS 134

Syllabus

<p>1. Justifiable Homicide—Statute Construed.— Article 567 of the Penal Code reads as follows: “Homicide is justifiable when committed by the husband upon the person of any one taken in the act of adultery with the wife, provided the killing take place before the parties to the act of adultery have separated.” Held, that a proper construction of the term “ taken in the act of adultery,” as used in the statute, does not mean that, in order to avail himself of the protection of the statute, and justify his homicidal act, the husband should be an actual eye-witness to the physical act of coition between his wife and her paramour, but it will be sufficient if he sees the paramour in bed with his wife, or leaving it, or in such a position as indicates with reasonable certainty to a rational mind that they had just then committed the adulterous act, or were then about to commit it. But no knowledge otherwise acquired by the husband, however positive of the adulterous intercourse between his wife and her paramour, will bring the homicide, if he slays the latter, within the purview of the statute. See the opinion in extenso on the question, and note the facts of this case in illustration.</p> <p>2. Same—Adultery.— Circumstantial Evidence is as competent as direct evidence to establish the fact of adultery when such fact is an issue on the trial, and, though a mistake may possibly exist as to the fact, yet “if a person laboring under a mistake as to a particular fact shall do an act which would otherwise be criminal, he is guilty of no offense, provided it be such mistake as does not arise from want of proper care on his part.” In other words, a person may always act upon reasonable appearances, and his guilt depends upon the reasonableness of the appearances, judged of from his own standpoint.</p> <p>3. Same—Charge of the Court.—The gist of the issue under the evidence in this case was whether or not the facts tended to show that the parties were “ taken in the act of adult