Lee v. Woolsey , 19 Johns. 319 ( 1822 )

Spencer, Ch. J.

delivered "the opinion of the Court. The evidence offered and overruled, could neither be ad- | milted in mitigation of damages, nor as explanatory of the \ transaction. The only view in which the evidence could be admissible, would be for the purpose of showing, that , the defendant, under the influence of excited and irritated / passions, was impelled, by a sense of the injury done to him by the plaintiff, thus to redress himself. The law, in tenderness to" human frailties, distinguishes between an act done deliberately, and an act proceeding from sudden heat.

If, upon a sudden quarrel, two persons fight, and the one kills the other, this is manslaughter only. So, if a man be greatly provoked, as by pulling his nose, or other great indignity, and immediately kills the aggressor, though this is not excusable, the offence is a mitigated homicide; for there is no previous malice. But, in every case of homicide upon provocation, if there be a sufficient time, intervening the affront and the killing, for passion to. subside, and reason to interpose, the offence becomes murder. In analogy to this principle, evidence in civil actions for assaults and batteries, in mitigation of damages, has been admitted, to show a provocation on the part of the party complaining of the injury. But, the provocation must be so recent, as to induce a fair presumption, that the violence done was committed during the continuance of the feelings and passions excited by it. On any other principle, the law would countenance the most revengeful feelings ; and indirectly, also, an appeal by persons conceiving themselves injured, to force and violence. The case of Avery v. Ray, (1 Mass. Rep. 12.) was decided on these principles. All the Judges were opposed to the admission of evidence of a remote provocation, and confined the inquiry to an immediate antecedent one. If the defendant had been permitted to show what he offered in mitigation of damages, it would follow, that the plaintiff ought to have been allowed to show the truth of the statement contained in the letter to the Secretary of the Navy ; and so, also, of the other charge ; and, thus, an inquiry wholly different from the one on the record, would be gone into, diverting and distracting the attention of the jury. It appears to me, neither to comport with sound policy nor law, to allow an inquiry into antecedent facts, in such a case as this, unless they are fairly to be considered as part of one and the same transaction. A contrary course would greatly encourage breaches of the peace, personal rencounters, and every species of brutal force, and would tend to uncivilize the community.

The case of Hotchkiss v. Lothrop, (1 Johns. Rep. 286.) to which the defendant’s counsel referred, has no bearing on this question» The libel published by the plaintiff, was admitted in evidence as explanatory of the subject matter of the defendant’s libel, and to show the occasion and intent of the publication.

Motion denied.