same is true if he took an unfair advantage at the outset, as by secretly arming himself, in anticipation of the conflict.340 But in cases of homicide in mutual combat, it makes no difference that the accused struck the first blow, if the occasion was unpremeditated, and at the commencement of the contest the parties were on equal terms.341 Nor does it make any difference that dangerous weapons were used from the beginning, if the combat was unpremeditated, and both parties were equally armed and ready, or that, in the

101; Ex parte Nettles, 58 Ala. 268; Tate v. State, 46 Ga. 148. See, also, State v. Howell, 9 Ired. (N. C.) 485; State v. Smith, 24 W. Va. 814; State v. Matthews, 80 N. C. 417; State v. Underwood, 57 Mo. 40.

3401 East, P. C. 242, 243; Fost. C. L. 295; Whiteley's Case, 1 Lewin, C. C. 173; State v. Scott, 4 Ired. (N. C.) 409, 42 Am. Dec. 148; State v. McCants, 1 Speers (S. C.) 384; Slaughter v. Com., 11 Leigh (Va.) 681; State v. Hildreth, 9 Ired. (N. C.) 429, 51 Am. Dec. 364; Ex parte Nettles, 58 Ala. 268.

341 State v. McCants, 1 Speers (S. C.) 384.

Thus, in State v. Hill, 4 Dev. & B. (N. C.) 491, 34 Am. Dec. 396, where the accused made a simple assault upon the deceased, and the deceased, to avenge the blow, attacked the accused with a knife, and severely wounded him, and the

course of the combat, the accused used against an unarmed adversary a deadly weapon, if it was hastily snatched in the heat of passion, and not clearly provided for the purpose.

342

Previous Encounters and Threats.-When a man kills another in mutual combat, it is not to be presumed that he acted with malice merely because he was actuated by malice in a former encounter with the deceased, and because he had quarreled with the deceased, and made threats against him. "Certainly, where two persons have formerly fought on malice, and are apparently reconciled, and fight again on a fresh quarrel, it shall not be intended that they were moved by the old grudge, unless it so appear from the circumstances of the affair." 343

accused instantly, and in a transport of passion thus excited, and without previous malice, killed the deceased, it was held a case of manslaughter. See, also, State v. Levigne, 17 Nev. 435.

342 State v. McCants, 1 Speers (S. C.) 384; State v. Levigne, 17 Nev. 435.

3431 Hawk. P. C. c. 13, § 30; Copeland v. State, 7 Humph. (Tenn.) 479; State v. Hill, 4 Dev. & B. (N. C.) 491, 34 Am. Dec. 396; State v. Hildreth, 9 Ired. (N. C.) 429, 51 Am. Dec. 364.

Duel. A homicide committed in a delib

erate duel, however fairly the combat may be conducted, is not manslaughter, but murder. "The punctilios of false honor the law regards as furnishing no excuse for homicide. He who deliberately seeketh the blood of another, in compliance with such punctilios, acts in open defiance of the laws of God and of the state, and with that wicked purpose which is termed 'malice aforethought.' "344

(e) Sight or Knowledge of Wife's Adultery. It has long been settled that if a man sees his wife in the act of adultery, this is sufficient provocation to reduce to manslaughter an instant killing either of the wife or of her paramour.345 According to the old authorities the husband must see the act. If he kills on suspicion, however well founded, or on information, he is guilty of murder. And there are late cases also holding this

344 State v. Hill, Dev. & B. (N. C.) 491, 34 Am. Dec. 396.

345 1 Hale, P. C. 486; Fost. C. L. 296; 1 East, P. C. 234, 251; 4 Bl. Comm. 192; Reg. v. Rothwell, 12 Cox, C. C. 145, Beale's Cas. 481; Hooks v. State, 99 Ala. 166; and cases cited in the notes following.

doctrine.346 The distinction, however, is not reasonable. For example, it is not reasonable to hold a husband guilty of murder, instead of manslaughter, in killing his wife's paramour, if he did so under the influence of passion immediately after their separation, and with conclusive evidence of their guilt. And there are some well-considered cases holding that it is a question for the jury in such cases whether the provocation was sufficient.347

346 Reg. v. Fisher, 8 Car. & P. 182; Reg. v. Kelly, 2 Car. & K. 814; State v. John, 8 Ired. (N. C.) 330, 49 Am. Dec. 396; State v. Samuel, 3 Jones (N. C.) 74, 64 Am. Dec. 596; McWhirt's Case, 3 Grat. (Va.) 594, 46 Am. Dec. 196. See, also, Shufflin v. People, 62 N. Y. 229; Biggs v. State, 29 Ga. 723; Sawyer v. State, 35 Ind. 83; State v. Avery, 64 N. C. 608; State v. Harman, 78 N. C. 519; People v. Horton, 4 Mich. 69.

In State v. Samuel, supra, it was held that the fact that the husband knows that the other man has previously been in the habit of adulterous intercourse with his wife, and that he believes, when he kills him. that he is then accompanying her for that purpose, will not reduce the homicide to manslaughter.

347 Maher v. People, 10 Mich. 212, 81 Am. Dec. 781, Beale's Cas. 482; Reg. v. Rothwell, 12 Cox, C.

Malice. Even the sight of his wife's adultery does not reduce a homicide by the husband to manslaughter if he committed the deed with malice, and not under the influence of indignation and passion caused by the sight.348

(f) Adultery with Sister.-It was held in Pennsylvania that where a man detects another in bed with his sister under circumstances showing clearly that she has been committing adultery, and kills the man, there is no such provocation as will reduce the homicide to manslaughter.349 According to the better opinion, however, the question in such a case would be for the jury.350

(g) Insulting Words and Gestures.-It is well settled, as a general rule, that no words of reproach or contemptuous gestures, however insulting, will constitute sufficient provocation to reduce a homicide to manslaughter 351 But this rule does not apply where,

C. 145, Beale's Cas. 481; Hooks v. State, 99 Ala. 166.

348 See the cases above cited. And see ante, § 259.

349 Lynch v. Com., 77 Pa. St. 205.

350 Post, § 260 i.

351 1 Hale, P. C. 456; Fost. C. L. 290; Lord More