#### McWilliams *v.*The State.

*Murder.*

(Decided November 28th, 1912.

60 South. 101.)

*Homicide; Evidence; Admissibility.*— Where the homicide was not committed in self-defense, it was not admissible to introduce evidence of improper relations between decedent and the wife of defendant, before the homicide, where such relations were not so recently sustained as to justify any sudden passion and thus reduce the offense to manslaughter.

(Mayfield, Sayre and deGraffenriecl, JJ., dissent.)

Appeal from Monroe Circuit Court.

Heard before Hon. John T. Lackland.

Sidney McWilliams was convicted of murder and he : appeals.

Affirmed.

Barnett & Bugg, for appellant. No brief reached the Reporter.

*69R. C. Brickele, Attorney General, and W. L. Martin, Assistant Attorney General for tlie State.

ANDERSON, J.

The trial court declined to permit tlie defendant to show improper relations between the deceased and the said defendant’s wife prior to the homicide. Counsel rely on the case of *Gafford v. State,*122 Ala. 5425 South. 10, as an authority to the effect that the trial court ivas in error. The court did there hold that proof of an adulterous relation between the deceased and defendant’s sister ivas permissible; but, in defining the rule in said case, we think it justifies the exclusion of such evidence in the case at bar. Says the court: “If the question of self-defense were out of the case, it would be quite clear that’all testimony of this character would be inadmissible for the purpose of justifying the murder, and would be equally unavailing to reduce the killing from murder to manslaughter, unless the circumstances of such provocation were of such a character as were reasonably calculated to provoke sudden passion and resentment, and the homicide ivas traceable solely to the influence of passion thus engendered. For example, if the defendant had discovered deceased and his sister in the act of adultery, and, under the influence of sudden passion thus aroused, had slain him, then the killing would not have been willful, malicious, deliberate, and premeditated, or murder in the first degree, but murder in the second degree, or, according to circumstances, manslaughter in the first degree.”

The defendant ivas not in a position to invoke self-defense, as the undisputed evidence shows that he was not entirely free from fault in provoking the difficulty. *—Scroggins v. State,*120 Ala. 369, 25 South. 180. There was evidence that the deceased had threatened him, Avliich had been communicated to him, and notAvith*70standing the deceased addressed liim in friendly terms when returning down the road, and the defendant Avell knoAving of the ill avüI between them, or toAvards him accosted the deceased by wanting to knoAV “what he Avas doing with his AAÚfe on the mule.” Nor did the evidence rejected shoAV such a recent act of adultery as to bring it Avithin the rule as laid down in the second proposition discussed in the above quotation.

There Avas no error in refusing to alloAV counsel to argue upon facts properly excluded from the evidence, nor in refusing the defendant’s requested charges. The judgment of the circuit court is affirmed.

Affirmed.

Dowdell, O. J., and McClellan and Somerville, JJ., concur. Mayfield, Sayre, and de Graffenried, JJ., dissent.