Scottish High Court of Justiciary Decisons

LORD PATRICK .—… Now, as to the law. It is quite plain that a person who inflicts a deadly wound upon another so that the other dies is in the normal case guilty of murder, and, if there were no other facts than these in this case, your duty would be the plain one of returning a verdict of guilty of murder. But the law admits certain circumstances, if they are proved to the satisfaction of the jury, as habile to reduce the facts of a case from the crime of murder to the still serious, but much less serious, crime of culpable homicide. One of the familiar elements which, if proved, will reduce a crime from that of murder to that of culpable homicide is where a man is struck a violent blow and in the heat of the moment then and there strikes back and the other man dies. That element a jury may consider habile to reduce a crime which would otherwise be murder to that of culpable homicide. Now, the law both in Scotland and in England—though probably you need not concern yourselves with the law of England—has for several centuries recognised that, if a man catches his wife and her paramour in the act of adultery and in the heat of passionate indignation then and there kills them, his crime is a very serious one, but it is not murder, it is culpable homicide. The same is the law where the man does not actually catch his wife and the paramour in the act of adultery, but where he discovers that they have committed adultery; the discovery is exactly the same thing as if he had caught them in the act. If, then, a wife and her paramour were to confess to the husband—who did not previously know that they had committed adultery—that they had committed adultery, and if he then and there killed them in the heat of passionate

indignation, the crime would not be murder, it would be the serious crime of culpable homicide. The exception to that law is this: in the case of a man who is struck a violent blow, he must not wait a while and ponder over it and then go and kill his assailant, or, if he does, he is guilty of murder; similarly a man must not discover that his wife has committed adultery and go away and ponder over the matter, while the heat of his blood cools, and then come back and revenge himself by killing his wife; if he does, that is murder. So the matter for you comes down to small compass, though grave in its consequences. If you were to find upon the facts that the prisoner had long known that his wife and Headland had committed adultery, and that after an interval of reflection he came north to Scotland on the 18th of January to revenge himself, then it would be your duty to return a verdict of murder: but if your view of the facts should be that he came north on the 18th suspecting, it may be, that there was something wrong, suspecting that his wife perhaps had committed adultery, but not sure, and if you thought that, when he got to Scotland and interviewed the two of them, they then confessed that they had been guilty of adultery so that for the first time he knew it, and if you thought that, when he did make that discovery, he then and there killed them in the heat of sudden and overwhelming indignation, it is open to you to return a verdict of guilty of culpable homicide, not of murder. In making up your minds as to what the facts really mean, observe this, that, if you have any reasonable doubt as to whether the accused killed from revenge or killed from sudden indignation and in the heat of the moment, having newly just discovered that his wife had committed adultery, if you have any reasonable doubt, then the accused is entitled to the benefit of that doubt, and your verdict would properly be one of guilty of culpable homicide. … So the question is simply this: Are you satisfied that the prisoner killed those two people not in the heat of the moment but after an interval when his blood had cooled—killed them from motives of revenge? Or are you satisfied that he learned for the first time between 12 and 1 on the Saturday that those two had been unfaithful to him and that they were still lying to him about their infidelity, and that he then and there in the heat of the moment shot them and killed them. If you think the latter is the truth of the matter, then it is open to you to return a verdict of culpable homicide; if you have any reasonable doubt about the matter, your verdict should be one of culpable homicide; only if you are satisfied that it has been proved that he deliberately shot these two while he was cool and calm, and shot them from motives of revenge, should you return a verdict of guilty of murder. …