a woman constitutes such reasonable provocation as to reduce the grade of a homicide from murder to manslaughter, we do not agree. Reasonable or adequate provocation is such as would naturally and instantly produce in the mind of a person ordinarily constituted the highest degree of exasperation, rage, anger, sudden resentment, or terror, rendering the mind incapable of cool reflection, and thus negativing the inference of malice drawn from the fact of homicide. A technical assault, if of a trivial nature, will not reduce the grade, where the retaliation is outrageous in its nature, and beyond all proportion to the provocation. An assault need not, however, be so violent as to put the defendant in imminent danger of death; nor of such grievous bodily injury as might reasonably cause death." There are two English cases of interest in this connection; one, tending to support the principal case; the other, opposed to it. In one case," the prisoner was indicted for the murder of his wife, who had returned home and received forgiveness after having lived with another man in adultery. Shortly after her return she violently abused her husband, taunted him with her preference for the other man, who had died, and becoming very violent, finally broke away from two other women who had been holding her, and spat at her husband's face-the evidence does not show whether she actually spat upon him-repeating with much foul language, her expressions about the other man. Thereupon the prisoner stood up and gave his wife a mortal wound in the neck with a sharp-pointed pocket-knife. The court left the question whether the words spoken, and the other circumstances, aggravated the provocation given by the assault, so as to make it a serious assault and reduce the crime to manslaughter, to the jury, which returned a verdict of manslaughter. It is doubtful, however, whether the question would have been left to the jury had 2 Judge v. State, 58 Ala., 406; Holmes v. State, 88 Ala., 26; People v. Bruggy, 93 Cal., 476; Swanner v. State, 58 S. W. (Tex.), 72; Reg. v. Welsh, 11 Cox C. C., 336. 3 Stewart v. White, 78 Ala., 436; State v. Emory, 58 Atl. (Del.), 1036; State v. Anderson, 4 Nev., 265; State v. Barfield, 30 N. C., 344; State v. Ferguson, 2 Hill (S. C.), 619; Honesty v. Com., 81 Va., 283; Rex. v. Lynch, 5 C. & P., 324. 4 Williams v. State, 107 Ga., 721; English v. State, 95 Ga., 123; Cook v. Com., 4 Ky. L. R., 31; State v. Sizemore, 52 N. C., 206. 5 Reg. v. Smith, 4 F. & F., 1066. it not been for the vile language accompanying the technical assault. At best, the case is an extreme one. In the other case," upon provoking words being used by a soldier to a woman, she gave him a box on the ear, and the soldier immediately gave her a blow with the pommel of his sword on the breast, and then ran after her and stabbed her in the back. This was at first deemed murder; but it afterwards appearing that the blow given to the soldier was with an iron patten, and that it drew a great deal of blood, the offense was held to have been manslaughter only. This case cannot be said to support the Connecticut court, for the crime was deemed murder until it appeared that the woman had seriously wounded the soldier by means of a weapon. Even in its later aspect, the correctness of the holding has been doubted by an eminent American jurist: "If a man should kill a woman or a child for a slight blow, the provocation would be no justification; and I very much question whether any blow inflicted by a wife on her husband would bring the killing of her below murder. Under this view of the law I have always doubted Stedman's case. *** Where a blow is cruel or unmanly, the provocation will not excuse it." To determine the sufficiency of the provocation to mitigate the killing from murder to manslaughter, the instrument or weapon with which the homicide was effected must be taken into consideration; for if it was effected with a deadly weapon, the provocation must be great indeed to lower the grade of the crime from murder; the instrument employed must bear a reasonable proportion to the provocation to reduce the offense to manslaughter. It will be observed that in the first case above referred to, the crime was committed with a pocket knife; in the second, with a sword. Both were instruments ordinarily in the hands of the defendants and their use as weapons was devised in sudden passion. But in the case under discussion, the killing was done with a revolver carried by the accused; and a revolver is not carried by the ordinary man under ordinary circumstances. This alone is sufficient to distinguish it and to require evidence of great provocation in order to reduce the grade of the crime. 6 Stedman's Case, Fost., 292. 7 Chief Justice Gibson in Com. v. Mosler, 4 Pa. St., 264, 268; Wharton on Criminal Law, §971; see also State v. Kloss, 117 Mo., 591; State v. Ferguson, supra. 8 State v. Shippey, 10 Minn., 223, 230; State v. Ferguson, supra; Rex v. Thomas, 7 C. & P., 817; May on Criminal Law, §227. There is, however, further ground for disagreeing with the Buonomo, in his confession, stated that he This in itself refutes any theory of actual opinion of the court. We are of the opinion, therefore, that the reversal, in so far as it stands upon the ground that there was evidence of reasonable provocation, was erroneous. While the capacity of the ordinary man to withstand provocation is the criterion where there was in fact provocation, yet where the accused was not actually provoked, the fact that an ordinary man might have been provoked to do the same act is of no consequence. BREAKING AS AN ELEMENT IN BURGLARY. Burglary at common law is the breaking and entering the dwelling house of another in the night-time with intent to commit some felony therein, whether the intent be executed or not.1 By statute it is practically universal now to make a breaking and entering into any building, boat, or car a crime of similar gravity to common law burglary. In some of the states statutory enactments defining burglary have eliminated the breaking as a necessary element of the crime,2 other states have by statute adopted the common law definition of the crime to the extent of making the breaking an essential part. In these latter states there is the same necessity which arises under the common law of determining what acts are necessary to constitute a breaking. It has been held apparently universally that an entry through an open door, window, or other aperture is not burglary.* 9 Judge v. State, supra; State v. Walker, 50 La. Ann., 420; State v. Hoyt, 13 Minn., 132; Gardner v. State, 40 Tex. Cr. R., 19; Reg. v. Welsh, supra... 11 Hale P. C., 358, 559; Hawk. P. C., c. 38; Martin v. State, 1 Tex. App., 525; Clarke v. Com., 25 Gratt. (Va.), 908. 2 Cal. Penal Code, sec. 459; Rev. Laws of Nev., sec. 6634; N. C. Statutes, Rev. of 1905, sec. 3332. 8 Conn. Gen. Stat., secs. 1194, 1195, 1196; Vt. Pub. Stat., sec. 5751; Ill. Rev. Stat., 756, sec. 36. Miller v. State, 77 Ala., 41; McGrath v. State, 25 Nebr., 780; 41 N. W., 780; Rex. v. Spriggs, 1 M. & Rob., 357. It has also been held almost universally that an entry by pushing open a door or window which is partially open is not burglary. On the other hand, it is burglary to enter by unlocking or unlatching a door or window, or even by pushing open a door that is shut but not fastened in any way,' or by raising a window or trapdoor which is entirely closed but held in place by its weight only. It is burglary to enter by means of a chimney." The degree of force necessary to effect the entry is not of importance.10 The question is whether the place of entry has been closed as much as the nature of things will permit, irrespective of whether after being closed it has been fastened or secured in any way. If so closed, any entry by such place constitutes a breaking."1 The need of a clear distinction to determine what is to be held burglary and what not, is apparent. The great majority of the cases hold the further opening of a partly opened door or window is not an act which amounts to a breaking of the security of the building, apparently upon the ground that the breaking must be the initial act impairing the security.12 5 Rose v. Com., 19 Ky. L. Rep., 272, 40 S. W., 245; Com. v. Strupney, 105 Mass., 588 (the window by which entry was made had been left open a quarter of an inch); State v. Wilson, 1 N. J. L., 439; Rex. v. Smith, 1 Moody C. C., 178. But see contra, Claiborne v. State, 113 Tenn., 261, 83 S. W., 352, 68 L. R. A., 859; People v. White, 153 Mich., 617, 117 N. W., 161, 17 L. R. A. (N. S.), 1102; State v. Sorenson, 138 N. W. (Ia.), 411; State v. Lapoint, 88 Atl. (Vt.), 523. State v. Moore, 117 Mo., 395; 22 S. W., 1086; State v. O'Brien, 81 Ia., 93, 46 N. W., 861. 7 Kent v. State, 84 Ga., 438, 11 S. E., 355. 8 State v. Herbert, 63 Kan., 516, 66 Pac., 235. Donohoo v. State, 36 Ala., 281; State v. Willis, 52 N. C., 190. 10 Walker v. State, 63 Ala., 49; Timmons v. State, 34 Ohio St., 426. 111 Hawk P. C., c. 38, sec. 4; 1 Hale P. C., 552. 12 Sir William Blackstone in his Commentaries, Book 4, sec. 226, gives as the reason for the rule that entry by means of a partially opened door or window is not such a breaking as to constitute burglary, that it was "the folly and negligence" of the person in leaving his doors and windows open. Many of the cases have given the negligence of the house owner as the reason for the distinction. Pines v. State, 50 Ala., 153; State v. Boone, 35 N. C., 244. Such reasoning is contrary to the well settled rule that contributory negligence is not an answer to a criminal charge. Belk v. People, 125 Ill., 584, 17 N. E., 744; Crum v. State, 64 Miss., 1, 1 So., 1; Reg. v. Kew, 12 Cox C. C., 355. Since the breaking is a necessary element of the crime, the rule that when an entry is made through an open door or window where no force is necessary to make the entry-that is, where the opening is sufficient to admit of entry without need of further increasing it-such an entry is not a breaking, seems technically justifiable, although the moral wrong of such an entry is as great as in any other form of entry. Now that the death penalty for burglary has been abolished the necessity of restricting the scope of the crime is largely done away with, and the rule which determines that burglary is committed when a closed window is raised to effect the entry, but that no burglary is committed if the window be found raised the fraction of an inch at the time of entry, 18 has no longer as its justification the extreme penalty formerly inflicted for the crime, and since the man who enters by further opening a partly opened door or window is morally as deserving of punishment as he who enters by opening a fully closed door or window, the better rule, and the one towards which the latter cases seem to tend, is that given in the recent case of State v. Lapoint,15 holding that the removal of an obstruction which if left as found would prevent an entrance, constitutes a sufficient breaking, it being immaterial that a portion of the entrance was already open. 14 In view of the almost universal practice at the present time of leaving windows open for ventilation, the statutes abolishing breaking as an element of burglary seem preferable. 13 Com. v. Strupney, supra. 14 Rex v. Hyams, 7 C. & P., 441 note (a), 32 E. C. L., 577. |