prisoner, if without fault, to the instruction, | 325, 37 S. E. 695, Syl., point 4; State v. for if without fault he was entitled thereto. Taylor, 57 W. Va. 228, 241, 50 S. E. 247; Naugher v. State, 105 Ala. 26, 17 South. 24. | Wharton on Hom. §§ 165 and 222, supra ; If in fault, either in provoking the assault, 21 Cyc. 1076, and cases cited in note 85. The or in bringing about the conditions resulting latter authority says: "But the state of the in the homicide, he was not entitled to an evidence may be such as to call for an ininstruction which ignored, as this instruction struction both on manslaughter and on selfdoes, this element of self-defense, for the defense, and in that case the court should authorities all hold that to justify homicide instruct the jury that if the defense is esthe slayer must have been reasonably with- tablished it renders the killing excusable and out fault. State v. Stockman (S. C.) 64 S. defendant should be acquitted altogether." E. 595, Syl., point 19; Wharton on Hom. 358, § 223. All witnesses agree that deceased began the altercation, and defendant and at least one of his witnesses concur in stating that deceased made the first assault, and no one pretends that defendant was the aggressor. It is suggested by the Attorney General that, by repeating his question to the deceased as to whether he had drawn his gun on him, the prisoner was in fault, and thereby brought on or continued the difficulty culminating in the homicide, and that the instruction was properly rejected for ignoring this fact; but I do not think the evidence on this subject was of that appreciable character justifying the rejection of the instruction on this ground. Upon all points considered I think the court erred to the prejudice of the prisoner in rejecting instruction number seven. It remains for us to consider instructions 8 and 9, refused. No. 8 would have said to the jury that, where one kills another, though intentionally, but in passion, in the heat of blood, upon sudden provocation by gross indignity, or by threat of personal violence, he cannot be found guilty of murder. No. 9 would have told the jury that, although they might find from the evidence that defendant killed Murphy, and that the killing was intentional, yet if they should further find from all the evidence and circumstances in the case that such killing was done under the conditions assumed in the eighth instruction, he could not be found guilty of murder. Three objections were urged in argument against both these instructions: First, that if otherwise good, they are inconsistent with the theory of self-defense, without evidence to justify them, and properly rejected on these grounds; second, that both ignore the element of malice, a distinguishing characteristic of murder; and, third, that by the use of the disjunctive "or," preceding the words, "threat of personal violence," they would have justified the homicide on the ground of mere threat of personal violence. If there was no evidence of an appreciable degree showing, or fairly tending to show, passion, heat of blood reasonably provoked, of course, they were properly rejected. Wharton on Hom. 356, § 222. If, however, there was sufficient evidence to support this theory of the defense, if otherwise good, they should have been given. State v. Matthews, 148 Mo. 185, 49 S. W. 1085, 71 Am. St. Rep. 594, Was there any evidence on which to predicate these instructions? Abusive language was used by the deceased toward the prisoner, and vile and opprobrious epithets applied to him; but, as is said by high authority: "The nearly universal rule is that, when the evidence shows an intent on the part of defendant to kill, no words of reproach, no matter how grievous so ever, are provocation sufficient to free the party killing from the guilt of murder; nor are indecent, provoking actions and gestures, expressive of contempt or reproach, without an assault upon the person, especially when a deadly weapon is used in the killing." Wharton on Hom. 274, § 173, and many cases cited in note, including Allen v. U. S., 164 U. S. 492, 497, 17 Sup. Ct. 154, 41 L. Ed. 528; Read's Case, 22 Grat. (Va.) 924, 938 On the subject of the reduction of murder to manslaughter, Judge Moncure, in the latter case, says: "Words alone, however insulting, or contemptuous, are never a sufficient provocation to have that effect, at least where a deadly weapon is used, so tender is the law of human life and so much opposed is it to the use of such a weapon." An exception has been ingrafted on this general rule in some decisions and is recognized by Mr. Wharton (Wharton on Hom. 277), and perhaps by other authorities, applicable where "foul and opprobrious words are used in connection with vexatious acts and conduct, such a character as to excite the passions of the mass of men, so as to enthrall their reason; the question whether or not they are sufficient being one of fact for the jury under all the circumstances of the case." Among the cases cited by Wharton, State v. Grugin, 147 Mo. 39, 47 S. W. 1058, 42 L. R. A. 774, 71 Am. St. Rep. 558, perhaps, most clearly states and applies this exception to the general rule. Indeed, this case, by a divided court, attacks the general rule, and the theory on which it is based, and cites a number of cases in which the exception to the rule has been applied. "And this is the rule," says Wharton, "with reference to abusive language accompanied by an advance with a drawn knife"-citing, as authority, Gray v. State, 47 Tex. Cr. R. 375, 83 S. W. 705, Golden v. State, 25 Ga. 527, and Edwards v. State, 53 Ga. 428; the latter case holding: "Mere words insufficient to reduce homicide from murder to manslaugh if they are of a knife, where no attempt was made to use | must be taken together, and it is not necesit." In the case at bar there was no combat. A quarrel had ensued, but no blow was struck. But in connection with the words spoken by him, according to the defendant's evidence, deceased was in the act of raising his gun as if to shoot him when the fatal shot was fired. Do these facts and circumstances make a sufficient showing to entitle the prisoner to instructions on the theory of voluntary manslaughter? Our conclusion is that they do, and that they bring the case within the general rule, and certainly within the exception thereto contended for by the authorities cited. Byrd v. Com., 89 Va. 536, 16 S. E. 727, was a case of homicide, committed under circumstances not unlike those in this case. In that case deceased, while applying abusive epithets towards defendants and others, seized a baseball bat, and, raising it, approached defendant, threatening to mash out his brains. Later he took down the bat, and, according to some witnesses, rested on it, but, according to others, he held it swinging in his hand, but made no further attempt to inflict injury on defendant. The defendant ran back some distance, picked up a couple of rocks, and, turning, advanced two or three steps towards deceased, who had not followed him, and threw the rocks; the first hitting deceased on the head, resulting shortly afterwards in his death. This was held to be manslaughter, and not murder. "As a general rule," says Wharton, "it requires an assault or personal violence to constitute adequate provocation"; but, as defined by this court in State v. Hatfield, 48 W. Va. 575, 37 S. E. 626, "assault" is an unlawful attempt or offer with force and violence to do bodily injury to another, and as is said in the same case, and in the same connection: "An assault may be completed without touching the person of the one assaulted, as by lifting a cane, clinching the fist, or pointing a gun at him; but words alone, however abusive, cannot amount to an assault." That the killing of an assailant who is in the act of raising his gun to take the life of his slayer may amount to justifiable homicide, we do not think ought to deprive the slayer on trial for murder of the right to an instruction on the theory of manslaughter, if there be evidence of opprobrious words used, accompanied with an assault, as furnishing the requisite and necessary provocation. But were these instructions bad for ignoring the element of malice? Should they have contained the words "without malice"? In State v. Dickey, supra, and State v. Dodds, 54 W. Va. 289, 46 S. E. 228, instructions on the law of voluntary manslaughter were approved which did not contain these words of exception, limitation, or condition. It is said in the latter case (syllabus, point sary to insert in each separate instruction all the exceptions, limitations, and conditions which are inserted in the instructions as a whole." In the case in hand instruction No. 2 for defendant, given, told the jury that "they must believe from the evidence, beyond every reasonable doubt, that such killing was done with malice aforethought, by defendant, and that such malice existed at the time of the beginning of the combat in which Murphy was shot by the defendant," and that unless they so found they could not "find the defendant guilty of murder." Was this instruction, read in connection with instructions 8 and 9, sufficient to limit the effect of those instructions to voluntary killing, “without malice"? Mr. Wharton says (Wharton on Hom. 265, § 167): "Where a homicide is suddenly committed in the heat of blood, or violent passion, on an adequate and sufficient provocation to produce in contemplation of law, the implication of malice is repelled and rebutted, and the killing is manslaughter, and not murder." And the same writer says, at page 314, apparently on the authority of Metcalfe v. Com., 27 Ky. Law Rep. 704, 86 S. W. 534, that "heat of passion necessarily includes without previous malice." There was no evidence of previous malice. On the contrary, the evidence shows the previous friendship of defendant and deceased. The quarrel originated and ended suddenly, in a very brief space of time. Although, when the evidence calls for it, the element of malice should not be omitted from an instruction on manslaughter, yet on the evidence in this case, and in view of the other instructions given, we think the prisoner's instructions Nos. 8 and 9 not defective so far as the question of malice is concerned. And lastly as to the use of the disjunctive "or": Both instructions assume that the adequate provocation necessary was produced by "gross indignity" or "threat of personal violence." They do not undertake to define to the jury the meaning of these words. The words "gross indignity" are more generally employed in proceedings for divorce than in criminal cases, and, when so employed, the indignity which will furnish good ground for divorce may be inflicted by acts or conduct rendering the condition of the injured party intolerable, and personal violence, or conduct creating fear of bodily harm, it seems, is not a necessary element of the offense. 14 Cyc. 625-6. But in the case of homicide, as we have seen, no words, however opprobrious, will, as a general rule, constitute sufficient provocation. Some assault or equivalent act of indignity must also be inflicted. What meaning, then, would these words of the instructions have conveyed to the jury, and to what evidence or facts proven in the case would the jury naturally and plainly have applied them? If it be said he was under no duty or obligation to retreat. In this state of the evidence, the place of the homicide was clearly immaterial; the law of the case being the same whether it was in his dwelling house or elsewhere. It is, I take it, elementary law that no party to a trial is entitled to have an instruction raising an immaterial question. See numerous cases cited in 7 Ency. Dig. Va. & W. Va. 717, 718. Such instructions tend to confuse and mislead the jury. In view of this, I do not see any necessity for determining the rights of co-occupants of a house when one, after mutual combat between them, takes the life of the other, or takes his life in resisting an attack not ac tually or apparently deadly or felonious. That element is not in this case. ROBINSON and WILLIAMS, JJ., concur in this note. as applying to the abusive and vulgar lan- | it occurs. Hence the prisoner was fully proguage, and the assault by the deceased with tected by the instruction embodying the law his gun, the proper answer, we think, would of self-defense and plainly telling the jury be that having followed these words with the words, "or threat of personal violence," there was such a segregation of the fact of drawing the gun, the only act or threat of personal violence shown in the evidence and to which this language of the instructions could have applied, from the opprobrious language used, as would have confused the jury and rendered the instructions bad on this account. If the mere threat of personal violence by deceased, preceding his assault on defendant with his gun, as to which there was some evidence, was the threat to which the language of the instructions was intend ed to apply, the answer would be that mere threats, unaccompanied by other acts inducing the reasonable belief that they are to be immediately carried into execution, and though attended with abusive and insulting language, will not, as a general rule, constitute adequate provocation. 21 Cyc. 743, 744; Wharton on Hom. 402, § 243. At common law voluntary manslaughter is the unlawful killing of another, without malice, on a sudden quarrel, or in the heat of passion, and, generally, "if a man be greatly provoked by any gross indignity, and immediately kills his aggressor, it is voluntary manslaughter, and not excusable homicide, not being se de fendendo." Wharton on Hom. 6, § 5. In every such case, however, the unlawful killing must have been done in the heat of passion, induced by adequate provocation, and, though it may be done in general terms, the jury should be instructed as to what such adequate provocation is, and not left in doubt and uncertainty by the language of the general charge defining manslaughter, or by other language calculated to mislead. 21 Cyc. 1072; Wharton on Hom. 310, § 192. Measured by these rules, we think instructions Nos. 8 and 9 clearly defective, and that they were properly refused by the trial court. I would reverse the judgment below for error in rejecting instruction No. 7; but, my associates having found no error therein, it must be affirmed. BRANNON, J. I agree to the decision. I agree with Judge POFFENBARGER in regarding instructions 6 and 7 immaterial; but I wish to add that, if this were not so, the refusal of them did not affect the trial. It is not the case of a bad instruction given, but of an instruction refused. Other instructions fully presented to the jury the defendant's right or defense of self-defense, which the jury well knew without any instruction, even had not instructions fully presenting that matter to the jury been given. So I am sure that there has been a fair trial, and that the want of those instructions did not affect it. I am opposed to the reversal of fair trials for high crimes on technical grounds. Such reversals bring odium and reproach upon the administration of the law and render life unsecure. For this position I cited the cases in a note to Lay v. Coal & C. Co., 64 W. Va. 296 (61 S. E. 156). SANTEE RIVER CYPRESS LUMBER CO. v. APPEAL AND Error (§ 830*)-DIVIDED Court Court is heard by a court composed of four POFFENBARGER, J. (concurring). The concrete case is not fully disclosed in the second point of the syllabus. The law, requiring retreat, applies only when the prisoner has provoked or induced the affray in which the killing was done, or was otherwise in fault. A man in his own house need not retreat from any kind of an attack by an intruder; but he cannot there or elsewhere take life unnecessarily. In this case the killing was not preceded by any combat, blow or blows struck, or anything more than a verbal altercation. The attack, if any, was violent, deadly, and felonious. In such case there is no duty to retreat, no matter where [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3211, 3224; Dec. Dig. § 830.*] Appeal from Common Pleas Circuit Court of Colleton County. Action by the Santee River Cypress Lum ber Company against the Colleton Cypress | 5. NUISANCE (8 23*)-INJUNCTION. PER CURIAM. When this case was heard on appeal to the Supreme Court, the court was composed of four members, three of whom only are now in commission. As two of the remaining Justices are of the opinion that the judgment of the circuit court should be reversed, and the other Justice is of the opinion that it should be affirmed, it will be necessary to have a rehearing of the case. It is therefore ordered that the case be set for reargument at the next term of the court, during the time assigned for the hearing of cases from the ninth circuit. It is further ordered that the opinions be filed with the reporter of the Supreme Court, for the sole inspection of counsel engaged in the case. WILLIAMS v. HAILE GOLD MINING CO. (Supreme Court of South Carolina. Nov. 23, 1909.) 1. JUDGMENT (§ 710*)-PERSONS NOT PRIVIES -EVIDENCE-RES INTER ALIOS ACTA. In an action against a mining company for damages through the pollution of a stream running through plaintiff's land, the record in another case against defendant by a different plaintiff was inadmissible as evidence of the establishment of an easement in defendant's favor for the use of the stream in the manner complained of against the owner of lands situated on the same stream below plaintiff's lands; such record being res inter alios acta, no privity of estate appearing. [Ed. Note. For other cases, see Judgment, Cent. Dig. § 1230; Dec. Dig. § 710.*] 2. APPEAL and Error (§ 216*)-REVIEW. Alleged error of the trial court in not framing in a certain way issues submitted to the jury need not be considered on appeal where no request to have the issues so submitted appears. [Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 216.*] 3. EASEMENTS (§ 5*)-PRESCRIPTION. To acquire an easement by prescription, it must have been used insubstantially the same way for the full period of 20 years, and adversely to the rights of the owner, and the time does not begin to run until some injury is done which would support an action. [Ed. Note.-For other cases, see Easements, Cent. Dig. § 13; Dec. Dig. § 5.*] When the existence of a nuisance is established by the verdict of a jury, the injured party is entitled as a matter of right to an injunction to prevent its continuance. [Ed. Note. For other cases, see Nuisance, Dec. Dig. § 23.*] 6. EMINENT DOMAIN (§ 62*)-TAKING PRIVATE PROPERTY FOR PRIVATE USE-CONSENT OF OWNER. Under the constitutional provision against taking private property for private use without the owner's consent, in an action to enjoin defendant from polluting with tailings from its mine a stream running through plaintiff's land, the court could not consider the question as to the balance of convenience or of the advantage the public at large through such use of the or disadvantage to plaintiff and defendant and stream. [Ed. Note.-For other cases, see Eminent Domain, Dec. Dig. § 62.*] Appeal from Common Pleas Circuit Court of Kershaw County; Geo. W. Gage, Judge. Action by Emma E. Williams against the Haile Gold Mining Company. Judgment for plaintiff, and defendant appeals. Affirmed. E. D. Blakeney, for appellant. J. Harry Foster and M. L. Smith, for respondent. HYDRICK, J. About the year 1879 the defendant engaged in gold mining on a stream which flows through plaintiff's lands below. At first the ore was reduced by stamp mills, some four or five years later by crushing or roller mills, the tailings from which were carried into the stream. About the year 1888 the defendant installed what is known as the "chlorination process," which consists in treating the finely pulverized ore with chlorine, resulting from the chemical action of sulphuric acid on chloride of lime. The tailings from this process were also discharged into the stream. When the stream overflows, this refuse matter is deposited on plaintiff's lands lying thereon, and has proved to be so injurious and destructive to plant life that plaintiff for nearly 10 years has had to abandon the cultivation of the lands so affected. This action was brought to recover damages for the alleged nuisance, and to enjoin the continuance thereof. The defendant interposed the following defenses: (1) A general denial; (2) the statute of limitations; (3) a prescriptive right to discharge the tailings from its mills into the stream; and (4) as against the equitable relief sought 1st that the plaintiff has an adequate remedy at law by action for damages; 2d the balance of convenience, or advantage to the defendant and the public; and 3d laches of the plaintiff. The presiding judge submitted to the jury the following issues, which were answered by the verdict of the jury as appears by the answers after each: "Do the acts of the mining company, detail ed in the complaint and testified to by the witnesses, constitute a nuisance? A. Yes. Has the mining company used the mine *For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes branch in the way detailed in the pleadings [ue of the use of the land. We do not see and testified to by the witnesses and in sub-how defendant could have been prejudiced stantially the same way for full 20 years by his honor's charging the jury that the before May 1, 1907, continuously and ad- plaintiff was entitled to recover, if at all, versely to the right of the plaintiff? A. No. the value of the use of the land for six What was the use of the 30 acres of land years prior to the commencement of the acdescribed in the complaint, or so much there- tion. It has been too frequently held by of as the mining company rendered unfit for this court to require further discussion that, use, if any, worth for the aggregate of six when the existence of a nuisance has been years next before May, 1907? A. $1,262.50 established by the verdict of a jury, the we find for the plaintiff." Thereafter his party injured is entitled as a matter of honor refused a motion by defendant to set right to an injunction to prevent its continaside the verdict, and granted plaintiff's mo- uance. Threatt v. Mining Co., 49 S. C. 95, tion for "injunction to stop the nuisance com- 26 S. E. 970; Mason v. Apalache, 81 S. C. plained of and now found to exist." 554, 62 S. E. 399, 871. Whatever may be the doctrine in other states, under the provisions of the Constitution of this state, that private property shall not be taken for private use without the consent of the owner, the court could not have considered, in deciding whether to grant or refuse the injunction, the question raised by the defendant as to the balance of convenience, or of advantage or disadvantage to the plaintiff and defendant and the public at large, for the defendant's use of the stream. That question would be pertinent only in an application addressed to the Legislature to give such corporations the power of condemnation. Boyd v. Granite Co., 66 S. C. 433, 45 S. E. 10. Judgment affirmed. The first exception imputes error to the court in excluding the record in the case of W. T. Jones et al. v. Haile Gold Mining Company, which was offered as evidence of the establishment of an easement in favor of defendant for the use of the stream in the manner complained of against the owner of lands situated on the same stream below the lands of the plaintiff. The defendant contended that the record should have been admitted under the authority of McDaniel v. Walker, 46 S. C. 43, 24 S. E. 378. The record was properly excluded. In McDaniel v. Walker the parties proved title from a common source, and were therefore privies in estate. Here no privity whatever appears. The record offered was therefor res inter alios acta. The next question is whether his honor erred in not framing the issues submitted to the jury, so that the findings would distinguish between the use of the stream for the discharge of the tailings from its mills before the installation of the "chlorination process," and the use thereof afterwards. In the first place, it does not appear that any request was made by the defendant that the issues should be so submitted, which would be sufficient to dispose of this ground of appeal. But, aside from that, it appears that the stream was used for the discharge of the tailings from the mills, not treated by the "chlorination process," for only about 10 years, from 1879 to 1888, or 1889-a time too short by 10 years to acquire a prescriptive right to such use of the stream-and that, after the installation of the "chlorination process," practically all the tailings were affected by that process. To acquire an easement by prescription, it must have been used in substantially the same way for the full period of 20 years, and adversely to the rights of the owner. The time does not begin to run until there is some injury done which would support an action. The plaintiff's testimony was to the effect that no injury resulted to her land from the use of the stream by defendant before the installation of the "chlorination process." Washb. Eas. 150, 155, 171. There is practically no difference between the rental value of land and the val BARTON v. TRAVELERS' INS. CO. (Supreme Court of South Carolina. Nov. 18, 1909.) OF 1. INSURANCE (8 84*) - COMPENSATION AGENT-INTEREST AND RENEWAL PREMIUMS AND COMMISSION THEREON. An insurance agent's contract provided that termination thereof for any cause should terminate his interest in renewal premiums and commissions thereon, except as thereafter prointerest in renewals in case of termination by vided. The exception provided for a continued his death or otherwise by the terms of the contract, except for breach, but no provision was made in the contract for its termination by a new contract afterwards made, which expressly canceled all former contracts. Held, that the first contract being terminated by the new contract, and so not by anything in the terms of the est in commissions on renewals under such confirst contract, it followed that the agent's intertract also terminated. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 111-114; Dec. Dig. § 84.*] 2. CONTRACTS (§ 166*)—ADDITIONAL STIPULATIONS AS PART OF CONTRACT. That additional stipulations agreed on and signed by the parties and styled by them a "rider attached to and forming a part of" the contract referred to by its date form a part of the self, and it is as much subject to the provisions contract is conclusively shown by the rider itof the contract as any other part. [Ed. Note. For other cases, see Contracts, Cent. Dig. § 749; Dec. Dig. § 166.*] 3. CONTRACTS (§ 226*) - CONDITIONS - CONSTRUCTION AS TO FORFEITURE FOR BREACHENFORCEMENT OF PROVISION. Courts do not favor forfeitures, and, in cases of doubtful construction, will refuse to |