## Facts

- William Maher was indicted for assault with intent to kill and murder Patrick Hunt.
- The prosecution showed Maher entered Michael Foley’s saloon in Houghton appearing excited and perspiring, walked directly to Hunt, and immediately fired a pistol, severely wounding Hunt.
- Maher offered evidence that shortly before the shooting he saw Hunt and Maher’s wife go into nearby woods under circumstances suggesting adultery, followed them, then pursued Hunt to the saloon.
- Maher also offered evidence that, while going to the saloon, he was told Hunt and Maher’s wife had engaged in sexual intercourse the prior day.
- The trial court excluded the adultery-related evidence and Maher was convicted.
- Maher sought appellate review, arguing the excluded evidence was relevant to provocation, heat of passion, and the presence or absence of malice.

## Issues

1. Whether evidence that the defendant discovered, or reasonably believed, recent adultery involving his wife and the victim was admissible to show adequate provocation and heat of passion, bearing on malice and intent.
2. Whether, in a prosecution for assault with intent to murder, the jury must be allowed to consider evidence that—if death had ensued—the offense would have been manslaughter rather than murder.
3. Whether adequacy of provocation and reasonable cooling time are questions for the jury rather than determinations made by the court as matters of law on the offered proof.

## Decision

- The Michigan Supreme Court reversed the conviction and granted a new trial.
- The court held the excluded evidence was relevant and admissible because it tended to show the defendant acted in heat of passion upon adequate provocation, negating malice.
- The court held that, because assault with intent to murder requires an intent to kill under circumstances that would constitute murder if death occurred, evidence tending to reduce the hypothetical homicide to manslaughter bears directly on the charged intent.
- The court ruled that adequacy of provocation and whether sufficient time elapsed for passion to cool are factual questions for the jury based on the circumstances.
- The court treated the excluded circumstances as part of the surrounding events of the assault, which the jury was entitled to consider in assessing the defendant’s state of mind.

## Legal Principles

- For assault with intent to murder, the prosecution must prove an actual intent to kill under circumstances that would make the killing murder, not manslaughter, if death ensued.
- Malice aforethought is an essential element of murder; the presumption of innocence applies to malice as well as the act, and the prosecution bears the burden of proof on each element.
- A killing committed in heat of passion, produced by adequate provocation and before a reasonable cooling time, constitutes manslaughter rather than murder because the act arises from temporary loss of reasoned control rather than malice.
- Provocation is assessed by whether it would cause an ordinary person of average disposition to act rashly from passion rather than judgment; application of that standard depends on the full context.
- Adequacy of provocation and reasonable cooling time are ordinarily questions of fact for the jury.

## Conclusion

The court ordered a new trial because the jury should have been permitted to hear and evaluate evidence of recent adultery-related provocation and the immediacy of the ensuing pursuit and shooting, as such evidence could negate malice and defeat the “intent to murder” element required for assault with intent to murder.


Maher v. People, 10 Mich. 212 (Mich. 1862)