127 Tenn. 376 (1912)
The plaintiff in error, Raymond Freddo, was indicted in the criminal court of Davidson County for murder in the first degree, alleged to have been committed on the body of James Higginbotham on December 22, 1911. He was found by the jury guilty of murder in the second degree, his punishment being fixed at ten years' imprisonment. After the verdict, a motion for a new trial was overruled, and appeal was prayed to this Court, where errors are assigned.
Two of the assigned errors challenge the sufficiency of the evidence to support the verdict; it is earnestly urged on behalf of plaintiff in error that the facts did not warrant a verdict of guilt of a degree greater than voluntary manslaughter, if guilt of any crime be shown.
By the preponderance of the proof, we deem the record to establish the following facts. In the roundhouse department of the shops of the Nashville & Chattanooga Railway Company at Nashville, from fifty to sixty men were employed, among them being plaintiff in error, Freddo, and the deceased, Higginbotham. Freddo was about nineteen years of age; he had been an orphan from the age of four, reared thereafter in an orphanage and later in the family of a Nashville lady, with the result that he had been morally well trained. The proof shows him to have been a quiet, peaceable, high-minded young man of somewhat retiring disposition. Due, perhaps, to the loss of his mother in infancy and to his gratitude to his foster mother, he respected womanhood beyond the average young man and had a decided antipathy to obscene language or language that reflected on womanhood.
Deceased, Higginbotham, was about six years older than Freddo and belonged to a small coterie of the roundhouse employees given to the use of obscene language and to frequent application of the expression "son of a bitch" to members of their set and sometimes to others who would permit it. Prior to the date of the difficulty, deceased had applied this epithet to Freddo without intending offense, but Freddo requested that it be discontinued because he did not appreciate it. It was repeated, and Freddo again warned deceased not to use it. The mechanic J. J. Lynch, under whom Freddo served as helper, on noting Freddo's sensitiveness sought out deceased and warned him to desist. On Lynch's telling deceased that Freddo was offended and that "he will hurt you some day," deceased replied, "The son of a bitch, he won't do nothing of the kind." By a strong preponderance of the evidence, deceased is shown to have been habitually foul-mouthed, overbearing, and at times "nagging and tormenting" in language and conduct.
On the afternoon of the homicide, Higginbotham and Freddo were part of a small force under Foreman Lynch engaged in packing a locomotive cylinder. Deceased was in a squatting posture holding a pinch bar. It appears that someone, thought by deceased to have been Freddo, had spilled oil on deceased's toolbox. As he proceeded with his work and within hearing of the crew, deceased remarked: "Freddo, what in the hell did you want to spill that oil on that box for. If someone spilled oil on your box, you would be raising hell, wouldn't you, you son of a bitch?" Freddo asked Higginbotham if he meant to call him a son of a bitch, and deceased replied in an angry, harsh tone, "Yes, you are a son of a bitch."
The plaintiff in error, standing to the left and about eight feet away from deceased and seeing deceased preparing to rise or actually rising from his squatting posture, seized a steel bar one yard long and one inch thick lying immediately at hand and struck deceased a blow on the side of his head above the left ear, extending slightly to the front and more to the rear of the head. The blow was not shown to have been delivered from the rear. Deceased had not yet gained an erect posture but is described as stooping when the blow was delivered.
Plaintiff in error testified that deceased, in rising, appeared to be coming at him, that deceased made a gesture and had his hand behind him all the time, that he believed Higginbotham was going to strike, and that he struck because of anger at the epithet and to defend himself, but would not have struck but for deceased's movement. The evidence preponderates against the prisoner on the point that deceased had his hand behind him or that he was in a position to strike; it does not appear that deceased had anything in his hand with which to attack.
The character of plaintiff in error for truth and veracity was not attacked and was affirmatively established. Higginbotham fell on the pinch bar with his body suspended therefrom until he was removed to a hospital, where he shortly died from the effects of the wound.
It is apparent to the Court that the blow was struck by plaintiff in error in sudden anger and passion aroused by the repeated and emphasized epithet used in an opprobrious tone, especially in view of the prior warnings. Theretofore plaintiff in error had entertained neither friendship nor hostility toward deceased, and the proof indicates that after the warnings and before the killing the two had been on amicable but not familiar terms. Deceased was taller than plaintiff in error and weighed about 165 pounds, roughly thirty pounds more than Freddo.
As indicated above, we deem the facts sufficient to show that plaintiff in error killed deceased under the impulse of sudden heat of passion; but, no matter how strong his passionate resentment was, it does not suffice to reduce the grade of the crime from murder to voluntary manslaughter unless that passion was due to a provocation that the law deems reasonable and adequate—that is, a provocation of such character as would, in the mind of an average reasonable man, stir resentment likely to cause violence, obscuring the reason and leading to action from passion rather than judgment.
While the testimony indicates that plaintiff in error was peculiarly sensitive to the use of the opprobrious epithet, the rule is firmly fixed that the law tests adequacy of provocation on the basis of a mind ordinarily constituted—that of the fair average person. See Seals v. State, 3 Baxt. 459, 462; Johnson v. State, 11 Lea, 47; Reg. v. Welsh, 11 Cox, C. C. 336; State v. Ferguson, 2 Hill (S.C.) 619, 27 Am. Dec. 412; Ryan v. State, 115 Wis. 488, 92 N.W. 271.
In Ryan v. State, Chief Justice Cassoday, speaking of a charge embodying this principle, said that the sufficiency of provocation does not depend alone on whether it actually caused passion in the defendant, but also on whether it was calculated to cause such a state of mind in a reasonable person. The text authorities support this view. See 1 McClain, Crim. Law, §§ 337-338; 21 Am. & Eng. Enc. Law (2d Ed.) 177-78; 21 Cyc. 742.
The rule in this State, as at common law, is that mere epithets or language, however violent or offensive, are not sufficient provocation for taking life. See Williams v. State, 3 Heisk. 376, 392; Wharton on Homicide (3d Ed.) § 173. Courts have often considered the epithet "son of a bitch" in connection with adequate cause and have, with few exceptions, held that such words do not constitute adequate provocation.
In Texas, where statute makes insulting words or conduct toward a female relative of the slayer adequate cause to reduce murder to manslaughter, the courts have nevertheless held that the particular opprobrious epithet is not adequate. See Levy v. State, 28 Tex. App. 203, 12 S.W. 596, 19 Am. St. Rep. 826, and later cases in accord.
It is contended, however, that while the epithet alone may not be sufficient, when considered in connection with the deceased's conduct in rising from a squatting to a stooping posture at the moment the epithet was uttered, the words and act in combination constitute adequate provocation.
The common-law rule appears to be that an assault too slight in itself to be sufficient provocation may become such when accompanied by offensive language. See Reg. v. Sherwood, 1 Car. & Kir. 554; Reg. v. Smith, 4 Fos. & F. 1066; State v. Buffington, 71 Kan. 804, 81 Pac. 465, 4 L.R.A. (N.S.) 158, 114 Am. St. Rep. 500, and cases cited in the notes. In Wadlington v. State, 19 Tex. App. 266, the court recognized that insulting words and a slight assault, when not isolated from one another, may together constitute adequate cause under the statute.
But can words alone, not accompanying an imminent or actual assault or trespass, make the provocation adequate? This Court in Seals v. State, 3 Baxt. 459, considered obscene language used in the defendant's own house (a trespass) in the presence of his family and held that the jury, under proper instructions, should determine whether the obscene language, in connection with vexatious conduct, was calculated to produce passion that would obscure the reason of an ordinary man.
In Grainger v. State, 5 Yerg. 460, the deceased was advancing directly on the defendant without stopping and was shot. The court held that if the defendant thought the deceased intended to commit a battery less than great bodily harm and killed to prevent it, the offense was manslaughter. Thus, if abusive language accompanies an advancing person armed with a knife, manslaughter may be the result; but if a knife is only drawn and not attempted to be used, the crime would not be reduced. See Gray v. State, 47 Tex. Cr. R. 375, 83 S.W. 705; Golden v. State, 25 Ga. 527; Wharton on Homicide § 173; Edwards v. State, 53 Ga. 428; Ex parte Warrick, 73 Ala. 57; Phelps v. State, 75 Ga. 571.
There is no assignment of error that the trial judge failed to give the jury proper definitions and distinctions between murder in the second degree and manslaughter, nor is the charge open to that criticism.
Because the stroke was delivered at a moment when the jury may have found that deceased was not in a position to assault the defendant, and because the adequacy of provocation in such a case is for the jury under proper instructions (Seals v. State, supra; Taylor v. State, 6 Lea, 234; Maher v. People, 10 Mich. 212, 81 Am. Dec. 781; Wharton on Homicide (3d Ed.) § 173), we hold that the errors assigned and here treated are not well taken. Other assignments of error are disposed of orally.
Affirmed.
In view of the very good character of the young plaintiff in error as disclosed in the record, and of the peculiar motive and circumstances under which he acted, we recommend to the Governor of the State that his sentence be commuted to such punishment as the executive, in the light of this record and opinion, in his discretion thinks proper. To allow time for such application, execution of sentence is ordered stayed for ten days from this date.