¶1The question in this case is, whether, if a *39husband commit a battery upon the wife, tbe circumstances of provocation attending it, which her bad behaviour and misconduct afforded, may be given in evidence to the jury in order to mitigate the fine. We think the law is, that circumstances of provocation occurring at the time, and immediately inciting the party to the unlawful act, may be received in extenuation to mitigate the fine. The law so far regards the frailty of human nature, as to distinguish between him who, upon sudden provocation, commits an unlawful act, and one who does it wantonly and deliberately. The same measure of punishment is not, and ought not to be applied indiscriminately to both. So in this case, if the husband was at the time, as is shown by the bill of exceptions, provoked to this unmanly act by the bad behaviour and misconduct of his wife, he should not be visited with the same punishment as' if he had withorit provocation wantonly and brutally injured one whom it was his duty to nourish and protect.
¶2It results from this view, that the evidence of. provocation was improperly excluded from the jury, and the judgment is consequently reversed, and the case remanded.