Maher v. People 10 Mich. 212, 81 Am. Dec. 781 (1862) Maher heard that his wife was sleeping with a guy named Hunt. Maher found Hunt in a saloon and shot him in the ear. Maher was arrested and charged with attempted murder. At Trial, Maher had attempted to introduce evidence of his wife's affair, but that evidence was rule inadmissible. The Trial Court found Maher guilty of assault with intent to murder. He appealed. Maher argued that if his aim had been better and he had actually murdered Hunt, then the evidence of the affair would have been admissible to establish provocation. Typically, provocation can be used to mitigate a murder down to manslaughter, but it is generally limited for cases of extreme assault and battery, mutual combat, defendant's illegal arrest, injury or abuse of a close relative of the defendant, or sudden discovery of adultery. Maher argued that a successful provocation defense would have reduced the charge from second-degree murder to manslaughter (which is not murder). So, he did not have an intent to murder, and therefore couldn't be convicted of intending to murder Hunt. Instead, Maher argued he was only guilty of simple assault and battery. The Michigan Supreme Court overturned the conviction and remanded for a new trial. The Michigan Supreme Court agreed that if Maher had killed Hunt, he could have argued provocation. If successful, that would negate intent and reduced the charge to manslaughter. Although it would be a question of fact for the jury to decide if the provocation was adequate. The Court found that if Maher could show lack of intent due to provocation, that would reduce the assault charge as well. Therefore the Trial Judge erred in not allowing the evidence of the affair. In a dissent it was argued that the provocation was insufficient. It did not happen in the presence of Maher, and Maher had time enough to reflect on his actions before shooting at Hunt. The dissent argues that provocation should only be a mitigating factor when it occurs in the presence of the defendant and the response is immediate. That's not a factual question about whether the provocation was enough to cause Maher to murder, but a question of law about how separate the provocation and the murder need to be in space and time in order to constitute a defense.