said by Judge Christiancy in a Michigan case, "Provocations will be given without reference to any previous model, and the passions they excite will not consult the precedents." 364

ciety, and conversant with the practical affairs of life, are much better qualified to judge of the suf ficiency and tendency of a given provocation, and much more likely to fix, with some degree of accuracy, the standard of ordinary human nature, than the judge, whose habits and course of life give him much less experience of the working of passion in the actual conflicts of life."

In the case from which these quotations are taken, the evidence showed that the accused shot the deceased when laboring under great excitement. His counsel offered to prove, for the purpose of showing provocation, that the deceased had committed adultery with the wife of the accused within half an hour prior to the shooting, that the accused saw them come out of the woods, and foliowed them, and, after they had separated, went into a saloon after the deceased, and instantly shot him, and that, a few minutes before he entered the saloon, a friend told him that his wife and the deceased had committed adultery in the woods the day before. According to the old authorities, this would not show adequate provocation, as the accused did not see the act (ante, § 269e), and the trial court excluded the evidence. On writ of error after a conviction of murder, the judgment was reversed on the ground that it was

261. Cooling of Blood.

(a) In General.-Not only must the provocation have been of such a nature as might reasonably excite passion and overthrow reason, but the homicide must have been committed before the passion subsided and the blood cooled, and before the lapse of a reasonable time for cooling. If the blood of the accused actually did cool before he gave the fatal blow, it is clearly a case of murder, however short the time between the provocation and the blow. And if the circumstances show that he reflected, as where it appears that he sought some advantage, or took time to choose some convenient place for fighting, or to strike at a particular vital spot, actual cooling may well be inferred, for these circumstances show the exercise of reason and judgment.365

for the jury to say whether there was sufficient provocation, and that the evidence should have been admitted.

364 Maher v. People, 10 Mich. 212, 81 Am. Dec. 781, Beale's Cas. 482.

365 See 1 East, P. C. 252; Rex v. Oneby, 2 Ld. Raym. 1485. "If, from any circumstance whatever," said East, "it appear that the party reflected, deliberated, or cooled any time before the

(b) Reasonable Time for Cooling.—It is not necessary, however, in all cases, to show that the blood actually did cool, in order to make out a case of murder. It is enough to show that there was a reasonable time for cooling, for the law requires that men shall act reasonably in controlling their passions.366

The reasonable time for cooling is

fatal stroke given, or if, in legal presumption, there was time or opportunity for cooling, the killing will amount to murder." 1 East, P C. 252.

366 1 East, P. C. 252; Rex v. Oneby, 2 Ld. Raym. 1485; Lord Morely's Case, Kelyng, 53, Beale's Cas. 473; State v. McCants, 1 Speers (S. C.) 384 (one of the best cases on this point to be found in the reports); State v. Hill, 4 Dev. & B. (N. C.) 491, 34 Am. Dec. 396; Kilpatrick v. Com., 31 Pa. St. 198; McWhirt's Case, 3 Grat. (Va.) 594, 46 Am. Dec. 196; Hawkins v. State, 25 Ga. 207, 71 Am. Dec. 166; State v. Shippey, 10 Minn. 223, 88 Am. Dec. 70.

66

"Was he cool?' means, not was there in fact a gentle flowing of the blood, which had been hurried in its circulation, but means, was there, in law, malice in his act; and the reasonable time then is not mere evidence of actual cooling, or cooling in its popular sense, but is, in itself, a circumstance which, in law, stands in place of actual cooling, and is equally significant of malice. He who has received a sufficient legal provocation, such as might have mitigated to manslaughter a

the time within which an ordinarily reasonawould cool under like circum

ble man

stances.367 In applying this test, all the circumstances attending the homicide are to be taken into consideration, including the nature and extent of the provocation, the physical and mental constitution of the accused, his condition in life and peculiar situation at the time of the affair, his education and habits, and his conduct, manner, and conversation throughout the affair. "In a word, all pertinent circumstances may be considered, and the time in which an ordinary man, in like circumstances, would have cooled, is the reasonable time."308

(c) Question of Law or Fact.—Some of

mortal blow proceeding from it and given instantly, would not be less than a murderer if he should remain in apparently undiminished fury for a length of time unreasonable under the circumstances, and then kill." State v. McCants, 1 Speers (S. C.) 384.

367 State v. McCants, 1 Speers (S. C.) 384; Kilpatrick v. Com., 31 Pa. St. 198.

Where, after men had been engaged in mutual combat, they ceased to fight, and one of them went to some distance after a weapon, and then returned and killed the other, it was held that the homicide was murder, whether the party actually

the cases hold that whether there was reasonable time for cooling is a question of law to be decided by the court upon consideration of the length of time and all the other circumstances found by the jury on a special verdict, or else to be given to the jury in the court's charge.369 This, however, is wrong. The proper practice is to leave the question to be determined by the jury as a question of fact, under proper instructions, and by a general verdict. Whether, under all the circumstances, there was time for the passions of an ordinary man to cool must depend upon the nature of man and the laws of the human mind, as well as upon the nature and circumstances of the provocation, and in ordinary cases is essentially a question of fact for the jury,370

cooled or not. Hawkins v. State, 25 Ga. 207, 71 Am. Dec. 166.

368 State v. McCants, 1 Speers (S. C.) 384. See State v. Moore, 69 N. C. 267.

369 Rex v. Oneby, 2 Ld. Raym. 1485; Reg. v. Fisher, 8 Car. & P. 182; State v. McCants, 1 Speers (S. C.) 384.

370 Rex v. Hayward, 6 Car. & P. 157; Rex v. Lynch, 5 Car. & P. 324; Maher v. People, 10 Mich. 212, 81 Am. Dec. 781, Beale's Cas. 482; Hooks v. State, 99 Ala. 166.