without excess of force, it being for the jury to judge of the reasonableness of the force used, and for the defendant to show matter in excuse or mitigation. Rollins, 113-722.

Where a person is lawfully under arrest, and another attempts to rescue him, the officer in resisting such attempt is justified in using such such force as would ordinarily be considered as excessive, provided he acts in good faith and without malice. Rollins, 113–722.

On the trial of a policeman for murder the court charged that an officer may arrest without warrant for a breach of the peace committed in his presence, but that he must, unless a known officer, notify the person that he is an officer, and if he fail to do so, especially on demand, the arrest is illegal and may be lawfully resisted by the person arrested; and if the person making the arrest kill any one of those resisting it, he would be guilty of murder unless excessive force was used by those resisting it, in which latter case he would be guilty of manslaughter: Held, that the instruction was proper and not objectionable as expressing an opinion that defendant was or was not a known officer. Rollins, 133-722.

To justify the homicide of a felon, for the purpose of arresting him, the slayer must show not only a felony actually committed, but also that he avowed his object, and that the felon refused to submit. Roane, 13 (2 Dev.), 58.

Where deceased, a deputy sheriff, had arrested the prisoner upon a warrant for a misdemeanor, and while he was writing the bond, the prisoner escaped and deceased following to capture him, with pistol in hand, fired at the prisoner and in the altercation the prisoner shot and killed deceased, an instruction that the prisoner was at least guilty of manslaughter was correct. Durham, 141-741.

The law of self-defense applicable to encounters between private persons does not arise in the case in which a person sought to be arrested kills the officer seeking to make the arrest. Durham, 141-741.

12. COOLING-TIME.

The doctrine of cooling-time only applies when there has been legal provocation, and no words, however, insulting, and no actions or gestures expressive of contempt, unaccompanied by indignity to the person, by a battery, or at least by an assault, amount to a legal provocation so as to mitigate a slaying from murder to manslaughter. McNeill, 92-812.

Where a violent altercation in words had taken place between the prisoner and the deceased, and, after being separated for between five and ten minutes, they again came together, and, after angry and insulting words passed between them, the prisoner shot the deceased, the killing is murder and not manslaugh

ter. Ib.

The separation of two persons engaged in a fight, which eventually terminates in a homicide, to justify a verdict of murder must be for a time sufficient for the passions excited by the fight to have subsided, and reason to have resumed its sway, and the testimony of one witness that the prisoner was "absent no time," and of another that after the fight he started to go home and looking back the parties were again fighting, does not show suflicient cooling-time to justify a verdict of murder. Moore, 69–267.

What is time to cool between the occurring of a legal provocation and the infliction of a mortal blow is a question of law, and it is error to leave it to be passed on by the jury. Sizemore, 52 (7 Jones), 206.

The doctrine of cooling time does not apply where there is no legal provocation. Spivey, 132-989.

13. MALICE.

A witness testified that the prisoner told her on the day of the homicide that he had bought powder and shot and intended to kill a man that night, and exhibited his pistol, but refused to name the man. Another witness testified that a quarrel was going on between the prisoner and another in a shop kept by the prisoner's father, when deceased took up the quarrel and a sharp quarrel then ensued between them. After some time the prisoner started to go to bed, but was opposed by deceased who said he should not go to bed; the prisoner answered that it was hard if he could not go to bed in his father's house, and took a candle and went into the back room and was in the act of ascending the stairs when deceased went and seized him by the collar, pulled him through the back room and shop to the front door, and pushed him out, kicking him at the same time. Witness then left, but soon heard the report of the pistol which killed deceased. The prisoner admitted the killing to other witnesses. The judge instructed the jury that although the provocation stated by the second witness was sufficient to reduce the killing to manslaughter, yet if it connected the evidence of the first witness with the other evidence, they could collect the fact that deceased was the object of the threat deposed to by her, and that the prisoner went to the shop with the intention to provoke a quarrel with the deceased, in order to gratify his avowed vengeance, then the killing was murder, notwithstanding the provocation: Held, that the instruction was proper. Daniel J., dissenting, says that although the evidence of the indefinite threat to kill, coupled with the killing, was sufficient to be left to the jury to say whether the deceased was the object of the malice expressed against some one, yet the case ought to have been so submitted that the jury might find a locus penitentiæ or cesser of the former grudge; and that if they should find that the prisoner fired when his blood was boiling by the provocation the presumption arises that the killing was under the impulse of immediate anger and excitement, and the express malice is negatived. Johnson, 23 (1 Ired.), 354.

Where express malice is shown to have once existed, but a subsequent reconciliation, followed by fresh provocation, is proved, the law will refer the motive of the slayer to the recent provocation, and not to the antecedent malice, unless the special circumstances of the case forbid such a presumption. Barnwell, 80-466.

Although a person may not go in search of or lie in wait for another whom he kills, yet if he has formed the purpose to kill him, and, within a short time after forming and avowing such purpose, he, duly armed, meets the other by chance, whether in public or in secret, and slays him immediately, there is a presumption that he did it on the previous purpose and grudge, if there is no evidence of a change of purpose. Tilly, 25, (3 Ired.), 424.

The killing with a deadly weapon being admitted or proven, malice is implied, and the prisoner's drunken condition at the time of the killing does not repel malice and reduce his crime to a lower grade. Potts, 100457.

The rule which refers the motive of the slayer to antecedent malice rather than to an immediate provocation, is confined to cases where there is a particular and definite intent to kill, as where the weapon with which the party intends to kill is shown, or the time and place fixed on, and the party goes to the place at the time for the purpose of meeting his adversary and with an intent to kill him; but where the slayer bears malice toward deceased, and they meet by accident, and upon a quarrel, deceased assaults the prisoner with a grubbing hoe, and thereupon the prisoner shoots and kills him with a pistol, the rule does not apply. Johnson, 47 (2 Jones), 247.

As malice is a presumption raised by law from the fact of the killing with a deadly weapon, so what facts or circumstances will or will not rebut the presumption is also a matter of law, but whether the evidence sufficiently establishes the facts in rebuttal is a question for the jury. Capps, 134-627.

The prisoner must satisfy the jury of the facts and circumstances relied on to rebut malice. Wilcox, 118-1131.

The common law principle that malice is presumed from the killing with a deadly weapon, and the prisoner has the burden to rebut malice, is modified by the act of 1893 only to the extent of making the killing, when nothing else appears, murder in the second degree instead of in the first degree. WilCox, 118-1131.

The presumption that killing with a deadly peapon implies malice extends only to murder in the second degree. Booker, 123-713.

Provocation does not disprove malice, but only removes the presumption of malice which the law raises without proof. Johnson, 23 (1 Ired.), 355.

PRETENDED RECONCILIATION.-If there be an old grudge between two persons and they are reconciled again, and then upon a new and sudden quarrel one kills the other, it is not murder; but if from the circumstances it appears that the reconciliation was but pretended or counterfeit, and that the killing was done upon the force of the old malice, it is murder. Johnson, 23 (1 Ired.), 354.

THE CONTINUATION OF EXPRESSED MALICE PRESUMED.-When the existence of deliberate malice in the slayer is once ascertained, its continuance down to the perpetration of the meditated act must be presumed, until there is evidence to repel it. Johnson, 23 (1 Ired.), 354.

Whether there is any evidence to rebut the presumption of notice from the use of a deadly weapon is a question of law for the court. Lipscomb, 134

695

Motive is not an essential element of murder in the first degree, nor is it indispensible to a conviction even in cases of circumstantial evidence, though it may tend to show the degree of the offense, or to establish the identity of the defendant as the slayer. Adams, 138-688.

Where the state relies upon a motive it is not necessary to prove that the prisoner at the time of the killing knew the fact from which the alleged motive may be inferred. Adams, 138-688.

It is not necessary to show malice in order to convict of murder. Adams, 136-617.

Whether the facts are sufficient to rebut the presumption of malice from the killing with a deadly weapon is a question of law for the court. Lipscomb, 134-695.

Where there is evidence to rebut the presumption of malice from the use of a deadly weapon, the question as to whether the presumption has been rebutted is for the jury. Lipscomb, 134–695.

WHEN MALICE IS ONLY TO BE INFERRED FROM ALL THE CIRCUMSTANCES.— Where there is an antecedent grudge, and the parties between whom it exists meet and an affray ensues, and one is killed, the killing is not necessarily, by a presumption of law, to be referred to the antecedent grudge so as to make the killing murder; but the existence of malice in giving the mortal blow is a matter of inference for the court or jury from all the circumstances, of which the antecedent grudge is one. Ta-cha-na-tah, 64-614.

14. PROVOCATION.

PROVOCATION.-Words, however grievous, are not sufficient provocation to reduce the crime of murder to manslaughter. Carter, 76-20.

It is not necessary that a blow, in order to amount to legal provocation, should be one that endangered the life of the slayer. Sizemore, 52 (7 Jones), 206.

The question whether facts amount to a sufficient provocation to palliate a killing from murder to manslaughter is entirely a question of law, and is for the court to decide. Craton, 28 (6 Ired.), 164.

Where there is but slight provocation, if the killing be done with an excess of violence out of all proportion to the provocation, it is murder. Chavis, 80-353.

Where two persons have formerly fought on malice, and are apparently reconciled, and fight again on a fresh quarrel, it shall not be intended that they were moved by the old grudge, unless it so appear from the circumstances of the affair. Hill, 20 (4 D. & B.), 491.

Whenever force is used upon the person of another, under circumstances amounting to an indictable offense, such force is legal provocation. Miller, 112-878. Cæsar, 31 (9 Ired.), 391.

If the killing be committed in an unusual manner, showing evidently that it is the effect of deliberate wickedness, it is murder, although there be great provocation. Currey, 46 (1 Jones), 280.

WHEN PROVOCATION NO DEFENSE.-Where a deliberate antecedent purpose to kill is ascertained, and there is a consequent unlawful act of killing, the immediate provocation, whatever it may be, which precedes the act, is to be thrown out of the case and goes for nothing, unless it can be shown that this purpose was abandoned before the act was done. There can be no such thing in law as a killing with malice, and also on the furor brevis of passion, and provocation furnishes no extenuation unless it produces passion. Malice excludes passion; passion presupposes the absence of malice. In law, they can not co-exist. Johnson, 23 (1 Ired.), 354.

WHEN THE RULE WHICH REJECTS THE PROVOCATION APPLIES.-Before the rule which refers the motive in killing to antecedent malice, rather than to the immediate provocation can apply, there must be something to show a particular and definite intent to kill; as if the weapon with which the party intends to kill is shown, or the time and place are fixed on and the party goes to the place at the time for the purpose of meeting his adversary and with an inteniton to kill him; so that the provocation is a mere collateral circumstance, and the intent to kill existed before and independently of it. Johnson, 47 (2 Jones), 247.

ABANDONMENT OF PURPOSE NOT PRESUMED.-There is no legal presumption that where a provocation intervenes between the expression of malice and the act of killing, the slaying was upon passion and not malice; but while the most determined purpose to kill may be repented of, and malice, however deeply settled, may be abandoned, still if the act be done which that purpose contemplated, repentance of the criminal purpose will not be presumed, and it is incumbent on the prisoner to show that he had abandoned his unlawful purpose before the act of killing. Johnson, 23 (1 Ired.), 354.

KILLING UPON A SECOND PROVOCATION PRESUMED TO BE FROM PASSION.Where a deliberate purpose to kill is ascertained, provocation will not extenuate the killing to manslaughter, although the act speedily follows upon the provocation, and before the blood, if raised to the boiling point of passion, has time to cool, if, from the adverse and deliberate expression of malice, it can be collected that the blood was not thus heated by that provocation; but if no act of killing then take place and an additional provocation be received, and thereupon the person so provoked slay his adversary, it is a fair presumption, unless the circumstances of fact show the contrary, that this superadded provocation did produce such highly excited passion, and the act of slaying proceeded from this passion. Johnson, 23 (1 Ired.), 354.

Where express malice is shown to have once existed, but a subsequent reconciliation, followed by fresh provocation, is proved, the law will refer the motive of the slayer to the recent provocation and not to the antecedent malice, unless the special circumstances of the case forbid such a presumption. Barnwell, 80-466.

Where the evidence shows a killing in a brutal and ferocious manner the killing will be attributed to a malicious disposition and not to provocation. Hunt, 134-689.

Where there is no evidence of provocation, nor of any fact or circumstance which can be considered in mitigation or excuse, a charge that there is no evidence to rebut the presumption of malice arising from the use of a deadly weapon is not erroneous. Lipscomb, 234-696.

15. MURDER.

(Decisions prior to Act of 1893.)

PREPARING DEADLY WEAPON WITH INTENTION TO USE IT.-Where one person prepares a deadly weapon with intention to use it in case he gets into a fight with another, and goes to a particular place for the purpose of meeting with him and having a conflict with him, and a fight ensues in which that other is killed, the slayer is guilty of murder because of the preconceived malice, though the deceased first assaulted him with a deadly weapon. Hogue, 51 (6 Jones), 381.

DECEASED TAKEN IN ADULTERY WITH SLAYER'S WIFE.-For a husband to slay one taken in adultery with his wife on the spot, is manslaughter; but to slay one because he had, before that time, committed adultery with his wife or because he believed he was going off with her to commit the act, is murder. Samuel, 48 (3 Jones), 74.

KILLING TO PREVENT A TRESPASS.-Where one person kills another to prevent a mere trespass on his property he is guilty of murder, whether such trespass could or could not have been otherwise prevented. McDonald 49, (4 Jones), 19.

KILLING THIRD PERSON.-If one man assails another and is about to commit an unauthorized act of violence upon him, and a third person interposes to prevent it and is killed by the assailant, it is murder. Benton, 19 (2 D. & B.), 196.

KILLING WITH MALICE THOUGH OUT OF NECESSITY.-If a man assault another with malice prepense, even though he should be driven to the wall and kill his adversary there to save his own life, he is guilty of murder in respect of his first intent. Hill, 20 (4 D. & B.), 491.

DECEASED STRIKING IN SELF-DEFENSE.-Where, after words of anger, the slayer took up an axe and approached the deceased with a present purpose and design to take his life, or do him some great bodily harm, and the deceased had sufficient grounds to believe that such was the intention of the assailant, he had a right to strike in self-defense, though the assailant was not yet in striking distance, and such striking by the deceased will not amount to a legal provocation to mitigate the killing to manslaughter. Baker, 46 (1 Jones), 267.

PRISONER RETURNING TO SEEK DECEASED.-There was evidence that the prisoner and deceased were angrily quarreling and the deceased began to pull off his coat and the prisoner being in striking distance started to draw his knife, when a bystander interfered and carried the prisoner out of the house, and prisoner rushed back into the house asking where deceased was, who answered "here," both swearing, and prisoner ran at him and fatally cut him: Held, to be murder. Smith, 77-488.

CIRCUMSTANCES IN EXTENUATION FROM STATE'S WITNESS.-It is not error for the court to refuse to charge the jury that when a prisoner relies upon extenuating circumstances to reduce the grade of the offense from murder to manslaughter or excusable homicide, and circumstances come out from the state's witnesses which tend to establish the defense, then it is the duty of the jury to consider all the evidence, and if they are not satisfied of the guilt of the prisoner beyond a reasonable doubt, they should acquit. Gooch, 94