woods, and that the prisoner followed them, and went in hot pursuit after Hunt to the saloon, and was informed by a friend on the way that they had committed adultery the day before in the woods. I can not resist the conviction that this would have been sufficient evidence of provocation to go to the jury, and from which, when taken in connection with the excitement and 'great perspiration' exhibited on entering the saloon, the hasty manner in which he approached and fired the pistol at Hunt, it would have been competent for the jury to find that the act was committed in consequence of the passion excited by the provocation, and in a state of mind which, within the principle already explained, would have given to the homicide, had death ensued, the character of manslaughter only. In holding otherwise the court below was doubtless guided by those cases in which courts have arbitrarily assumed to take the question from the jury, and to decide upon the facts or some particular fact of the case, whether a sufficient provocation had been shown, and what was a reasonable time for cooling."

§ 102. What is cooling time. As the provocation mitigates the offense only in case the act is done while reason is obscured and overcome by the passions, the difficult question in the case often is whether the act was done within sufficient time after the provocation was given. In speaking on this point, in the case last above cited, Mr. Justice Christiancy said:

"The same principles which govern, as to the extent to which the passions must be excited and reason disturbed, apply with equal force to the time during which its contin

uance may be recognized as a ground for mitigating the homicide to the degree of manslaughter, or, in other words, to the question of cooling time. This, like the provocation itself, 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, the extent to which the passions have been aroused, and the fact whether the injury inflicted by the provocation is more or less permanent or irreparable. The passion excited by a blow received in a sudden quarrel, though perhaps equally violent for the moment, would be likely much sooner to subside than if aroused by a rape committed upon a sister or a daughter, or the discovery of an adulterous intercourse with a wife; and no two cases of the latter kind would be likely to be identical in all their circumstances of provocation. No precise time, therefore, in hours or minutes, can be laid down by the court, as a rule of law, within which the passions must be held to have subsided and reason to have resumed its control, without setting at defiance the laws of man's nature, and ignoring the very principle on which provocation and passion are allowed to be shown, at all, in mitigation of the offense. The question is one of reasonable time, depending upon all the circumstances of the particular case; and where the law has not defined, and cannot without gross injustice define, the precise time which shall be deemed reasonable, as it has with respect to notice of the dishonor of commercial paper. In such case, where the law has defined what shall be reasonable time, the question of such reasonable time, the facts being found by the jury, is one of law for

the court, but in all other cases it is a question of fact for the jury; and the court cannot take it from the jury, by assuming to decide it as a question of law, without confounding the respective provinces of the court and jury.

I am aware there are many cases in which it has been held a question of law, but I can see no principle on which such a rule can rest. The court should, I think, define to the jury the principles upon which the question is to be decided, and leave them to determine whether the time was reasonable under all the circumstances of the particular case. I do not mean to say that the time may not be so great as to enable the court to determine that it is sufficient for the passion to have cooled, or so to instruct the jury, without error; but the case should be very clear."

§ 103. Involuntary manslaughter. Involuntary manslaughter is unintentional homicide while engaged in doing an unlawful act not in itself sufficient to supply the implied malice to make the act murder. The unlawful act may be mere negligence in doing an act otherwise lawful, for example driving at a reckless pace in the street, operating machinery in a dangerous manner or without the precautions which ordinary prudence would indicate to be necessary, allowing a vicious bull to run at large, and so forth. A physician who gives medicine with the intent to cure is not liable criminally if it results fatally unless he was so grossly negligent or ignorant of matters of common knowledge in his profession that he should have known it would be likely to prove fatal. The caution which the law requires in all these cases is not the utmost

degree which can possibly be used, but such reasonable care as is used in the like cases, and has been found, by long experience, to answer the end. Wharton, in his treatise on Criminal Law (page 382), says: "There are many cases in which death is the result of an occurrence in itself unexpected, but which arose from negligence or inattention. How far, in such cases, the agent of such misfortune is to be held responsible, depends upon the inquiry whether he was guilty of gross negligence at the time. Inferences of guilt are not to be drawn from remote causes, and the degree of caution requisite to bring the case within the limits of misadventure must be proportioned to the probability of danger attending the act immediately conducive to the death."

§ 104. Same: Illustration. The rule in such cases is well illustrated by a case that arose in Iowa. The defendant was a boarder in the family of one Gantz. On the day of the homicide, Mrs. Sutfen, a neighbor, called at the house, and after some friendly conversation, she went into the kitchen. When she came back defendant picked up a tack hammer and struck on the door. She said, "My God, I thought it was a revolver." A short time afterwards she went into the yard to get a kitten. Defendant said he would frighten her with the revolver as she came in. He took a revolver from a stand drawer and went out of the room, and was in the kitchen when the revolver was discharged. He immediately came in and said to Mrs. Gantz, his sister, "My God, Hannah, come and see what I have done." His sister went out and found Mrs. Sutfen lying on the sidewalk at the side of the house, with a gun

shot wound in the head, and in a dying condition. The revolver had been in the house for about five years. It was found by Gantz in the road. There was one load in it when found. Some six months after it was found Gantz tried to shoot the load from it and it would not go off. He tried to punch the load out, but could not move it. He then laid it away, thinking it was harmless. The defendant was about the house and knew the condition of the revolver. Upon one occasion Gantz said he would try to kill a cat with the revolver. Defendant being present said he would not be afraid to allow it to be snapped at him all day. The revolver remained in the same condition that it was when found, no other load having been put into it, and it was considered by the family as well as defendant as entirely harmless. The State did not claim that the defendant was guilty of murder, but that he was guilty of manslaughter because of criminal carelessness. The defendant insisted that there was no such carelessness as to render the act criminal, and that it was homicide by misadventure, and therefore excusable. The court instructed the jury that if they found the facts above stated there was criminal negligence and the defendant was guilty of manslaughter. The supreme court sustained the conviction as proper (8).

§ 105. The evidence and proof in homicide cases. In order to convict there must be proof that someone is dead, -that death was criminally induced, and that the accused is the guilty party. The burden is on the prosecution to establish these facts and all of them to a moral certainty,

(8) State v. Hardie, 47 Iowa 647.