and that it is for the jury to say whether such provocation was given, whether it caused heat of blood, and whether the homicide was committed in the heat of blood.361 And there are cases in this country to the same effect.362 The soundness of this view is more than doubtful, and there are well-considered cases both in England and in this country to the effect that the adequacy of any act of provocation to arouse passion in an ordinarily reasonable man, which all agree to be the test, is essentially a question for the jury, unless it is so clearly inadequate as to admit of no reasonable doubt upon any theory.363 As

361 Reg. v. Fisher, 8 Car. & P. 182; Reg. v. Kelly, 2 Car. & K. 814. Thus, in Reg. v. Fisher and Reg. v. Kelly, supra, the jury were instructed, as a matter of law, that a wife's adultery was not sufficient provocation to the husband, where he did not see the act.

362 State v. John, 8 Ired. (N. C.) 330. In this case it was held as a matter of law that a wife's adultery was not sufficient provocation to the husband where he did not see the act.

363 Reg. v. Welch, 11 Cox, C. C. 336, Beale's Cas. 479; Reg. v. Rothwell, 12 Cox, C. C. 145, Beale's Cas. 481; Maher v. People, 10 Mich. 212, 81 Am. Dec. 781, Beale's Cas. 482; State v. Grugin, 147 Mo. 39, 47 S. W. 1058, Mikell's Cas. 625; Hooks v. State, 99 Ala. 166, 13 So. 767.

In Maher v. People, supra, it was said by Judge Christiancy: "It is doubtless, in one sense, the province of the court to define what, in law, will constitute a reasonable or adequate provocation, but not, I think, in ordinary cases, to determine whether the provocation proved in the particular case is sufficient or reasonable. This is essentially a question of fact, and to be decided with reference to the peculiar facts of each particular case. As a general rule, the court, after informing the jury to what extent the passions must be aroused, and reason obscured, to render the homicide manslaughter, should inform them that the provocation must be one, the tendency of which would be to produce such a degree of excitement and disturbance in the minds of ordinary men; and if they should find that it did produce that effect in the particular instance, and that the homicide was the result of such provocation, it would give it the character of manslaughter."

It was further said: "Besides the consideration that the question is essentially one of fact, jurors, from the mode of their selection, coming from the various classes and occupations of society, and conversant with the practical affairs of life, are much better qualified to judge of the sufficiency and tendency of a given provocation, and

was 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

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

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 another when laboring under great excitement. His counsel offered to prove, for the purpose of showing provocation, that the person assaulted 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 followed them, and, after they had separated, went into a saloon after the person assaulted, and instantly shot him, and that, a few minutes before he entered the saloon, a friend told him that his wife and the person assaulted 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 assault with intent to murder, the judgment was reversed on the ground that it was 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.

these circumstances show the exercise of reason and judgment. 365

(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 the time within which an ordinarily reasonable man would cool under like circumstan

ces.

In applying this test, all the circumstances attending the homicide are to be taken into consideration, including the

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 fatal stroke giv. en, 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, J. Kelyng, 53, Beale's Cas. 473; State v. McCants, 1 Speers (S. C.) 384, Mikell's Cas. 621 (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, Mikell's Cas. 618; Kilpatrick v. Com., 31 Pa. 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. "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 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, Mikell's Cas. 621; Kilpatrick v. Com., 31 Pa. 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 cooled or not. Hawkins v. State, 25 Ga. 207, 71 Am. Dec. 166.

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."368

(c) Question of Law or Fact.-Some of 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

262. Definition.-Involuntary manslaughter is a homicide committed unintentionally, but without excuse, and not under such circumstances as to raise the implication of malice.371 It may arise

1. From malfeasance, or the doing of a criminal act not amounting to a felony, nor naturally tending to cause death or great bodily harm.

368 State v. McCants, 1 Speers (S. C.) 384, Mikell's Cas. 621. 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, Mikell's Cas. 621.

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, 13 So. 767.

2. From misfeasance, or the doing of a lawful act with

gross negligence.

3. From nonfeasance, or the omission to perform a legal duty under circumstances showing gross negligence. The absence of an intent to kill or to inflict great bodily harm distinguishes involuntary manslaughter from voluntary manslaughter. It is distinguished from murder in that there is no malice, either express or implied, that is, no actual intent to kill or inflict great bodily harm, nor circumstances from which malice will be implied, as the doing of an act dangerous to life, or the commission of a felony, or resistance of a lawful arrest. It is distinguished from excusable homicide by accident by the fact that the killing results from doing a criminal

act.

263. Malfeasance.

(a) In General.—An unintentional homicide in the doing of a criminal act not amounting to a felony, nor naturally tending to cause death or great bodily harm, is generally manslaugh

As we have seen, it is murder to unintentionally kill another in committing, or attempting to commit, some felony, as burglary, rape, arson, or robbery, or by doing an act which has a natural tendency to cause death or great bodily harm, because in such cases the law implies malice from the nature of the act,373

371 See Wild's Case, 2 Lewin, C. C. 214, Beale's Cas. 347; Reg. v. Towers, 12 Cox, C. C. 530, Beale's Cas. 425; Mirror of Justices (Sel. Soc.) c. 15, Mikell's Cas. 215; State v. Benham, 23 Iowa, 154, 92 Am. Dec. 417; Keenan v. State, 8 Wis. 132; People v. Stubenvoll, 62 Mich. 329, 28 N. W. 883.

372 Reg. v. Towers, 12 Cox, C. C. 530, Beale's Cas. 245; Reg. v. Bradshaw, 14 Cox, C. C. 83, Beale's Cas. 146; State v. Benham, 23 Iowa, 154, 92 Am. Dec. 417. See, also, People v. Stubenvoll, 62 Mich. 329, 28 N. W. 883; Rex v. Sullivan, 7 Car. & P. 641.

373 Ante, §§ 244, 248.

C. & M. Crimes-24.