Page:Dakota Territory Reports.djvu/482

 far from an even poise, he must be able to say that he feels an abiding conviction to a moral certainty of the truth of the charge. The instruction under consideration, in our judgment, laid down a very different rule, and one which cannot be sustained either on principle or authority.

The facts of the homicide in this case may be briefly stated as follows: The deceased, John D. Massingal, a soldier, was on the evening of the 25th of December, 1876, in defendant's place of business, a saloon, in the town of Bismarck, with several of his comrades. After some talk in which the deceased spoke about fighting, but not directing his remarks to any particular individual, spoke of defendant's place as a fraud, etc., he and the defendant engaged in what appears to have been a mutual combat, in which the deceased pushed defendant to the wall and struck him several times over the head; the defendant finally got loose, went into the back room, and in a moment or two, as stated by one witness, returned with a revolver and shot the deceased while he was standing by the stove, firing three times, twice before he fell and once after he fell. At the second shot the deceased fell; and as he fell he exclaimed, "Oh I my God!" when the defendant said, "this is a damned pretty time to beg," and fired the third shot which took effect in the back. There is nothing in the record to show any former grudge or quarrel. There is some contradictory evidence as to the use of a slung shot, and as to deceased having kicked one of the female inmates of the house, and as to some threats made by deceased, which we do not consider necessary to notice.

Under this evidence the defendant asked the Court to instruct the jury as follows: "I charge you as a matter of law, that there was not sufficient cooling time between the first assault and the shooting, and that it was all one transaction, and must be taken together." We think the question is here fairly presented by the record, could this homicide be considered to amount to anything more than manslaughter? Or in other words, was it committed in the heat of passion, upon a sudden and sufficient provocation? and if so, was there time for the blood to cool? Whether it was so committed was a question for the jury under proper instructions.