Page:Dakota Territory Reports.djvu/483

 On the point of cooling time, as to whether it is a question of law for the court, or one of fact for the jury, the authorites are in seeming conflict. Bishop, (2 Criminal Law, § 712,) says: "But though each case is to be decided by its circumstances, the question is one of law, whether in the particular circumstances, the blood has had sufficient cooling time." And in the section following, he says: "The doctrine, let it be repeated, is, that the question, 'what is a sufficient cooling time?' and the question of 'what is a sufficient provocation?' are both of law, not of fact," and citing in support of the doctrine, numerous English and American cases. And Wharton, (Grim. Law, § 984,) uses this language: "Under such provocations as these, it has been said that whether the blood had time to cool or not, is a question for the court, and not for the jury," citing State v. Sizemore, 7 Jones, (N. C.) 206. No precise or definite rule can be laid down as to the time within which the blood should cool. Each case must be governed by its own circumstances; the character and temperament of the man; the nature and degree of the provocation, etc.; but if we should adopt the rule that it is a question of law for the Court, and the Court's attention having been directed to the point, he should have charged the jury thereon; if he thought there had been sufficient cooling time, he should have told the jury so. But we are of the opinion that the Judge who tried the cause below would scarcely have been willing to assume the responsibility of telling the jury that blows were not a sufficient provocation, if they found the fatal shot was fired in a passion engendered thereby, or that two or three moments were a sufficient time in which the blood might cool. That the homicide was perpetrated with a deadly weapon, does not, ex necessitati, swell the homicide to the degree of murder. While our statute defines homicide to be manslaughter when perpetrated without a design to effect death, still, if it was perpetrated in the heat of passion, engendered by a sudden and sufficient provocation, even though the defendant at the instant, and in his frenzy, intended to take life, the law, in its tender regard for human frailties, will interpose and say there was no intent,