The facts of this case presented a proper question for the consideration of the jury as to whether the homicide was murder or manslaughter. The instruction challenged did not, when taken in connection with the other parts of the charge, present the law inaccurately, for theretofore the judge had charged, substantially, that premeditation was necessary to the crime of murder; and also, quoting from some authority, that 'voluntary manslaughter is the unlawful killing of another without malice, upon sudden quarrel, or in the heat of passion;' and, further, that 'the law, kindly appreciating the infirmities of human nature, extenuates the offense committed, and mercifully hesitates to put on the same footing of guilt the cool, deliberate act and the result of hasty passion.' In the language complained of, he goes on to say that mere passion does not reduce the crime from murder to manslaughter, for it may be a passion voluntarily created for the purpose of homicide; but it must spring from some wrongful act of the party slain at the time of the homicide, or so near theretofore as to give no time for passion to cool. Applying the rule to the facts in evidence, the instruction was that if the defendant, in a moment of passion, aroused by the wrongful treatment of his brother, and without any previous preparation did the shooting, the offense would be manslaughter, and not murder; but, as is immediately thereafter added, if he prepared himself to kill, and had a previous purpose to do so, then the mere fact of passion would not reduce the crime below murder.
We see nothing in this of which the defendant can properly complain, and, as this is the only matter called to our attention. the judgment of the circuit court must be affirmed.
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