#### STATE v. HENRY SIZEMORE.

Wha't is time io cool between the occurring of a legal provocation, and the in-1 dieting of a mortal blow, is a question of law and it is error to leave it to be passed on by the jury.

It is not necessary that a blow, in order to amount to legal pro vocation, should bo one that endangered the life of the slayer.

A hypothesis, as to the motives of the accused in striking a fatal blow, submitted to the jury by the Court without sufficient evidence to justify it, is error.

Indictment for the murder of one Nimrod Elliott, tried before Bailey, J,, at the Fall Term, 1859, of McDowell Superior Court.

The evidence was, that J. L. Aired, Henry Aired, John Grice and others, were working in a pit for gold, and that the prisoner and the deceased, both intoxicated, came to where they were, bringing with them a jug of spirituous liquor; that the party shortly after the arrival of the two, (Elliott and 'Sizemore,) all engaged in scuffling and throwing clods of dirt at each other, which seemed to be in the way of amusement, and without anger; that the prisoner then said to J. L. Aired, “ the first thing yon know you will get a d — d whipping,” to which the deceased replied, “you will not whip John here;” that the prisoner, the deceased, and. the witnesses, drank of *207the spirits, and seemed to be friendly; that the deceased their said, the prisoner had come by to whip John Aired for swearing to a lie against him, to which the prisoner said that was a lie, for that he, the deceased, had said it, and the two disputed about this for some time; that the prisoner then rubbed his.fist in the face of the deceased, and chucked him under the chin, on which, the deceased said, “if the prisoner struck him he would whip him;” that, thereupon, the prisoner jerked off the hat of the deceased, slapped it in his face., put both hands against him and pushed him, on which the' deceased told the prisoner 1jhat “he said he could whip John Aired, and that Aired should whip him if he wanted to do so.” It was further in evidence that J. Aired told them to leave, for that he wanted no fuss, and went into the pit; that the prisoner said to John Aired, “if you take it up and will come out, I will give you a whipping;” upon which, J. Aired told him again to leave, and an altercation ensued between J. L. Aired and the prisoner, which proceeded till Aired threw an old axe at the prisoner, which struck him in the stomach; that the prisoner then told Aired he ought not to have thrown the axe at him, for the deceased had told the lie; that the prisoner then took up the axe which was taken away from him by Henry Aired, when he jumped back for his gun, which he got hold of, when the witness, J. L. Aired, ran out of the pit with a shovel in his hands; that John Grice then took the gun from the prisoner, and the deceased took the shovel from Aired-, and said, “ have no fuss;” that Grice then told John Aired to go down into the pit, and he would make them leave, which Aired did; that Grice then told the prisoner to leave, and that the latter had his hand upon his stomach, and was complaining and crying, and said that John ought not to have hit him with the axe; that the prisoner took up his gun and shot-pouch, and said, “Nimrod Elliott, .if you follow’ me, I will put a ball through you;” that he was walking backwards with his gun held towards the deceased, when this was said ; that after he had gone backwards about thirty feet, the deceased threw a shovel at the prisoner, when the. *208latter immediately fired and gave the mortal wound.’ Elliott died very shortly after receiving the wound, and the prisoner ran off, but was soon apprehended, when “ he said he had killed the d — d dog, and had always wanted to, for he had thrown up stealing to him.” t

One of the witnesses swore that from the time the prisoner was struck with the axe by Aired, till the deceased was shot, was about five or six minutes.

Another witness, Grice, stated that “it all occurred in as short a time as could have been.”

The Court charged the jury that if, at the time the prisoner shot, he was smarting under the blow, he had received from the axe, and there had not been time to cool, that this would he, in law, a legal provocation, provided the deceased was aiding and abetting John Aired in throwing the axe.

SJndly. That if, at the time he was walking backwards with his gun in his hands, the deceased threw the shovel at him, which endangered his life, and in consequence of it, he shot the deceased, it would be a case of manslaughter, as the counsel contended; but that if they should be satisfied he had determined to kill, and used the expression, “if you follow me, I will shoot you,” to induce .the deceased to follow, and he killed him, it would be a case of murder.

The defendant’s counsel excepted to these instructions for error.

The jury found the defendant guilty of murder, and sentence being pronounced, the defendant appealed..

Attorney General, for the State.

No counsel appeared for the defendant in this Court.

Pearson, C. J.

There is error in the instructions given to the jury:

> 1. “ If, at the time the prisoner shot, he was smarting under the blow he had received from the axe, and there had not been time to cool, this would be, in law, a legal provocation, &c.” What is time to cool, is a question for the Court, and *209his Honor ought to have instructed the jury, whether, according to the facts of the case, there was, or was not, in contemplation of law, time for the passions to cool; consequently it was error to leave that question to be passed on by the jury.

> 2. “ If, at the time he was walking backwards, with his gun in his hands, the deceased threw the shovel at him, which endangered his Ufa, and in consequence of it, he shot the deceased, it would be a case of manslaughter.” According to the doctrine of homicide, it is not necessary that the life of the party should be endangered by the assault or blow, in order to mitigate the killing, and make the offense manslaughter. The mitigation is allowed, not because of the danger in which the party is put, but because the fv/ror brevis is presumed to be excited by a legal provocation, and the law imputes the killing to sudden passion, and not to malice prepense.

> 3. “ If the jury should be satisfied that the prisoner had determined to kill, and used the expression, “ If you follow me, I’ll shoot you,” to induce the deceased to follow, it would be a case of murder.”

After a careful examination of the testimony, we are unato see any evidence to support this view of the case, and was error to submit it to the jury. The prisoner had been struck a violent blow with an axe, and was in the act of start-off, going backwards for fear of being struck; the deceashad the shovel; the prisoner said, “ if you follow me, I’ll shoot you,” the deceased then threw the shovel at him, and fired the gun. Can there be any ground to support the inference, that the prisoner gave this warning deceitfully, and the purpose of inducing the deceased to follow him ? We think not, and although the words used by the prisoner after killing, tended to show malice prepense, it' did not tend to support this view of the case. We think his Honor ought have instructed the jury, that if the evidence was believed, killing was manslaughter ; unless they were satisfied, that prisoner had formed a determination, beforehand, to kill deceased, and sought this occasion to effect his purpose, *210and if so, it was murder; and, it would have been proper, in reference to what the prisoner said after the act, to call attention to the difference between threats, deliberately made, beforehand, and words used afterwards in a' state of excitement.

Per Curiam,

Judgment reversed and a venire de novo.