3. The provocation must be so great as to
reasonably excite passion in an ordinary
man, and cause him to act rashly and
without reflection. By the weight of au-
thority, the provocation is adequate—
(a) Where the party is assaulted violently
or with great rudeness.

(b) When an unlawful attempt is made to
arrest him.

(c) When the killing is in mutual combat,
provided no unfair advantage is taken
by the slayer, and the occasion was
not sought for the purpose of killing.
(d) Where a husband sees his wife in an
act of adultery, and kills her or her
paramour.
Under the old common

law it was necessary that he should
see the act, but this qualification has
been repudiated in late cases.

(e) Insulting words or gestures are not sufficient provocation.

(f) Mere trespass against the

land or

goods of another is not sufficient. (g) By the weight of authority, perhaps, it is for the court to determine and instruct the jury as to the adequacy of a particular provocation. But on principle, and according to the better opinion, it is a question of fact for the jury, unless the provocation is clearly inadequate.

(N. C.) 354, 35 Am. Dec. 742; Brown v. Com., 86 Va. 466.

4. Provocation does not reduce a homicide to manslaughter

(a) If the blood had actually cooled at the time the blow was given.

(b) If there was a reasonable time for cooling.

(c) Whether there was actual cooling, or a reasonable time for cooling, is ordinarily a question of fact for the jury.

257. Distinguished from Murder.

Voluntary manslaughter is distinguished from murder by the fact that it is committed, not with malice aforethought, express or implied, but in the heat of passion or heat of blood caused by reasonable provocation. When a man, in killing another, acts under the influence of sudden passion caused by a reasonable provocation, but not in necessary defense of his life, nor in order to prevent great bodily harm, the law does not excuse him because of the provocation; but it does not hold him guilty of murder. The law recognizes the fact that a man, when greatly provoked, will lose the control of his reason, and, under the influence of the passion and excitement caused by the provocation, resort to violence of which he would not be guilty

in the absence of passion. It therefore at- ́ tributės the killing to the frailty of human nature, and not to malice, and, while it does not excuse the killing altogether, it reduces it to manslaughter.323

258. Intention to Kill.

There is dictum in some of the cases to the effect that the killing must have been unintentional to constitute manslaughter. But this is not true. A homicide without justification or excuse is not murder merely because there was an intention to kill. In all

323 State v. Ferguson, 2 Hill (S. C.) 619, 27 Am. Dec. 412. And see the authorities cited in the note preceding.

"The true nature of manslaughter is that it is homicide mitigated out of tenderness to the frailty of human nature. Every man, when assailed with violence or great rudeness, is inspired with a sudden impulse of anger, which puts him upon resistance before time for cool reflection; and if, during that period, he attacks his assailant with a weapon likely to endanger life, and death ensues, it is regarded as done through heat of blood or violence of anger, and not through malice, or that cold-blooded desire for revenge which more properly constitutes the feeling, emotion, or passion of malice." Per Shaw, C. J., in Com. v. Webster, 5 Mass. 295, 52 Am. Dec. 711.

cases of voluntary manslaughter there is an actual intention to kill, or there is an intention to inflict great bodily harm, from which such an intent may be implied. It is manslaughter, and not murder, because there is no malice aforethought, not because of any absence of intention to kill.324 As was said. in a Michigan case, provocation reduces a homicide from murder to manslaughter, not because the law supposes that the passion caused thereby made the slayer unconscious

324 State v. Hill, 4 Dev. & B. (N. C.) 491, 34 Am. Dec. 396; People v. Freel, 48 Cal. 436; Maher v. People, 10 Mich. 212, 81 Am. Dec. 781, Beale's Cas. 482; Creek v. State, 24 Ind. 151; Haile v. State, 1 Swan (Tenn.) 248; Young v. State, 11 Humph. (Tenn.) 200; Brown v. Com., 86 Va. 466.

"We nowhere ind that the passion which in law rebuts the imputation of malice must be so overpowering as for the time to shut out knowledge, and destroy volition. All the writers concur in representing this indulgence of the law to be a condescension to the frailty of the human frame, which, during the furor brevis, renders a man deaf to the voice of reason, so that, although the act done was intentional of death, it was not the result of malignity of heart, but imputable to human infirmity." State v. Hill, 4 Dev. & B. (N. C.) 491, 34 Am. Dec. 396.

of what he was about to do, but because it presumes that it disturbed the sway of reason. It does not regard him as temporarily deprived of intellect, and, therefore, not an accountable being, but as one in whom the exercise of judgment was impeded by the violence of excitement, and accountable, therefore, as an infirm human being.325

259. Absence of Malice.

Voluntary manslaughter, though intentional, is a killing without malice aforethought. As was stated in defining the offense, it is the absence of malice that distinguishes it from murder. No provocation, however grievous, will reduce a voluntary homicide to manslaughter, if the circumstances show that the slayer acted, not in the heat of blood, but from malice.326 "There can be no such thing in law as a killing with

Maher v. People, 10
To hold, as was said

325 Per Christiancy, J., in Mich. 212, 81 Am. Dec. 781. by Judge Christiancy in this case, that the reason must be entirely dethroned or overcome by passion, so as to destroy intelligent volition, would require such a degree of mental disturbance as is equivalent to utter insanity, and this would render the accused altogether innocent, whereas manslaughter is a very grievous felony, only a