We think his Honor erred in refusing the sixth prayer for specific instructions, to-wit: That the evidence discloses that there was not sufficient cooling time between the fights.
The whole testimony shows that there was a sudden quarrel resulting in blows with the fists; that at length the combatants separated, and the evidence as to the length of time they were separated is first by the witness, Sarah Ann Davidson, witness for State, who says that "the prisoner was absent but no time." William Smith, another witness for the State, testified that he saw the parties fighting; deceased told witness to go home, and witness started back; prisoner and deceased had separated; witness looked back and saw they were fighting again, then heard the deceased say that the prisoner had killed him.
It is well settled in our State that the question of cooling time is a question of law to be decided by the Court, and not a question for the jury. It is also settled that if such a question is left to the jury, and they decided the question as the Court should have decided it, this error forms no cause for a new trial. So the question is distinctly raised, does the evidence show that in law there was sufficient cooling time? The Court here are of opinion there was not sufficient cooling time. The two witnesses for the State and the only ones that testified upon this question state the fact that the prisoner was absent no time, in other words, the separation was so short that she could not compute the time, and the other witness says the prisoner and the deceased were separated and deceased desired witness to go home, *Page 271 that he started, that he looked back and they were again engaged in the fight. It seems to the Court that this testimony does not show that there was a sufficient time during the separation for the passions excited by the fight to have subsided, and reason to have resumed its sway, and on this ground there must be a venire de novo.
This renders it unnecessary to notice the other questions made in the case.
PER CURIAM. Venire de novo.