Appellant complains by motion and in oral argument that the evidence having raised the issue of statutory adequate cause, viz: an assault causing pain or bloodshed, that it was error for the court to leave it for the jury to determine whether the facts constituted adequate cause. We readily agree that if the court had done this it would have been error. The learned trial judge was of opinion that facts were in evidence independent of an assault causing pain or bloodshed and regardless of that issue, from which the jury might determine that adequate cause existed. Upon the subject he charged generally in the following language:
"(d) Insulting words or gestures, or an assault and battery so slight as to show no intention to inflict pain or injury are not deemed adequate causes, but an assault and battery causing pain or bloodshed is deemed adequate cause.
"(e) You are charged that any fact or facts or circumstances or condition which is capable of creating and does create sudden passion, such as anger, rage, sudden resentment or terror in a person of ordinary temper, rendering the mind incapable of cool reflection, would be adequate cause, and in the event several of such circumstances or conditions should be found by you to exist in this case, *Page 311 though no one of them alone might be found by you to be sufficient to constitute adequate cause, if all taken together might be sufficient it is for you to say under all the evidence in the case, whether adequate cause existed and whether if it did exist, the mind of the defendant was thereby rendered incapable of cool reflection by the passion thereby engendered at the time of the killing."
It will be seen that in sub-division (d) the court told the jury positively that an assault causing pain or bloodshed was adequate cause. We do not place upon sub-division (e) the same construction as appellant. It seems clear therefrom that the court was advising the jury that it was their province to find whether "adequate cause" existed; that is, the jury was to find whether an assault causing pain or bloodshed had been made upon appellant, or whether there were other circumstances or conditions present which amounted to adequate cause. However, the court did not leave the subject with the general statement of the law as quoted but in applying the law he made it so plain that it was impossible for the jury to have misunderstood it. In paragraph 14 of the charge the jury was told if they found that appellant killed deceased, but "if you further believe, or have a reasonable doubt thereof, that the defendant Ben H. Collins, was then and there under the immediate influence of passion aroused by reason of an assault and battery causing him pain or bloodshed, having been committed on him by the said Frank M. Howard, or by any other adequate cause, as adequate cause has been hereinbefore defined to you," then appellant would be guilty of manslaughter only. We fail to see how in clearer language the court could have conveyed to the jury the law relative to the matter.
The motion for rehearing is overruled.
Overruled.