In a prosecution for murder, whenever the evidence may tend, by any legitimate deduction, to establish the fact that although the homicide was voluntary, yet it was committed under the immediate influence of sudden passion, arising from a serious personal conflict in which great injury was inflicted by the person killed, by means of weapons, or other instruments of violence, or bjr means of great superiority of personal strength, it is the duty of the court to instruct the jury as to the grade of manslaughter, t notwithstanding the person guilty of the homicide was the aggressor, provided such aggression was not made with intent to bring on a conflict, and for the purpose of killing. Penal Code, arts. 593, 597.
What amount of injury must be inflicted to produce the adequate cause specified in the statute, or what disparity of personal strength between the combatants must exist, cannot be fixed by any definite general rule, but must depend upon the particular circumstances of each particular case. Our law seems to fix the limits between an assault and battery so slight as to show no intention to inflict pain or injury, which is not an adequate cause, and a serious personal conflict in which great injury is inflicted in some manner by the deceased, which is pronounced adequate provided it be sufficient to produce and does actually produce such a degree of anger, rage, resentment, or terror in a person of
Tested by these principles, we are of opinion that the facts in evidence required that the jury should be fully instructed as to the law of manslaughter, and the omission of the court to give such instruction will require the reversal of the judgment. While there seems to have been some antecedent feeling between the deceased and the defendant, arising from their being suitors to the .same lady, this feeling seems to have been principally, if not altogether, on the part of the deceased, the discarded suitor. The meeting on the morning of the difficulty appears to have been rather casual than designed, and certain portions of the testimony tend to indicate that the deceased went toward where defendant Avas travelling along the road, in company with others, and stopped upon meeting the defendant, when a conversation was held betAveen them, the others in company with the defendant having passed on. Soon after-wards loud cursing was heard by them, and then three shots ; and on returning to Avhere the deceased and defendant had ■ been left, it was found that the .deceased was sitting on the side of the road, shot in the breast, and the defendant was
The fact that defendant had borrowed a pistol a day or two before, ostensibly to carry with him on a trip to the West, and that no arms were found upon the deceased, and no evidence of a conflict was apparent upon the ground,— which the evidence shows was not of that character which readily received and retained impressions from the human foot, — were circumstances proper to be considered by the jury in connection with the other facts in evidence, but did not authorize the court to withdraw from the jury a consideration of the issues arising at the very time of the difficulty, and which might legitimately tend to induce the inference upon the part of the jury that the defendant might be guilty of the lesser rather than the graver grade of homicide.
The judgment is reversed and the cause remanded.
Reversed and remanded.