delivered the opinion of the court.
The court should have instructed the jury as requested by appellant, that the offense was manslaughter and not murder, if they believed from the evidence it was committed without malice and in t"he heat of passion, produced by the provocation shown in the *533record. It is true that appellant’s wife was the aggressor in the ■difficulty, but all the witnesses concur in saying that she attacked ■deceased with her hands, and manifested no purpose to fight otherwise, or to kill or do great personal injury. Her assault was returned by deceased with a weapon of such character and with a degree of violence so disproportionate to the aggression, that it «hanged the nature of the combat, and if without time for passion to cool, she had slain deceased, it would have been manslaughter and not murder. 2 Bish. Or. L., § 702 ; The State v. Hill, 4 Dev. & Bat. 491.
Under these circumstances appellant saw his wife retiring from the contest with her face and the front of her dress covered with blood, and he thereupon shot and killed deceased. The judgment which assumed absolutely that this was murder, and could be nothing else, and which refused to permit the jury to consider whether it was murder or manslaughter, was erroneous. The provocation was adequate, and the time which elapsed between it and the killing was so brief as to render it, at least, a proper question for the determination of the jury, notwithstanding the previous threats made by appellant, whether in the commission of the act he was impelled by the heat of passion occasioned by the provo-•eation or by previous malice. Whether the homicide was referable to previous malice and threats made by appellant, or to the provocation which occurred immediately before the killing, was not a question of law to be decided by the court, but one of fact, to be resolved by the jury. Cannon v. The State, 57 Miss. 147.
The judgment is reversed a/nd the cause remanded for further pro-ceedings.