I concur in the judgment of reversal upon the ground that there was prejudicial error in the giving of the following instruction: —
"27. `Heat of passion' as used in these instructions, means a condition of quick anger or sudden injury, engendered by real or supposed grievance suffered at the time. And in order to reduce a crime of murder in the first degree to murder in the second degree, the killing must be done upon the instant provocation is given, or so soon thereafter that the blood has not had time to cool and reason resume its sway before the mind has had time to consider the character and gravity of the act about to be done, and not from hatred or pre-existing revenge."
The evidence in the case, as shown by the majority opinion, was such as to make it exceedingly important to the defendant that the distinction between murder in the first degree and *Page 266 murder in the second degree should be clearly and precisely made known to the jury. The homicide was apparently the result of a quarrel commenced on that very day, the evidence indicating that the relations between the parties had been very friendly up to that time.
The instruction set forth above is not a correct statement of the law in this regard. To reduce a crime from murder in the first degree to murder in the second degree, it is not essential that the killing should be done upon the instant that provocation is given, or so soon thereafter that the blood has not had time to cool. If, as a matter of fact, a killing is done without deliberation, and premeditation, except in special cases mentioned in the code, of which this is not one, it is only murder in the second degree. The statements contained in this instruction would have been material in determining as between murder and manslaughter, but as between the two degrees of murder they had no place, and we are unable to say that they did not mislead the jury to the prejudice of defendant.
Under the circumstances of this case, as shown by the record, I find no other prejudicial error.
Shaw, J., and Sloss, J., concurred.