The state contends in its motion that we erred in holding the charge on adequate cause too restrictive. The court's charge on adequate cause is plainly so confusing and restrictive as to be capable of great harm. While same did in words tell the jury that they must consider all the facts and circumstances in the case in determining the adequacy of the provocation, yet in immediate connection therewith and as part of the same paragraph the court said:
"* * * and if you find that by reason of anything the deceased did at the time or by reason of anything the deceased and Ben *Page 116 Long did at the time, or by reason of any threat or threats made by the deceased or by said Ben Long made to the defendant, if any, at the time, that the defendant's mind at the time of the killing was incapable of cool reflection and that said facts and circumstances, if any, were sufficient to produce such state of mind in a person of ordinary temper, then the proof as to the sufficiency of the provocation satisfies the requirements of the law in this regard."
When the facts of a case show, as in this one, the presence of other prior facts and circumstances which might cause or contribute to produce the passion, excitement, etc., deemed by our statute to be adequate cause, and the possible acts of persons other than those named, the court should not in whole or in part restrict the jury's consideration of same to what occurs at the time, nor to the acts of the specified persons. As stated in the original opinion, threats and acts of said parties at other times and places were in evidence and might be considered by the jury in connection with what occurred at the time, in determining the question of adequate cause.
The motion for rehearing is overruled.
Overruled.