In Eggler v. People, 56 N. Y. 642, there was also a conviction for murder. In this case, at the trial, proof of the general character of the deceased for violence was received. The prisoner offered to show specific acts of violence in addition, which offer was rejected, and the court of appeals held the rejection right. In Blake v. People, 73 N. Y. 586, also a case of murder, the prisoner, by the cross-examination of one of the witnesses for the people, sought to prove that the deceased was a quarrelsome and dangerous man. The court refused to receive the testimony at that time. It was held by the court of appeals that the court committed no error in rejecting the evidence in that way; "it being the introduction of a new subject as matter of defense, it was simply a question as to the order of proof, which was in the discretion of the court." While thus, it will be seen, that is no direct decision upon the question, the weight of authorities seem to call for the admission of the testimony in this case. In People v. Lamb, 2 Keyes, 371, Judge Davies recognizes an exception to the general rule that the character of the deceased is not a question to be raised upon trials for murder. There is no right given to kill any man because of his character. When, however, the character of the deceased is a material part to be considered in determining the guilt of the accused, it is to be received like other facts; and if such evidence is rejected improperly, then it furnishes a case where all the evidence was not before the jury, and an improper rejection of evidence is ground for reversal. People v. Stokes, 53 N. Y. 164. The prisoner has the right to have all competent evidence in his favor considered, and its rejection cannot be overlooked. In People v. Lamb, supra, Judge Davies classes among the exceptions to the general rule that the character of deceased is not a subject of inquiry, cases where the assault was first commenced by deceased, and the claim of the prisoner is that the killing was in self-defense.

It may be stated as the general rule sustained by several recent decisions and founded on manifest justice, that in trials for homicide or in cases of aggravated assault, for the accused to show the hectoring disposition of the deceased, his tendency to brawls, his great muscular strength, and his violent demeanor, especially when under the influence of liquor.

It must further appear that these characteristics were known to the accused at the time of the affray, such evidence being the case

it is an important circumstance from which the jury may determine the nature of the assault, and the course of treatment the accused had reason to expect from his assailant. State v. Collins, 32 Iowa, 36; State v. Keene, 50 Mo. 357; Hurd v. People, 25 Mich. 405.

§ 366. Vacillation in the Authorities.-A critical examination of the reports will disclose great vacillation as to the admissibility of this species of evidence. The question is one of great importance, and of constantly recurring interest in criminal proceedings. The supreme court of Missouri, through Wagner, J., who wrote for reversal, has influenced this phase of our subject by a very able opinion, which will illustrate the tendency of the American judiciary on this subject. I subjoin the opinion entire.

§ 367. Pertinent Illustration of a Missouri Case.-"The defendant was indicted for killing one Evans. It seems that the defendant had been on terms of amity and good will with Evans till the day before the killing took place. On that day, they met at the house of a friend, together with other company, when the defendant treated Evans with friendship and civility. But Evans had ascertained that the defendant was engaged to be married to a niece of his wife, and was greatly enraged about it, and instead of returning the kind treatment of the defendant, he violently assaulted him with a pistol and knife, and swore that he would kill him, nothing but his blood would satisfy him.

"Through the intercession of friends, he was kept from carrying out his purpose; but the defendant, in order to save himself from violence and death, was obliged to make his escape from a back door. After this occurrence, Evans renewed his threats-declared that he would make no compromise in reference to the matterthat he would kill defendant on sight, if it was the last act of his life. These threats were communicated to the defendant the same evening.

"It further appears that on the morning of the occurrence above referred to, Evans hallooed to the defendant, saying to him that he was a 'damned cowardly son of a bitch, and that if he would come up there he would thrash hell out of him, and that he intended to kill him if he married his niece.' The only answer defendant made to his abuse, was to ask Evans what he wanted to kill him for. On his arrival at home, defendant went to his stable to put his horse up, and whilst he was still at his stable,

Evans rode up. Evans went into a store across the street from the stable. Defendant wanted to go into the store, but he was warned not to do so, as he would be in danger of his life if he met Evans. Defendant then stayed in the stable, and sent friends to have an interview with Evans, for the purpose of trying to arrange the difficulty. But Evans was obdurate; he would abate nothing of his hatred and his desire for blood, and the life of defendant only would satisfy him. Evans then came out on the street, and was in fierce altercation with the persons around him, when the defendant fired the shot from which he afterward died.

"At the trial, the court excluded all evidence of what occurred on the day previous to the killing, and the threats made by the deceased in reference to his intention to kill the defendant. In this, the court unquestionably erred. This whole transaction, and all the matters connected with the difficulty, are so nearly allied that it is impossible to separate them. From the inception to the fatal consummation, less than twenty-four hours intervened. The threats continued down, uninterruptedly, and were all nearly coeval with the killing, and they were all brought home to the knowledge of the party who did the slaying. They constituted the chain of one continued hostile series of facts by the deceased, down to the time he was shot. That they had created a dread in the breast of the defendant, that he was in danger of losing his life, there can be no doubt, that the evidence was admissible to show the reasonableness of his fears." State v. Sloan, 47 Mo. 604.

§ 368. Views of the Virginia Court.-There are comparatively few reported cases that contain such abundant dicta upon this subject of threats or antecedent grudge, as a well considered case decided by the supreme court of appeals of Virginia in 1872. The decision was by a divided court, which will the better indicate the obscurity with which this subject is still shrouded. The importance of the topic, and the discord in the rulings, induce an extended quotation from the opinion in what is now well recog nized as a celebrated criminal case. Read v. Com. 22 Gratt. 924. "Words alone, however insulting or contemptuous, are never a sufficient provocation to have that effect, at least where a deadly weapon is used; so tender is the law of human life, and so much opposed is it to the use of such a weapon.

"It is not only necessary in such a case and for such an effect that a reasonable provocation should be received, but it is also

necessary that the provocation should have the effect of producing sudden passion under the influence of which alone the offense is committed. It must be a sudden transport of passion, which the law calls furor brevis. If a person on receiving the gravest provocation is unmoved by passion, but wantonly and wilfully and wickedly kills his adversary otherwise than in self-defense, he is guilty of murder. The law mitigates the offense to manslaughter only as an indulgence to the infirmity of human nature. Provocation without passion, or passion without provocation, will not do; both must concur to reduce the offense to the grade of manslaughter.

"Again, if an unlawful homicide be committed in pursuance of a preconceived purpose, the offense will be murder, no matter how great a sudden provocation may have immediately preceded the act. The provocation may have been brought about or sought by the perpetrator, or he may have availed himself of it to give color of justification or excuse to his act, done in execution of his deliberate purpose. It is true that where there is both an old grudge and fresh provocation, the jury ought rather to presume, in the absence of sufficient evidence to the contrary, that the homicide was induced by the fresh provocation, and not by the old grudge. But then this is a matter for the jury on all the evidence before it, and there is generally sufficient evidence in every such case to satisfy the jury beyond a doubt which one of these two concurring motives induced the act.

"But, in this case, there was abundant evidence of an antecedent grudge and previous threats, and preparation for the commission of the act. Merriman has lost a twenty-dollar note, and suspected the prisoner of stealing it. The prisoner asked for time to show his innocence, and repeated the request from time to time, which Merriman as often granted him. At length the prisoner having given him an account which was not satisfactory, he charged the prisoner with the theft. Witness then said that Merriman must take back the charge or he would shoot him. Merriman replied, "Shoot then, if you choose, I will not take it back." This threat of the prisoner and this reply of Merriman were repeated as many as five different times. Now, although both the prisoner and Merriman drank freely on the day of the commission of the act, and were under the influence of spirits at that time, yet it does not appear, and it is not probable, that they were under

such influence on the former occasion when the threat was made. The prisoner prepared himself with a deadly weapon, which he carried secretly about his person. It does not appear that he had been in the habit of carrying such a weapon, and as it is unlawful to do so habitually, the jury might well have presumed that he provided himself with the weapon for the special purpose of executing his threat, unless he could intimidate Merriman to retract the charge he had made against him. These acts, connected with the actual shooting which followed, and the circumstances under which it was done, strongly tend to show that the act was deliberately done in execution of his prior threats that he would do precisely what he did do.”

The inaccurate dictum of the minority report in this ably reasoned case had the effect for a time of weakening its influence as a rule of criminal law but time has failed to impair the logic of its conclusions and it has met with the suggestive approval of "silent acquiescence."

§ 369. What is Reasonable Cooling Time.-As already intimated, the question of the reasonableness of adequacy of the provocation must depend upon the facts of each particular case. That can, with no propriety, be called a rule (or a question) of law which must vary with and depend upon the almost infinite variety of facts presented by the various cases as they arise. See Stark. Ev. (Am. ed. 1860) 676-680. The law cannot, with justice, assume, by the light of past decisions, to catalogue all the various facts and combinations of fact which shall be held to constitute reasonable or adequate provocation. Scarcely two past cases can be found which are identical in all their circumstances, and there is no reason to hope for greater uniformity in future. Provocations will be given without reference to any previous model, and the passions they excite will not consult the precedents.

The same principles which govern, as to the extent to which the passions must be excited and reason disturbed, apply with equal force to the time during which its continuance may be recognized as a ground for mitigating the homicide to the degree of manslaughter, or in other words, to the question of cooling time. This, like the provocation itself, must depend upon the nature of the case.

In Rex v. Hayward, 6 Car. & P. 157, and Rex v. Lynch, 5 Car. & P. 324, this question of reasonable cooling time was ex