Elliott, J.
Moore was arrested and- committed to jail by a justice of the peace, on a charge of murder in the first 'degree, for the killing of oue Sinex, and sued out a writ of habeas corpus for the purpose of being let to bail. After the service of the writ, and before the final hearing, Moore was indicted in the Eloyd Circuit Court for the same offense. The question presented to the judge, on the return of the writ, was whether .the proof ivas evident and the presumption strong that the pi’isoner was guilty of murder. The judge refused to admit the prisoner to bail, and dismissed the writ on the evidence, from which the prisoner appeals to this court.
The only question presented here is, whether the proof of the prisoner’s guilt is so clear, or the presumption so strong, as to render the offense a non-bailable one.
The facts disclosed by the evidence are, substantially, as follows: The prisoner and tire deceased were both residents of the city of Row Albany, and wore friends, no trouble or difficulty having previously existed between them. On the day of the difficulty, which resulted in the death of the *199deceased, they met at a saloon in the city of New Albany, called the Belvidcre, where they engaged in playing cards and drinking beer until they both became intoxicated. They differed in politics, and-finally got into a dispute on that subject, and in reference to the battle of Pittsburgh Landing, which resulted in coarse and abusive language between them, and the prisoner became excited and angry. He left the card table, and said ho would go home. The deceased insisted that he should not go, and asked him to drink with him, and settle the difficulty, which the prisoner refused to do, and started to go out. The deceased — who was much the stronger man — thereupon seized hold of the prisoner, when a scuffle ensued between them, the deceased forcing the prisoner into a chair, and insisting that he should hot go until they had another drink. The prisoner again refused to drink with the deceased, and hid him to let him alono. lie again started to leave, but the deceased caught him a second time, and in a very rough manner forced him back. Tlic prisoner got away again from the deceased, and started to leave through the front room of the saloon, but was followed by the deceased, when the prisoner called on persons present to take notice that he demanded of the deceased to let him alone, and proceeded towards the front door, but the deceased followed him,' and caught hold of him just as he had reached a screen that stood across the doorway* near the door. A scuffle ensued between them, when the prisoner, in attempting to jerk away from the deceased, partially fell and knocked down the screen, which lodged-without falling entirely down, but leaving the prisoner under it. The deceased then caught him by the legs, and attempted to draw him back into the room, but he kicked loose, and as be was crawling out to the doorway the deceased kicked at him, but whether lie hit him or not, the witnesses could not tell. .The prisoner then left, much excite.d. Persons in the saloon who saw the difficulty, and knew the' prisoner, and saw that he was intoxicated and excited, told the deceased that lie would *200return, and earnestly insisted that the deceased should leave the saloon, to avoid further difficulty; but he refused to do so, insisting that there was no clanger that the prisoner would attempt to do him any harm. The prisoner lived but a short distance from the saloon. He walked hurriedly home, and very soon came out of the house with a revolver in his hand; he returned rapidly to the saloon (some of the witnesses testify that he yan), still holding the revolver in his hand, and as soon as he entered the saloon and saw the deceased, who was standing at the counter, he drew, and fired the shot which resulted in the death ofxtho deceased. The evidence further shows that the period intervening, from the time the prisoner first left the saloon until his return, when he shot the deceased, did not exceed five minutes. It was also proved that intoxication had the effect on the prisoner to excite his passions, and greatly impair his reason. Soon after he left the saloon, after shooting the deceased, it was noticed that the side of the prisoner’s face and neck -were scratched and bleeding, and the marks on the neck resembled finger prints.
We held in Ex parte Heffren, 27 Ind. 87, that in this class of cases, it was proper that we should weigh the evidence, and determine the facts, as if trying the case originally.
To constitute the offense of murder, either in the first or second degree, malice is an essential ingredient. It is true, that where one person unlawfully and purposely kills another, malice, in the absence of rebutting evidence, is presumed from the act. But when no express malice is shown, and it appears that the act, though voluntary, was the result of a sudden heat, or transport of passion, upon a sufficient provocation, it rebuts the presumption of malice, and reduces the offense to manslaughter.
Here, it appears that no quarrel or difficulty existed between the prisoner and the deceased prior to their controversy in the saloon, just preceding the fatal act. The personal violence and.indignity perpetrated by the deceased on the accused, and so often repeated, were certainly suffi*201cient to inflame liis passion and provoke him to extreme anger; and such was the result; and if, in that transport of passion, thus provoked, the prisoner had immediately drawn a deadly weapon, and killed the deceased, it would hardly bo claimed that the offense, was murder. It would, at most, have amounted to manslaughter only. But the act did not immediately follow the provocation; and the question tobe determined is, did sufficient time intervene between the provocation and the fatal act, under the circumstances of the ease, for passion to subside and reason to interpose? The time necessary for cooling has never been defined or made absolute by rule; indeed, it could not, in justice, be so made. Each case must stand upon its own merits, as affected by its own particular circumstances. If two men fall out in the morning and fight in the afternoon, and one of them is slain, it is said to be murder, because in such a case there would seem to be ample time for the passions to cool, and reason to resume its sway. And so, in a given case, an hour has been deemed sufficient cooling time; see 2 Bishop’s Crim. Law, § 641. It is said by the same author (§ 630) that “the crime of murder requires the mind to have acted from deliberation and intelligence; and, where it is clouded by passion, the killing is only manslaughter.” This must be understood, however, with the qualification that the passion is the result of a sufficient provocation.
Applying these rules to the facts of the case under consideration, and in view of the provocation given by the deceased, the high state of excitement and passion produced upon the mind of the prisoner thereby, the hasty manner in which he went to his house and returned to the saloon with the pistol, and the short period of time, not exceeding five minutes, that intervened between the provocation and the act, and it seems to us that it cannot be fairly said that it is clear that there was sufficient time between the provocation and the act for the' passion to cool and *202reafeon to resume control, or that the proof is evident,' or the presumption strong, that the killing was malicious.
J. S. Davis and D. G. Anthony, for appellant.
D. D. Williamson, Attorney General, for the State.
"We think, therefore, that the prisoner is entitled to be lot to bail.
The judgment is reversed, and the cause remanded, with directions to the judge of tho Court of Common Pleas to let tho prisoner to bail in such sum as may be deemed proper to secure his presence to be tried on tho indictment in tho Circuit Court. '