83 Ala. 26 | Ala. | 1887
— The court, after having charged the jury that, if the assault was made in the heat of blood, on a sufficient provocation, and not with malice, the accused would not be guilty of an assault with intent to murder, instructed them, that the heat of blood “must be such as to entirely dethrone reason.” To constitute the offense with which the defendant is charged, the specific intent must exist. It does not exist, unless, if death had ensued, the offense would be murder. If the assault was committed under such circumstances that the completed offense, if death had ensued, would have been manslaughter, the defendant is not guilty of assault with intentto murder. — Simpson v. State, 59 Ala. 1.
'Whether or not the homicide is the offspring of malice, is the characteristic, which distinguishes murder and manslaughter. In consideration of the infirmities of humanity, the law regards a sudden transport of passion, caused by adequate provocation, as sufficient to rebut the imputation of malice which would otherwise arise. In such case, the law imputes the homicide to inherit frailty, instead óf malice, or formed design. “Provocation does not extenuate the guilt of homicide, unless the person provoked is, at the time he does the act, deprived of the power of self-control by the provocation which he has received.” — Steph. Dig. Or. Law, Art. 225. The state of mind must be such, that the suddenly excited passion suspends the exercise of judgment, and dominates volition, so as to exclude premeditaion and a previous formed design, though of short duration; but it is not essential that the transport of passion shall be so overpowering as to destroy volition, or the reasoning faculty. A killing in sudden passion, excited by sufficient provocacation, without malice, is manslaughter, “not because the law supposes that this passion made him (the slayer) unconscious of what he was about to do, and stripped the act of killing of an intent to commit it, but because it presumes that passion disturbed the sway of reason, and made him regardless of her admonitions. It does not look upon him as temporarily deprived of intellect, and therefore not an accountable agent; but as one in whom the exercise of judgment is impeded by the violence of excitement, and accountable therefor as an infirm human being.” — Hill v. State, 34 Amer. Dec. 396. A transport of passion, which deprives of the power of self-control, is, in a modified or restricted
We discover no other error.
Reversed and remanded.
