By the Court
I. —The defendant was indicted by a. grand jury of Rice County for murder. Upon being brought into Court and arraigned, his counsel moved to set aside the indictment upon the ground “ that he was confined in jail at the time that the grand jury- were impanneled, sworn and engaged in finding the said indictment, and had no opportunity to challenge the panel of the' grand jury, or any individual grand juror.” The denial of this motion is the first alleged error. The case shows that no attempt was made to interpose a challenge, and, although the fact may not be important, that the defendant’s counsel were in Court at the time when the grand -jury were impanneled and sworn.. It does not -appear that any cause of challenge existed.
The point raised has already been settled adversely to the views of the defendant’s counsel in Maher vs. State, 3 Minn., 445, and in State vs. Hinckley, 4 Minn., 363-4, and we see no reason for re-examining it. See also People vs. Jewett, 3 Wend., 313.
II. - — -Mrs. Stamford, the wife of deceased, testified before the State rested, “ that when defendant came to her house on the morning of and after the homicide, he said to her that he had killed Mi'- Stamford, and was. going to kill her.” The attorney for the State then asked the witness the following question: “ What did the defendant do then ? ”
The counsel for the defendant objected. The objection being overruled, defendant excepting, the witness answered :
III. —The counsel for defendant contend that, the Court erred in permitting the State to prove wounds not mentioned in the indictment, wounds which might have been mortal, and which the jury may have inferred were made by the defendant, and were the cause of, Stamford’s death.
There is nothing in this point. “ It is sufficient if the proof agree with the allegation ú¡v its substance and generic character, without precise conformity in every particular.” 3 Gr. Ev., Sec. 140; 1 Ibid, Sec. 65 ; Sanchez vs. People, 22 N. Y., 149 ; 1 Russell on Crimes, 560; Roscoe Cr. Ev., 108; 1 Archbold Pr. and Pl., 7th Ed., 888; 4 Parker’s Cr. R. 552; Rex vs. Waters, 7 C. and P., 250; 2 Bishop Cr. Pro., Sec. 528.
IV. - — -The defendant claims that the Court erred in permitting Maria Hoot to testify to statements made by' the witness Emma Hoyt, contradicting her testimony upon the stand, because a proper foundation had not been laid, by first calling the attention of Emma Hoyt to any conversations with Maria Root occurring at the times and places at which Maria Hoot testified that such statements were made.
It appears from the ease that upon an examination by the State a question was addressed to Emma Hoyt “ concerning alleged conversations with Mrs. Maria Root.” "What the lan
The precise date, however, need not be indicated. Pendelton vs. Empire Stone Dressing Co., 19 N. Y., 18. The object is, in justice to the witness proposed to be contradicted, as well as in justice to the party calling him, to point out the occasion referred to, with such reasonable certainty as to recall it to the mind of the witness, so that he may have an opportunity to correct his statement on the stand, or explain what he may be proved to have said elsewhere. See authorities svpra. 1 Starkie Ev., 213-14; State vs. Starr, 38 Mo., 279.
Y. — The counsel for the defendant asked the Court to instruct the jury “ that if they found that the defendant killed the deceased while resisting an attempt by deceased to commit any trespass upon the lands and cattle of the defendant, or to clo any unlawful act whatever, or after such attempt had failed, and that such killing was unnecessary, they must find the defendant guilty óf manslaughter in the second degree.”
The counsel for defendant also requested the Court to charge “ that according to the laws of this State cattle have a right to run at large from the first day of April to the fifteenth day of October, in each year, and that any assault or trespass with force and violence .on such cattle at such time by driving or running, or worrying and beating them'in the highway, is an unlawful act.”
The counsel for the defendant also requested the Court to charge, “ that the driving of one man’s cattle, by another out of the highway or along the highway where they have law
It is claimed that the instructions ashed for were proper under See. 13, page 598, Gen. Stat., which reads as fohows: “ Whoever unnecessarily hills another, except by accident or misfortune, and except in cases mentioned in sub-division two of section five of this chapter, either while resisting an attempt by such other person to commit any felony, or to do any other unlawful act, or after such attempt has failed, shall be guilty of manslaughter in the second degree.”
The evidence in this case tends to show that here was a hilling with an axe — a deadly weapon — by inflicting therewith blows upon the head and nech of the deceased. These blows are claimed to have been inflicted in resistance of a civil trespass upon the land or cattle or both of the defendant; and there is no pretense that the weapon was used without a design to effect the fatal result which followed .'its use, to wit: the death of Stamford. We are unanimously of opinion that to such a state of facts See. 13 has no application, and that the instructions before quoted were therefore properly refused. But after a very laborious and protracted examination of the points involved, we are compelled to.arrive at this conclusion by courses of reasoning in which we are not .unanimous ; we therefore forbear to enter upon an explanation of the grounds upon which we base our judgment; it is sufficient for all the practical purposes of this case to announce the result reached. In considering and expounding the law of
YI. — It must be borne in mind that in this construction of See. 13 we are not considering the case of a killing in heat of passion, upon sudden provocation, or in sudden combat, under See. 12, to which we now come.
The Court charged the jury “ that if they found that the homicide was committed in a heat of passion, upon sudden provocation, or in sudden combat, they must then take into consideration the character of the weapon used by defendant,* and if a deadly weapon was used, the .provocation given the defendant must have been great indeed to reduce the killing from murder in the first degree to manslaughter in the second degree. It is a question for the jury to find whether in this case there was sufficient provocation to reduce the crime from murder to manslaughter in the second degree.” To this the defendant excepted.
"What is a sufficient provocation is quite commonly spoken of by writers on criminal jurisprudence, as a question of law, not of fact, a question for the Court, not for the jury. But as Mr. Bishop remarks in 2 Or. Law, See. 735, in speaking of the question of what is a sufficient provocation and what is sufficient cooling time, “ they are found practically involved in inquiries concerning facts, and as such they must be passed upon by the jury.” Ye are very well satisfied in general with the views expressed on this subject in Maher vs. The People, 10 Mich., 212. In that case Mr. Justice Christiancy says: “It is doubtless, in one sense, the province of the Court to define what, in law, will constitute a reasonable0 or adequate provocation, but not, I think, in ordinary cases to determine whether the provocation proved in the particular ease is sufficient or reasonable. This i's essentially a question of
"We agree substantially with the views thus expressed by the Supreme Court of Michigan. It is the province of the Court to define what will constitute a provocation, by, in substance, informing the jury that it must be something, the natural tendency of which would be to disturb and obscure the reason to an extent which might render the average of men of fair average mind and disposition liable to act rashly or withoxit due deliberation or reflection, and from passion, rather than judgment, and something which the jury are satisfied did so disturb and obscure the reason of the defendant in the case before them, so that the homicide was the result of the provocation:
The average of men of fair average mind and disposition should be taken as the standard. It is for the jury under in-’ structions of this general nature to determine whether the provocation-proved in the particular case on trial is sufficient.
VIL — So far as the instruction related to a heat of passion upon sudden provocation, it is in accordance with the following views heretofore' expressed by this Court in State vs. Shippey, 10 Minn., 229-230, to which we adhere. In that case it was said “ that to determine on the sufficiency of the provocation to mitigate the killing from murder to manslaughter, the instrument or weapon with which the homicide was effected, must be taken into consideration, for if it was effected with a deadly weapon, the provocation must be great, indeed, ■to lower the grade of the crime from murder.”
And the reason why this is so is, because the presumption from the bare fact of the use of a deadly weapon in perpetrating homicide in heat of passion upon sudden provocation or in sudden combat, is that the killing was intentional, and where the killing is intentional, a great provocation is required to disturb or obscure reason “ by passion to an extent which might render ordinary men of fair average disposition liable to act rashly or without due deliberation or reflection, or from passion rather than judgment.” And so whenever it is sought to bring a case within the terms and meaning of Section 12 the provocation must be great to give the homicide the character of manslaughter, because only intentional killing is covered by that section which reads in this wise : “ The killing of a human being by another, in a heat of passion, upon sudden provocation, or in sudden combat, intentionally, but without premeditation, is manslaughter in the second degree.”
VIII. — It is proper further to observe that, as remarked in
'So far, then, as the charge of the Court related to a homicide committed in heat of passion, upon sudden provocation, it was correct.
IX. — But the charge comprehended also the case of a homicide committed in sudden combat, and as to this we think it was inaccurate. Where a homicide is committed in heat of passion, in sudden combat, the character of the weapon used is not to be taken into consideration in reference to a provocation, nor in case of such sudden, combat is it necessary that there should have been any legal provocation to render the homicide manslaughter. The question of provocation can hardly be said to arise in case oí homicide in sudden combat. But the character' of the weapon may properly be considered in case of homicide in sudden combat, for the purpose of determining whether the party killing entered upon the combat with a premeditated design to kill; and such intention might be inferred from his preparing himself with a deadly weapon previous to the combat, and for the purposes of the combat,
For the errors which we have indicated a new trial must be awarded. .
Ordered accordingly.