¶1 ON BEHEABING.
¶2 June 21, 1922.
¶3 — At the time the original opinion was prepared *276 no objection to the charge appeared in the record, and alleged errors complained of therein were not considered. It is now made to appear that timely exceptions to the charge were presented, but were inadvertently omitted from the transcript. They are now before us and we are asked to consider same upon rehearing.
¶4 Complaint is made at certain expressions in the charge relative to manslaughter such as, ‘ ‘ and that such state of mind did actually exist at the time of the commission of the offense,” the criticism being that it led the jury to believe that in the mind of the trial judge an offense had been committed; that the charge should have said “at the time of the homicide.” Perhaps the language suggested in the exceptions 'would have been better than those used by the court, but taking the charge as a whole we think it does not present a serious question. There is no probability that the jury attached to the language complained of the construction urged by appellant.
¶5 We find the fourteenth paragraph of the charge to be as follows:
“You are further instructed that if you believe from the evidence that the defendant had had a previous difficulty with the deceased on the morning of the homicide and that in such difficulty the de-. ceased made an attack upon the defendant, causing pain or bloodshed, and you further believe from the evidence that such assault, together with all the facts and circumstances in evidence prior to and at the time of the killing, created in the defendant such a state of mind as to render him incapable of cool reflection, and that such state of mind did actually exist at the time of the commission of the offense, then you are charged that same would be deemed in law adequate cause, reducing a voluntary homicide to the grade of manslaughter.
But if you believe from the evidence that the defendant had had a previous difficulty with deceased on the morning of the homicide, and that the deceased had abandoned such difficulty, and you further believe from the evidence, beyond a reasonable doubt, that the defendant shot and killed the deceased, as charged in the indictment, in pursuance of a formed design which had remained in the mind of the defendant from the time of such prior difficulty and which actuated the defendant in shooting and thereby killing the deceased, and that he was not acting in his own self defense, as self defense is hereinafter explained, then the offense would be murder.”
¶6 Serious criticism is lodged at the latter clause of the foregoing charge, and has given us much concern. We do not think the question of “abandonment” of the difficulty was in the case. If it was, however, then the charge tells the jury if “they believe deceased had abandoned it, etc.” This was error under all the authorities. (See Branch’s Ann. P. C., page 1107, Section 1966). .The evidence at the trial might well show that deceased had abandoned a difficulty, but the rights of the accused cannot be so measured. Deceased must not *277 only have abandoned the difficulty, but accused must know he had done so, and so knowing renewed the attack. The charge seems to us to be further vulnerable to the assault made upon it, as assuming that there was formed in appellant’s mind a design to kill at the time of the former difficulty, without requiring the jury to so find. Even if the jury should so find, then it occurs to us the question W’ould be not one of “abandonment” of the difficulty by deceased, but that of “cooling time” of appellant. If during the former difficulty deceased assaulted appellant, causing him pain or bloodshed, which rendered his mind incapable of cool reflection, and he then formed a design to kill deceased, and conceding that at the time of the killing deceased said or did nothing which might go to constitute “adequate cause” when considered either alone or in connection with the former assault, then the w’hole question of the grade of the offense (self defense aside) would appear to turn upon whether between the assault and the actual killing sufficient time had elapsed for the passion to subside in the mind of a person of ordinary temper.
¶7 We regret that the record was defective causing a failure to consider the matter upon the original submission, but believing the charge complained of subject to the criticism, and this having been called to the court’s attention in a timely manner, it becomes our duty to now grant the motion for rehearing, set aside the order of affirmance, and reverse the judgment of the trial court, and remand the ease for retrial.
¶8 Reversed and remanded.