Finley when plaintiff in error claims he was struck with the ax before he procured the gun, but it is more probable, as appears from the evidence of Johnnie Bartley, the son of plaintiff in error, that the team ran away when the gun was fired. Plaintiff in error testified that Finley, at the time, was thirty-one years of age and plaintiff in error was forty-five; that they had previously run foot races together, and Finley was able to out-run him.

From all the evidence it is entirely clear that Finley was attacking plaintiff in error with the ax, and was coming in the east door of the house, with the ax uplifted, ready to strike, when plaintiff in error fired the shot which killed him. The main question to be determined from the record is whether, under the circumstances shown, plaintiff in error was guilty of the crime of murder of which he was convicted.

Murder, by our statute, "is the unlawful killing of a human being, in the peace of the people, with malice aforethought, either express or implied. * * Express malice is that deliberate intention unlawfully to take away the life of a fellow creature, which is manifested by external circumstances capable of proof. Malice shall be implied when no considerable provocation appears, or when all the circumstances of the killing show an abandoned and malignant heart." (Hurd's Stat. 1911, sec. 140, p. 788.) There is no proof, or claim of proof, of express malice on the part of plaintiff in error, nor was there shown implied malice, as the same is defined. It could not be said but that plaintiff in error had considerable provocation. and Finley had fought and been separated. Finley first picked up a heavy piece of timber and struck plaintiff in error a severe blow. In the midst of the affray plaintiff in error procured his gun and loaded it. The only possible act of deliberation shown by plaintiff in error was in going around the house for his gun. If we disregard his testimony entirely that he was going to his team and wagon

He

for the purpose of getting away from Finley, and even if it be taken for granted that his motive was to procure his gun, hanging on the kitchen wall, the evidence shows that Finley had just struck him with a heavy club, and he knew he could not escape from Finley by running away, as Finley was able to out-run him. Besides, the law makes. a distinction and allowance between what a reasonable person would do in the heat of passion or under great provocation and what the same person would do in cooler moments, and it is just this distinction that makes a homicide in one case murder and in another case manslaughter. It is true that the jury, from the evidence, have the right to say which crime has been committed, but when the evidence utterly fails to establish the crime of murder as charged and shows only manslaughter at most, then a verdict of murder should be set aside. The principal question to be determined is the state of mind of plaintiff in error at the time and immediately before he fired the shot. At that time Finley was coming toward him with a deadly weapon. When plaintiff in error fired he apparently did not have time to raise the gun to his shoulder in the usual position of aiming such a weapon. Under the circumstances there is an entire lack of the elements of a malicious and premeditated homicide.

In the case of People v. Bissett, 246 Ill. 516, this court held that it is indispensable to a conviction for murder that the killing be done with malice aforethought, express or implied, otherwise the offense, under the statute, is manslaughter. Manslaughter, in our Criminal Code, is defined as "the unlawful killing of a human being without malice, express or implied, and without any mixture of deliberation. whatever. It must be voluntary, upon a sudden heat of passion, caused by a provocation apparently sufficient to make the passion irresistible, or involuntary in the commission of an unlawful act, or a lawful act without due caution or circumspection." (Hurd's Stat. 1911, sec. 143, p. 788.) This

is followed by section 144, which is as follows: "In cases of voluntary manslaughter, there must be a serious and highly provoking injury inflicted upon the person killing, sufficient to excite an irresistible passion in a reasonable person, or an attempt by the person killed to commit a serious personal injury on the person killing. The killing must be the result of that sudden, violent impulse of passion supposed to be irresistible; for if there should appear to have been an interval between the assault or provocation given, and the killing, sufficient for the voice of reason and humanity to be heard, the killing shall be attributed to deliberate revenge, and punished as murder."

There had been a serious and highly provoking injury inflicted upon plaintiff in error sufficient to excite an irresistible passion in a reasonable person, and there was an attempt by Finley to commit a serious personal injury upon plaintiff in error. Can it be said, under all the circumstances of this case, that from the time that the fight started between Finley and the plaintiff in error, the plaintiff in error had at any time prior to the killing, as a reasonable man, any opportunity for deliberation as to the consequences of any of his acts or that there was any mixture of deliberation whatever, or, as stated by the authorities on criminal law, had sufficient time elapsed since the provocation or injury for the accused to become calm and act coolly with reference to the consequences likely to ensue from his acts? The rule laid down in the American and English Encyclopedia of Law (vol. 21, 2d ed. p. 177,) is as follows: "If, however, the difficulty between the accused and the deceased had not terminated but the provocation and the homicide constitute parts of a single transaction, an interval of a few minutes does not constitute sufficient cooling time. An instance of this is where the accused, as soon as the provocation is given, goes a short distance for a weapon and immediately returns and strikes the fatal blow." The homicide in this case was manslaughter, if anything.

As to the admission in evidence of the statement of the wife of plaintiff in error, above referred to, such statements have been held admissible as part of the res gesta. Gannon v. People, 127 Ill. 507; Lander v. People, 104 id. 248.

The giving of the People's tenth instruction is assigned for error. By this instruction the jury were informed that it must appear that at the time of the killing the danger to the defendant was so urgent and pressing that in order to save his own life or to prevent his receiving great bodily harm the killing of Finley was absolutely necessary, etc. The instruction told the jury, in effect, that it must appear from the evidence, as the evidence appears to the jury, that the danger to the defendant was urgent, etc. It is not the question whether the evidence shows the danger to be real or not. The question is whether the circumstances are such that the defendant, as a reasonable man, believed, or was justified in believing, that he was in great danger. The jury might believe from the evidence, or it might appear to the jury from the evidence, that at the time of the killing the defendant was in no danger whatever, whereas it might also appear from the evidence that the circumstances were such that he' really believed he was in danger. For this reason the giving of a similar instruction, which was in the language of section 149 of the Criminal Code, has been condemned unless there be included or coupled with it the language of section 148, which defines the circumstances necessary to excite the fears of a reasonable man. (Kinney v. People, 108 Ill. 519, and cases cited.) It was, however, held in Gainey v. People, 97 Ill. 270, that the giving of such an instruction was not reversible error when there were other instructions that correctly set out the law of self-defense, and if the instructions, as a series, stated the law correctly. We would not be inclined to reverse this case if the giving of the instruction complained of were the only error assigned. An examination of the instructions, however, discloses that none were given de

fining manslaughter or the difference between murder and manslaughter, or informing the jury in any way of the elements of the two crimes, so they might have found either one was committed from the facts.

For the reasons given the judgment of the circuit court will be reversed and the cause remanded to that court for a trial de novo.

Reversed and remanded.

SOLOMON FEITLER, Appellant, vs. WAYNE Y. DOBBINS,

Appellee.

Opinion filed April 23, 1914.

1. EASEMENTS-rule where owner sells part of entire premises after arranging for light and ways. Where the owner of entire premises arranges for light and passageways for the benefit of the different portions of the premises and afterwards the premises are severed and the title vested in separate owners, each grant will carry with it, without being specifically mentioned, the rights, burdens and advantages imposed by the owner prior to the severance.

2. SAME when it is error to sustain a right to easement upon payment of money. In a proceeding to enjoin the closing up of a passageway, claimed to constitute a perpetual easement, where the complainant is either entitled to the relief absolutely or is not entitled to any relief, there is no authority for granting the relief to complainant if the latter will pay a specified sum of money to the defendant.

3. SAME-court of equity has jurisdiction to enjoin obstruction of private easement. A court of equity has jurisdiction to enjoin the obstruction of a private easement, but the proof of the existence of the easement must be so clear and convincing as to remove every substantial doubt as to the existence of the right claimed.

4. SAME-when complainant is entitled to an easement. Where the owner of two lots constructs a passageway, with gates, along the side of one lot and the same is used as the only means of reaching the rear of the other lot, (the forepart of such lot being entirely covered by a building,) and where the owner encumbers the lot having the passageway upon it with a trust deed covering such lot and expressly mentioning the easement, the easement is binding as between a purchaser of the lot, who assumed and