In People v. Sullivan, 7 N. Y. 396, Horrigan & Thompson's Criminal Defenses, pp. 69, 70, we find this language: "The court was further requested to charge the jury that if they believed the prisoner, in the heat of passion, caused the death of the deceased, it is not murder. This was properly refused. The designed killing of another without provocation, and not in sudden combat, is certainly none the less murder because the perpetrator of the crime is in a state of passion. The court was also requested to charge that if the jury believed that Smith, having had the fight with Sullivan, and by his conduct and blows aroused and excited the passions of the prisoner, and then returned, thereby keeping up the excited passions of the prisoner, and under such excitement the prisoner stabbed the deceased, it is not murder. This request was erroneous, and was properly rejected. Where, after mutual combat, a question arises whether there has been time for excited passions to subside, the question always takes this form -whether there had been sufficient time to cool, and not whether, in point of fact, the defendant did remain in a state of anger. The request presented simply the question whether the defendant continued in anger up to the time of killing." Bishop, in his New Criminal Law, § 711, subd. 2: "If the passion had time to cool, the offense is not reduced to the lower degree, though in fact it had not cooled. For 'when anger, provoked by a cause sufficient to mitigate an instantaneous homicide, has been continued beyond the time which, in view of all the circumstances of the case, may be deemed reasonable, the evidence is found of that depraved spirit in which malice resides.' Section 712. We have no rule for determining how much time is necessary for cooling. In the nature of things, it must depend much on what is special to the particular case. Commonly the time in which an ordinary man under like circumstances would cool is deemed reasonable. 'If two men fall out in the morning, and meet and fight in the afternoon, and one of them is slain, that is murder, for there was time to allay the heat, and their after meeting is of malice.' An hour seems to have been thought sufficient. Three hours have been. Where a witness testified that the prisoner was 'absent no time,' though there was a pause in the fight, there it was adjudged not to have been a cooling." Section 713. "Ordinarily the sufficiency of the cooling time and the sufficiency of the provocation are respectively deemed questions of law, not of fact. But the time required to cool, for example, is sometimes, it is believed with great propriety, submitted to the jury."

We might multiply authorities on this question, but we deem it unnecessary to do so, taking it as thoroughly established that cooling time is a question of fact, where the issue is in the case, to be submitted to the jury as a question of fact on time, and not

upon the condition of the defendant's mind. It follows, therefore, that the court's charge complained of was not error.

Other matters complained of by appellant we do not deem necessary to review. There being no error in the record, the judgment is affirmed.

HENDERSON, J. I believe the charge on cooling time announces a correct proposition, and that the case should not be reversed on that account, and I agree to the conclusion reached.

DAVIDSON, P. J. I dissent and will write my views. On Rehearing.

HENDERSON, J. Appellant insists on several grounds for rehearing, but, in the view we take of it, it is only necessary to consider two. In our opinion, the charge of the court was correct on the doctrine of cooling time, as heretofore announced.

While appellant reserved an exception to the action of the court giving the state's special requested instruction, yet, in the argument in submitting the case, he failed to call attention to the same; and, while it was referred to, it was not thoroughly discussed, in the original opinion. In his motion for rehearing he has presented his assignment of error to this charge with much earnestness and force. The exceptions pointed out by him to the charge are special, and it does not occur to us that the first two exceptions taken point out any error in the action of the court. However, the third and last exception reads as follows: "Said charge in effect negatives the defendant's right to resist an attack which imperiled his life, or inspired him with the reasonable belief of suffering serious bodily injury at the hands of the deceased, if he provoked or renewed the difficulty, no matter what his purpose may have been in so doing. The court, after instructing the jury, in general terms, if they believed that deceased seized property defendant believed was his, and refused to give up the same, and they had a difficulty on that account, and that they afterwards separated, and that thereafter defendant followed deceased up the road, not for the purpose of renewing the difficulty, but with the honest intention to demand of deceased a return of the money which he believed deceased had wrongfully taken from him, and that deceased refused to comply with his demand, and was about to make an unlawful attack upon him with a knife, and the defendant reasonably believed he was in danger of serious bodily injury or death from said attack, and that on said account he fired and killed deceased, he would be justified in so doing. The court then proceeded to instruct the jury, as follows: "On the other hand, you are charged that, where the possession of personal property has once been lost, the owner has no lawful right to regain it by

such means as result in homicide. So, in this case, if you believe that, prior to the shooting, deceased, without defendant's consent, seized money that was defendant's property, or that defendant fairly and reasonably believed was his property, and that deceased refused to give up such money, and that defendant and deceased had a difficulty on account thereof, and that, after they separated, you believe beyond a reasonable doubt that defendant armed himself and followed deceased up the road, and you further believe from the evidence, beyond a reasonable doubt, that defendant so armed himself, and followed deceased with the intention of renewing or provoking a difficulty with deceased, and that thereafter he shot and killed deceased, he would not be justified in so shooting and killing deceased, but, if found upon express malice, as defined in the charge, he would be guilty of murder in the first degree, and if upon implied malice, as defined, would be guilty of murder in the second degress, and if done under the immediate influence of sudden passion aroused by an adequate cause, as defined in the charge, he would be guilty of manslaughter." Now, the vice here suggested is that the charge merely requires the jury to believe that, if appellant armed himself and followed deceased with the intention of renewing the difficulty, he would be guilty of some offense, no matter what occurred when he came up with deceased; that is, the charge does not require that after meeting with deceased he do some act to bring on the difficulty, but it merely states, if he followed him with the intention of renewing the difficulty, and thereafter he shot and killed deceased, he would be guilty of murder or manslaughter, as the case might be. Clearly the charge in question contains this vice, and it is not necessary to cite authorities in order to show it. All the cases hold that mere pursuit of a party with intent to bring on a difficulty does not deprive one of the right of self-defense; that after he comes up with the party he must then do some act with intent and calculated to provoke the difficulty. Here the court simply instructed the jury, if he pursued him with intent to renew the difficulty, and he afterwards killed him, no matter what occurred when they met, he would be guilty of murder or manslaughter, as before stated. At first it occurred to the writer that the special objections urged to this charge did not raise the question, or point out the particular vice in the charge. But as before stated, we believe the third ground relied on by appellant reaches the vice in the charge pointed out above.

We note in this connection that appellant requested a number of special instructions along the same line, which were given by the court, and which are correct in terms. However, they contravene the proposition announced in the charge above criticised, and,

taking the charges together, were calculated to leave the jury in a confused and uncertain state of mind as to what was the law.

We accordingly hold that because the court gave this charge the motion for rehearing is granted, and the judgment is reversed and the cause remanded.

BROOKS, J. (dissenting). I do not agree with the opinion of the majority of the court reversing the case on motion for rehearing. If the charge complained of by appellant puts a restriction upon appellant's right of self-defense, then special charges Nos. 2, 4, 5, and 6, given by the court at the request of appellant, clearly cover any possible harm in the charge complained of, and render harmless any inaccuracy therein. Said charges are as follows:

"You are charged that it is not unlawful for a person to bet or wager money on his skill and ability to throw an anvil over his head; so that, if in this case you believe from the evidence that prior to the shooting that deceased and defendant mutually made a bet as to whether or not the defendant could pick up and throw an anvil over his head, and that each placed the money so bet, to wit, one dollar, in the hands of one Calvin Stuckey, as a stakeholder, and that thereafter defendant did pick up and throw said anvil over his head, and did win said bet, then you are instructed that the defendant would, in law, be entitled to the possession of the money so won in the hands of said stakeholder. And if, after winning said money, deceased grabbed or snatched said money out of the hands of the stakeholder, and refused to give same to defendant, and thereafter started away with said money, then you are charged that defendant would have the lawful right to seek deceased for the purpose of demanding the possession thereof. And you are further charged that in going in quest of deceased he would have the lawful right to arm himself in anticipation of any attack the deceased might make upon him when they met; and if you further believe that defendant looked deceased up and after overtaking him, demanded his money, which deceased refused to surrender, whereupon an altercation ensued between them, in which deceased cursed and abused defendant, and drew a knife upon and started towards defendant in a threatening manner, and defendant believed, from the acts, conduct and declaration of deceased, he was in danger of being killed or of suffering serious bodily injury at the hands of deceased, then he would have the lawful right to shoot and kill deceased; and, if you so believe, you will acquit defendant, or, if you have a reasonable doubt thereof, you will find him not guilty. And in this connection you are charged that you must place yourself in the position of defendant, and view the facts and circumstances in evidence from his standpoint, and if, from all the facts and

circumstances in evidence, you believe that it reasonably appeared to defendant at the time of the shooting he had a reasonable expectation or fear of death or suffering serious bodily injury at the hands of deceased, then defendant would have the lawful right to shoot and kill deceased in defending himself from such real or apparent danger; and in this connection you are charged that said danger need not be in fact real, but need only be apparent, viewing the same from defendant's standpoint at the time; and, if defendant began shooting at deceased under circumstances indicated above, you are instructed that he would have the right to continue to shoot so long as he believed himself in danger from such threatened attack of deceased, if any."

No. 4. "The fact that the person arms himself before going to ask or demand possession of property that may belong to him, or that he believed belonged to him under the facts in evidence, does not deprive him of the right to defend himself from an unlawful attack made upon him. So, if you be lieve from the evidence that deceased had a dollar in his possession, which defendant had won from him, and defendant, for the purpose of demanding possession thereof, armed himself and sought deceased with the view of demanding possession thereof, and that, upon meeting, deceased, after cursing or abusing defendant, advanced upon him with a drawn knife, and defendant believed he was about to suffer serious bodily injury at the hands of deceased or be killed by deceased, fired upon deceased with a pistol in order to protect himself from such assault, if any, on the part of deceased, then, if you so believe, you will find him not guilty, or, if you have a reasonable doubt thereof, you will acquit him; and, in passing upon this issue, you will view the facts and circumstances in evidence from the standpoint of defendant as it appeared to him at the time of the difficulty, and not as the same may appear to you now."

No. 5. "You are charged that, if you be lieve from the evidence that, immediately before the killing, defendant had won a dollar from deceased, which deceased snatched and carried away, and refused to give up to defendant when demanded, then you are charged that defendant would have the right to seek deceased for the purpose of demanding

the money, and in doing so he would have the lawful right to arm himself, if he anticipated any unlawful attack upon himself; and if, after overtaking deceased and demanding his money from him, deceased abused defendant and started towards him with a knife, then you are charged that defendant would have the right to use any force within his power to protect himself; and if, while deceased was making or in the act of making an unlawful attack upon defendant with a knife, defendant shot and killed deceased, then he would be guilty of no offense, and, if you so believe, you will find him not guilty. You are further char ged in this connection that the fact that de fendant armed himself before going to seek deceased would not impair or abridge his right of self-defense, if his purpose in seeking deceased was to demand his money."

No. 6. "If you believe from the evidence in this case that shortly before the killing the defendant had won a dollar from deceased, which had theretofore been placed in the hands of one Calvin Stuckey under an agreement that, if defendant would pick up and throw over his head a certain anvil, the said dollar should belong to and be delivered to defendant, and that deceased immediately thereafter snatched said dollar from the hands of said Calvin Stuckey, whereupon a quarrel ensued between deceased and defendant, and in which the said deceased drew a knife upon defendant, and threatened to kill him, and started away with said money, and defendant immediately thereafter went to where deceased was, and again demanded the possession of said dollar, and deceased again refused to give it to defendant, but began to curse and abuse defendant, and to make a demonstration as though to draw a knife upon him, and you believe that such facts, acts, and circumstances, taken in connection with the previous wrongs done him by deceased, and the circumstances all taken together were of such a character as to arouse in the mind of defendant such a degree of anger, rage, sudden resentment, or terror as to render his mind incapable of cool reflection, and while in such condition he shot and killed deceased, you are charged that he could not be convicted of any offense higher than the grade of manslaughter."

Therefore I believe the motion for rehearing should be overruled.

transfer by the bankrupt which any creditor might have avoided, it is immaterial whether such transfer were made four months prior to the adjudication of bankruptcy or not.

2. HOMESTEAD-CONVEYANCE TO WIFE-COMPLAINT BY CREDITORS.

Creditors may not complain of the conveyance to the wife of the homestead, although it is bought by the husband with his own funds.

[Ed. Note. For cases in point, see vol. 25, Cent. Dig. Homestead, § 182.]

3. SAME-RENTS AND PROFITS.

Where the legal title to the homestead is in the wife, she is entitled to the rents and profits thereof, and to property purchased with such rents and profits, and may hold the same against creditors of the husband.

4. HUSBAND AND WIFE-PROPERTY BELONGING TO WIFE-IMPROVEMENTS BY HUSBAND.

The wife's property is not liable to creditors of the husband for augmentation of the rents and profits or enhancement of the value thereof on account of any reasonable contribution of the husband's time, labor, and skill in the management of the property.

[Ed. Note. For cases in point, see vol. 26, Cent. Dig. Husband and Wife, §§ 573, 574.] 5. SAME-INVESTMENT OF FUNDS-BURDEN OF

PROOF.

Where a husband works and manages his wife's farm, and, in addition, controls in his own right other farms of equal productiveness, and mingles the products of all at will, the burden is on the wife to show, as against creditors of the husband, the amount of profits received from her own farm, and how they were expended, and that funds used in purchases and investments were not furnished by the husband, and did not accrue from his earnings.

Appeal from Crawford Chancery Court; J. Virgil Bourland, Chancellor.

Suit by H. L. Fitzhugh, as trustee of the estate of John Sharp, a bankrupt, against John Sharp and others. From a decree for plaintiff, defendants Sharp appeal. Affirmed in part.

This is a suit brought in the chancery court of Crawford county by H. L. Fitzhugh, as trustee of the estate of John Sharp, a bankrupt, against said John Sharp and his wife, Ella Sharp, and others, to subject certain property, real and personal, held in the name of Ella Sharp, to the payment of the debts of said bankrupt. John Sharp prior to the year 1897 failed in business, and was indebted to creditors in large sums, which he did not pay. On April 29, 1902, he filed his petition in bankruptcy, and was duly adjudged a bankrupt; and appellee, H. L. Fitzhugh, was by the creditors elected as trustee of the estate of the bankrupt. This suit was brought by said trustee, for the benefit of the creditors of the estate who had proved their claims, by direction of the bankruptcy court. It is alleged that John Sharp, while insolvent, and with fraudulent intent to cheat, hinder, and delay his creditors, purchased in the name of his wife, Ella Sharp, the following land, viz.: 80 acres of land bought from the Union Central Life Insurance Company, designated in the proof as the "Homestead Tract"; 40 acres bought from H. H. Hilton, trustee, for the sum of $200, known as the "Hilton Forty"; one lot

in the town of Alma bought from Hillyer and others for the sum of $200; another lot in the town of Alma bought from Sam B. Locke, as guardian, for sum of $300; another lot in the town of Alma bought from Jones and others for sum of $300; and 782 acres, known as the "G. N. Wright Farm," bought from the Union Central Life Insurance Company for the sum of $12,000, of which the sum of $1,000 was paid cash, and the remainder on a credit of 10 years, with 6 per cent. interest, payable annually. It is further alleged: That said bankrupt is the owner of the following personal property held in his wife's name, to wit: $3,500 invested as partner in a mercantile business conducted in the town of Alma with defendant Frank Wright, under the firm name of Wright & Co.; $750 invested in the capital stock of a sawmill company in Oklahoma Territory; and a note of defendant C. C. Montague for the sum of $250, executed to Ella Sharp in settlement of the purchase price of a pair of mules and a wagon and lot of corn sold to Montague. That said bankrupt was and is the real owner of said property, and placed the same in the name of his wife, the said Ella Sharp, for the purpose of defrauding his creditors. The defendants John Sharp and Ella Sharp filed their joint answer, denying that any of the property described was owned by John Sharp, or that title was taken in the name of Ella Sharp for the purpose of defrauding his creditors, and alleging that all of it was the separate property of Ella Sharp, and was bought with her money, except the homestead 80, which was conveyed to her by the Union Central Life Insurance Company in consideration of her joining her husband in a conveyance to said company of her dower in the equity of redemption of a farm known as the "Sharp Place," upon which the company held a mortgage. Mrs. Sharp also filed a separate supplemental answer, claiming the homestead 80 and the Hilton 40 as her homestead. The chancellor in the final decree dismissed the complaint as to this property, and declared the same to be her homestead, and no appeal from that part of the decree was taken by the plaintiff. The Union Central Life Insurance Company and C. C. Montague were made defendants and served with process, but failed to appear. The court rendered a decree in favor of the plaintiff, except as to the 120 acres held to be the homestead of the defendants, and canceled the legal title of Mrs. Sharp thereto, and declared the same to be assets of said bankrupt estate in the hands of the trustee, subject, however, to the lien of the Union Central Life Insurance Company on the Wright farm for $11,000, balance of the purchase price. The defendants John Sharp and Ella Sharp appealed to this court. John Sharp died pending the appeal, and upon suggestion of his death the cause, as to him, was abated.