after stating the case, delivered th; opinion of the court.

The facts of this case presented a proper question for the •consideration of the jury, as to whether the homicide was murder or manslaughter. The instruction challenged did not, when taken in connection with the other parts of the charge, present the law inaccurately; for'theretofore the judge had charged,’ substantially; that premeditation was necessary to the crime of murder; and also, quoting from some authority, that “ voluntary manslaughter is the unlawful killing of another without malice, upon sudden quarrel, or in the heat of passion; ” and, further, that “ the law kindly appreciating the infirmities of human nature, extentuates the offence committed, and mercifully hesitates to put on the game footing *65 of guilt the cool, deliberate act, and the result of hasty passion.” In the language complained of, he goes on to say that mere passion does not reduce the crime from murder to manslaughter, for it may be a passion voluntarily created for the purpose of homicide; but it must spring from some wrongful act of the party slain at the time of the homicide, or so near theretofore as to give no time for passion to cool. Applying the rule to the facts in evidence, the instruction was that, if the defendant in a moment of passion, aroused by the wrongful treatment of his brother and without any previous preparation, did the shooting, the offence would be manslaughter and not murder; but as is immediately thereafter added, if he prepared himself to kill, and had .a previous purpose to do so, then the mere fact of passion would not reduce the crime below murder.

We see nothing in this of which the defendant can properly complain, and as this is the only matter called to our attention, the judgment of the Circuit Court must be

Affirmed.