pressly held to be a question of fact for the jury. And sce Whart. Am. Crim. L. (4th ed.) § 990, and cases cited. I am aware there are many cases in which it has been held a question of law; but I can see no principle on which such a rule can rest. Directly the opposite is laid down as the rule in 1 Russell, Crimes, pp. 524, 525, where it is said, "whether the blood has had time to cool or not is a question for the court and not for the jury." And in 2 Starkie, Evidence, pp. 947, 948, in speaking of the circumstances of "necessity, accident or infirmity," which justify, excuse or extenuate the act, the author uses the following language: "It is for the jury to pronounce upon the truth of such facts, and it is for the court to decide whether in point of law the fact of killing is justified, excused or alleviated by these facts." There is no evidence of any time for passion to cool. Leighton v. People, 88 N. Y. 117; Roscoe, Crim. Ev. 685. The prisoner may, in certain instances, extenuate his crime and reduce it from murder to manslaughter, by proof that the act was committed during the transport of passion and resentment, excited by sudden provocation, which for the time subdued his reason. For such evidence repels the inference of that deliberate malice and malignity of heart, which is essential to the offense (of murder). What degree of provocation and under what circumstances, heat of blood, the furor brevis will or will not avail the defendant, is usually a question of law, arising upon the special facts of the case. Roscoe, Crim. Ev. 964. It is the nature of the provocation and not the mere effect of it on the mind of the prisoner, which the law regards, and the sufficiency of the provocation to extenuate the prisoner's guilt, is a question of law. If one killed another immediately upon a grave and serious provocation, likely to excite great passion, the offense will amount to no more than manslaughter, although the defendant used a deadly weapon. Roscoe, Crim. Ev. 965. 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. People v. Sullivan, 7 N. Y. 400. The rationalè of this entire matter would seem to lie within a very small compass. In Ferguson v. State, 49 Ind. 33, 35, Pettit, J., said: "All elementary authority and adjudicated cases agree that time must be given for the passion of the injured person to become calm; and many authorities say that the question ought to be submitted to the jury as to whether the passion of the injured person had been actually quieted. If we suspend our discussion of the principles which ought to be applied to the question, and pass to the consideration of the decided cases as found in other jurisdictions, we shall find the ruling of the court vindicated, not simply by the preponderance of judicial authority, but by absolute unanimity." $370. Extended Collation of Authority.-Where the evidence raises a doubt as to who was the aggressor at the time of the homicide the deceased or the accused, and it further appears that the threats had not been communicated to the defendant, evidence of their nature and character is admissible. Roberts v. State, 68 Ala. 156; Harris v. State, 34 Ark. 469; Palmore v. State, 29 Ark. 248; People v. Travis, 56 Cal. 251; People v. Alivtree, 55 Cal. 263; People v. Scoggins, 37 Cal. 676; White v. Territory, 3 Wash. Ter. 397; West v. State, 2 Tex. App. 460; Powell v. State, 19 Ala. 577; Logan v. State, 17 Tex. App. 50; Pitman v. State, 22 Ark. 354; Wilson v. State, 18 Tex. App. 576; Dupree v. State, 33 Ala. 380, 73 Am. Dec. 422; 47 Ala. 97; Davidson v. People, 4 Colo. 145; Hughey v. State, Howard v. State, Atkins v. State, 23 Tex. App. 265; Coker v. State, 20 Ark. 53; 16 Ark. 568; Green v. State, 69 Ala. 6; Lingo v. State, 29 Ga. 470; Wiggins v. Utah, 93 U. S. 465, 23 L. ed. 941; Pridgen v. State, 31 Tex. 420; Fitzhugh v. State, 13 Lea, 258; People v. Campbell, 59 Cal. 243, 43 Am. Rep. 257; Keener v. State, 18 Ga. 194, 63 Am. Dec. 269; West v. State, 18 Tex. App. 640; Allen v. State, 17 Tex. App. 637; Mayfield v. State, 110 Ind. 591; State v. Brown, 22 Kan. 222; Hart v. Com. 85 Ky. 77; State v. McNally, 87 Mo. 644; State v. Rider, 90 Mo. 54; Holler v. State, 37 Ind. 57, 10 Am. Rep. 74; State v. Jackson, 37 La. Ann. 896; Little v. State, 6 Baxt. 491; State v. Turpin, 77 N. C. 473; State v. Janvier, 37 La. Ann. 645; Harris v. State, 47 Miss. 318; Edwards v. State, 47 Miss. 581; State v. Labuzan, 37 La. Ann. 489; State v. Dumphey, 4 Minn. 438; State v. Ryan, 30 La. Ann. 1176; Newcomb v. State, 37 Miss. 383; Binfield v. State, 15 Neb. 484; State v. Fisher, 33 La. Ann. 1344; Dukes v. State, 11 Ind. 557, 71 Am. Dec. 370; State v. Stewart, 9 Nev. 120; State v. Ferguson, 9 Nev. 106; State v. Hall, 9 Nev. 58; State v. Williams, 40 La. Ann. 168; State v. Downs, 91 Mo. 19; Turpin v. State, 55 Md. 462; Thomason v. Territory, 4 New Mex. 150. In reviewing these decisions it is surprising to find that a rule of conduct so satisfactory and apparently so obvious should ever have been a subject of judicial controversy. The principle received its first expansion in the reports of Chief Justice Hobart in the time of James I., while the conclusions reached by that distinguished peer were reaffirmed by Lord Chancellor Nottingham and thus given an abiding place in the English common law. See also the reports of Lord Chief Baron Comyns on the same subject. For the English law of self-defense, see Stephen's Digest of Criminal Law, art. 200, where the law in England is given, together with criticism of some well known cases from Hale and Hawkins. This article is too long to be here given in full, but is worthy of attentive reading. CHAPTER XLV. EVIDENCE OF CHARACTER. § 371. Statement of the Present Rule. 372. Record Evidence of Bad Character how Rebutted. 374. Always Available when Evidence is Circumstantial. 376. When Evidence is Confined to General Reputation. 378. When Evidence of Good Character is Unavailing. 380. When Negative Evidence of Character is Competent. § 371. Statement of the Present Rule.-In regard to the admissibility of evidence of character, there has been some fluctuation of opinion. The better rule now seems to be, that in all cases of a direct prosecution for a crime, evidence of the general good character of the accused is admissible, as in those cases where the guilty knowledge or criminal intention is of the essence of the offense. But where a penalty is claimed for the mere act, irrespective of the intention, evidence of character is not admissible. No evidence of the general character of the person on whom the offense was committed, is, in general, admissible, the character being no part of the res gesta. An exception to this rule is, however, made in prosecutions for rape. And in cases of homicide, it is admissible to show, in his favor, expressions of good will and acts of kindness on the part of the prisoner towards the deceased. Haines, Justices of Peace, p. 688, citing Greenl. Ev. $ 26, 27. No matter how conclusive the other testimony may appear to be, the character of the accused may be such as to create a doubt in the minds of the jury, and lead them to believe, in view of the improbabilities that a person of such character would be guilty of the offense charged, that the other evidence in the case is false, or the witnesses mistaken. Evidence of this nature is not a mere make-weight thrown into a case to assist in the production of a result that would happen at all events, but it is positive evidence, and may of itself, by the creation of a reasonable doubt, produce an acquittal. Weston v. Com. 111 Pa. 251. And it must be considered that, in criminal trials, it is always proper to prove the previous good character of the accused, in order to show that it was unlikely that such a person would have perpetrated the crime, and this notwithstanding his good character is presumed until it is impeached. His character is attacked by the charge against him. But this rule is elementary. Hardtke v. State, 67 Wis. 552; Whart. Crim. Ev. § 58. But, in weighing evidence of good character, a jury should be careful to remember that all men at some time in their lives have been men of good character, and that men of previous good character have been known to commit some of the gravest crimes known to the law. However, the law, in its humanity, says that evidence is to be received and considered by the jury, and given all the weight that they think it justly and properly entitled to, and no more. It is not competent for the government to give in proof the bad character of the defendant, unless he first opens that line of inquiry by evidence of good character. Com. v. Webster, 5 Cush. 325, 52 Am. Dec. 711; State v. Lapage, 57 N. H. 245, 24 Am. Rep. 69. § 372. Record Evidence of Bad Character how Rebutted.— Among the stereotyped questions propounded to a witness with a view to impair his credit is this, "Were you ever arrested and convicted of such a crime?" (naming the crime). In the vast majority of instances the interlocutor has previous knowledge of the facts and the reply elicited is almost invariably in the affirmative. This naturally creates unfavorable presumptions. It is a matter of no small importance to the criminal bar of this country to know that relief may be afforded in part at least from these unfavorable impressions by eliciting upon the re-direct examination testimony from the witness declaratory of his innocence of the crime charged and this although the record of his conviction be produced. Such a record is not conclusive of a person's guilt (Sims v. Sims, 75 N. Y. 467), and the witness has the right to show his innocence and relieve himself from the stigma of conviction. Wolkoff v. Tefft, 35 N. Y. S. R. 93. The record of the judgment or conviction may under some circumstances be received in civil actions as prima facie evidence of |