tional discharge of his pistol. The state adduced evidence that the killing was willful and intentional, and occurred during the attempt to perpetrate a robbery. Held, that it was not error for the court to instruct that though the killing was done in perpetrating or in an attempt to perpetrate a robbery, and though the information contained no allegations of the killing under such circumstances, nevertheless the accused could, under the allegations contained in the information, be convicted of first degree murder. State v. Thorne, 117 Pac. 58, 60, 39 Utah, 208. In a prosecution for statutory murder in the first degree, the state claimed that accused killed deceased with premeditated design. The court charged that premeditated design was simply an intent to kill, that "design" meant "intent," and that both words implied premeditation, that premeditation did not exclude sudden intent, and that whether it be described by the words "actual intent," "design," or "premeditated design" was immaterial; that the intent was understood to be premeditated because without mental action the purpose could not be formed; that, when there were no circumstances to prevent the presumption, the law would presume that the unlawful act was intentional and malicious; that, in the absence of evidence to the contrary, he who takes the life of another by some act naturally calculated to produce death would be presumed to have intended that result and to be guilty of murder in the first degree, it being presumed that such person intended the result that followed, and must be guilty of murder in the absence of evidence that the homicide was justifiable or excusable or such as to raise a reasonable doubt on the question; thus that where accused fired a shot, the weapon being aimed at a vital part of the body, and death ensued as a natural result, the presumption of fact as to the intention to take life, in the absence of any explanatory circumstances, makes a prima facie case for the prosecution, the state not being required to negative any probability that there were circumstances reducing the homicide below that of murder in the first degree, or excusing or justifying it. Held, that such charge was correct in so far as it related to statutory murder in the first degree under the facts proved. Hedger v. State, 128 N. W. 80, 90, 144 Wis. 279. Pen. Code 1895, art. 710, provides that every person who shall unlawfully kill any person with malice aforethought, either express or implied, shall be guilty of murder, and that all murder committed in the perpetration of robbery is murder in the first degree, and that all murder not of the first degree is murder of the second degree. White's Ann. Code Cr. Proc. art. 554, provides that, if the defendant pleads guilty, he shall be admonished of the consequences of such plea, and no such plea shall be received unless it appears that he is sane and is uninfluenced by fear or hope of pardon. Article 555 provides that where a defendant in a case of felony persists in pleading guilty, if the punishment of the offense is not absolutely fixed by law, a jury shall be impaneled to assess the punishment on evidence submitted to enable them to decide thereon. Pen. Code, 1895, art. 712, provides that, if a person pleads guilty to murder, a jury shall be summoned to find of what degree of murder he is guilty. Held, that when an accused pleaded guilty of murder, and his plea was accepted by the court after examination, and evidence was introduced before a jury which conclusively showed that the murder was committed in the perpetration of robbery, the court was not compelled to submit the issue of second degree murder, under article 712. Neither was the court in error in not defining for the jury murder in the first degree. Miller v. State, 126 S. W. 864, 58 Tex. Cr. R. 600. Deliberation and premeditation Deliberation, as an element of first degree murder, is established if accused had time for thought, and, thinking, though but for a moment, did intend to kill, and in fact did kill. State v. Russo (Del.) 77 Atl. 743, 745, 1 Boyce, 538. To constitute "murder in the first de gree," there must be, not only an intention to kill on the part of the slayer, but there effect death. Keigans v. State, 41 South. 886, must be a premeditated design to kill or 887, 52 Fla. 57. "Murder of the first degree" is where a homicide is committed with sedate, deliberate mind and formed design to kill, though the deliberate and formed design exist only for a moment. State v. Harmon (Del.) 60 Atl. 866868, 4 Pennewill, 580; State v. Blackburn (Del.) 75 Atl. 536, 539, 7 Pennewill, 479. A homicide committed under such circumstances that the law implies malice is not always murder in the first degree, but is such only where there exists at the time on the part of accused a premeditated design to effect the death of the person killed or of any human being. Hedger v. State, 128 N. W. 80, 90, 144 Wis. 279. "Murder in the first degree" is not determined by a design to kill, unless that design originated in, or resulted from, a sedate, deliberate mind, or in other words, at the time the design is formed, the mind must be calm, sedate, and deliberate. Wynne State, 127 S. W. 197, 199, 59 Tex. Cr. R. 117 (citing Farrer v. State, 42 Tex. 271). To constitute "murder in the first degree," there must be both an intent to kill and a deliberate and premeditated design to kill, which design must precede the killing by some appreciable space of time. It need not be long, but it must be sufficient for some reflection on the matter and a choice to kill or not to kill. People v. Boggiano, 72 N. E. 101, 179 N. Y. 267. To constitute "murder in the first degree," the killing must be willful, premeditated, and deliberate, but willful intent, premeditation, or deliberation need not exist for any prescribed length of time before the crime is committed; it is sufficient that there is premeditation and design to kill distinctly formed in the mind at any time before or at the time the shot is fired. State v. McMullin, 71 S. W. 221, 224, 170 Mo. 608. The law defining "murder in the first degree" does not fix any invariable rule as to the length of the time that must elapse between a formed design to kill and its execution, but only requires that the killing must have been deliberate and that a formed design to kill existed. Snowberger v. State, 126 S. W. 878, 882, 58 Tex. Cr. R. 530. If one actually forms the purpose maliciously to kill another, and deliberates and premeditates upon it, and then does the act, he commits "murder in the first degree," no matter how short the time may have been, if but the time necessary for one thought to follow another between the purpose and its execution. Wickham v. People, 93 Pac. 478, 481, 41 Colo. 345. To constitute "murder in the first degree" it is not essential that there should be any appreciable space of time between the intent to kill and the act of killing; i. e., any interval "capable of being appreciated or duly estimated." The intent to kill must be formed deliberately and with premeditation; but, when so formed, there need be no appreciable space of time between the intent and the act. People v. Suesser, 75 Pac. 1093, 1097, 142 Cal. 354. To constitute "murder in the first degree," there need be no appreciable space of time between the intention to kill and the act of killing-they may be as instantaneous as successive thoughts of the mind-and it is only necessary that the act of killing be preceded by a concurrence of will, deliberation, and premeditation; and where such is the case, the killing is murder in the first degree, no matter how rapidly the acts of the mind may succeed each other, or how quickly they may be followed by the act of killing. People v. Yee Foo, 89 Pac. 450, 452, 4 Cal. App. 730. A killing in a combat which engenders hot blood is not "murder in the first degree," in the absence of premeditation. Osburn v. State, 73 N. E. 601, 604, 164 Ind. 262. "In order to constitute 'murder in the first degree,' where only the question of malice is involved, and not robbery, or some of those extraneous matters made murder in the first degree by the statute, the intent to kill must be formed in a mind that is cool, deliberate, and sedate. The intent to kill, formed in a mind that is not cool, deliberate, and sedate, is not murder in the first degree." Manning v. State, 85 S. W. 1149, 48 Tex. Cr. R. 55. It is not necessary, under our statute, in order to constitute murder in the first degree, that the murder should be committed by means of poison, or by lying in wait, or that it shall be committed in the perpetration or attempt to perpetrate arson, rape, robbery, burglary, or mayhem; but any kind of willful, deliberate, and premeditated killing, is "murder in the first degree." A murderous purpose to draw some one into a dispute, and then strike him down with a deadly weapon, is sufficient to support a finding that the homicide was deliberate and premeditated. State V. Vinso, 71 S. W. 1034, 1037, 171 Mo. 576 (quoting and adopting State v. Fairlamb, 25 S. W. 897, 121 Mo. loc. cit. 144). "To constitute 'murder in the first degree' there must have been an unlawful killing done, purposely and with deliberate and premeditated malice. If the person has actually formed the purpose maliciously to kill and has deliberated and premeditated upon it before he performs the act, and then performs it, he is guilty of murder in the first degree, however short the time may have been between the purpose and its execution. It is not time that constitutes the distinctive difference between murder in the first degree and murder in the second degree. lawful killing with malice, deliberation, and premeditation constitutes the crime of murder in the first degree. It matters not how short the time, if the party has turned it over in his mind and weighed and deliberated upon it." Reed v. State, 106 N. W. 649, 651, 75 Neb. 509. An un "In order to warrant a verdict of 'murder in the first degree,' malice must be shown by the evidence to have existed (that is, the jury must be satisfied from the evidence, beyond a reasonable doubt, that the killing was a consummation of a previously formed design to take the life of the person killed, and that the design to kill was formed deliberately with a sedate mind; that is, at the time when the design was formed, the mind of the person killing was self-possessed and capable of contemplating the consequences of the act proposed to be done). There is, however, no definite space of time necessary to intervene between the formed design to kill and the actual killing; a single moment of time may be sufficient; all that is required is that the mind be cool and deliberate in forming its purpose, and that the design to kill is formed." Gregg v. State (Tex.) 100 S. W. 1161, 1163. Rev. Laws, c. 207, § 1, declares that murder committed with deliberately premeditated malice aforethought, or in the commission or attempt to commit any crime punishable with imprisonment for life, or committed with extreme atrocity or cruelty, is murder in the first degree, and punishable with death. In a prosecution for such offense, the court charged that the words "deliberately pre To constitute "murder in the first degree," the killing must be intentional, must be deliberate and premeditated, and no killing can be murder in the first degree unless the act of killing is preceded by a willful, deliberate, premeditated, and specific intent to kill. State v. Marx, 60 Atl. 690, 692, 78 Conn. 18. meditated malice aforethought" meant simply | tual combat, the offense was "murder of the "thought upon, resolved upon beforehand, not first degree." State v. Taylor, 50 S. E. 247, a thing done suddenly, not a thing that comes 252, 57 W. Va. 228. into the mind of a sudden, and is done before there is time to think about it, but a thing thought upon or planned some time before, or thought upon long enough before the act is done so that it can reasonably be said to have become a purpose of the mind," that "no particular length of time is necessary" and illustrated the same by stating that if a robber with a dirk or pistol turns a corner Under Mills' Ann. St. § 1176, providing and meets a bank messenger with a roll of that murder in the perpetration of robbery bills, and determines in one moment to get it, shall be deemed murder in the first degree, and the next shoots or stabs the messenger the intent is immaterial, so that, where sevdead, takes the package, and flees, his mal-eral conspire to rob, and one of the conspiraice was deliberately premeditated, though it tors commits murder in the perpetration of occupied only a few seconds to accomplish. robbery, the others are responsible for his act, Held, that both the definition and illustration though murder was not originally intended. were proper. Commonwealth v. Tucker, 76 Andrews v. People, 79 Pac. 1031, 1033, 33 N. E. 127, 138, 140, 141, 189 Mass. 457, 7 L. Colo. 193, 108 Am. St. Rep. 76. R. A. (N. S.) 1056. a bad motive or intent, is murder in the first degree, no matter whether there was specific intent to kill." State v. Burns, 99 N. W. 721, 722, 124 Iowa, 207 (citing State v. Van Tassel, 72 N. W. 497, 103 Iowa, 6; State v. Wells, 17 N. W. 90, 61 Iowa, 629, 47 Am. Rep. 822; State v. Bertoch, 83 N. W. 967, 112 Iowa, 195). "Under Code, § 4728, all murder which An instruction that, to constitute "mur- is perpetrated by means of poison is 'murder der in the first degree," there must be proof in the first degree.' Hence a homicide comof malice and premeditation, and that if ei-mitted by the administration of poison, with ther of these elements is absent there can be no conviction for that grade of homicide, that a "premeditated design or purpose" is one resulting from thought and reflection, a design conceived and afterwards so deliberately considered as to become resolved and fixed, that when the design to take human life is formed after deliberation, and there is adequate time and opportunity for deliberate The distinctive feature of "murder in the thought, then, no matter how soon the felonious killing follows the formation of the first degree" is a willful, deliberate, malicious, settled purpose, it is murder in the first de- and premeditated intent to take life, and, algree, that there need be no appreciable space though it is not indispensable that the preof time between the formation of the inten-meditated design should have existed in the mind of the slayer for any particular length tion to kill and the killing, but that it is as much "premeditation" if it enters into the of time before the killing, yet to constitute mind of the guilty agent a moment before murder in the first degree it is indispensable the act as if it entered years before, and that that the evidence should show that the killit is only necessary that the act of killing being was not only done with malice but that preceded by the concurrence of will, deliberation, and premeditation, but that, when there is no time and opportunity for deliberate thought, the unlawful killing cannot be murder in the first degree, is correct. Welty v. State (Ind.) 100 N. E. 73, 81. Intent "Murder in the first degree" cannot be predicated on the mere existence of an intent to kill at the time of committing the crime. State v. Mangano, 72 Atl. 366; 367, 77 N. J. Law, 544. It is not necessary that a prior intention to do the act of killing be conceived for any particular period of time in order to constitute murder in the first degree. Ferguson v. State, 122 S. W. 236, 237, 92 Ark. 120. it was preceded by a clearly formed design to kill, a clear intent to take life. Howard v. State, 100 S. W. 756, 757, 82 Ark. 97 (citing Bivens v. State, 11 Ark. 460; Fitpatrick v. State, 37 Ark. 239). Under Code, § 4728, providing that the killing of a human being by means of a willful, unlawful, and felonious administration of poison is "murder in the first degree," an indictment for homicide so committed is not objectionable for failing to allege a specific intent. A homicide so committed cannot constitute murder in the second degree or manslaughter, and hence a specific intent to kill is not an essential allegation in the indictment. State v. Robinson, 101 N. W. 634, 635, 126 Iowa, 69 (citing State v. Van Tassel, 72 N. W. 497, 103 Iowa, 9; State v. Wells, 17 N. W. 90, 61 Iowa, 629, 47 Am. Rep. 822; Epps V. If there was a fixed, deliberate, and sedate purpose to kill, usually termed "specific intent to take life," willful, deliberate, and premeditated, although in the course of mu- an State, 1 N. E. 491, 102 Ind. 539). If a person takes the life of another by act naturally calculated to produce that result, in the absence of any explanatory circumstance or circumstances rendering the homicide excusable or justifiable, or criminal in some degree less than the highest, or creating a reasonable doubt in regard to one of such contingencies, the law presumes that he intended the result effected, and he is guilty of murder in the first degree. Cupps v. State, 97 N. W. 210, 214, 120 Wis. 504, 102 Am. St. Rep. 996. tion; and hence an instruction that it was material; that the intent was understood to be premeditated because without mental action the purpose could not be formed; that, when there were no circumstances to prevent the presumption, the law would presume that the unlawful act was intentional and malicious; that, in the absence of evidence to the contrary, he who takes the life of another by some act naturally calculated to produce death would be presumed to have intended that result and to be guilty of murder in the first degree, it being presumed that such person intended the result that followed, and must be guilty of murder in the absence of evidence that the homicide was justifiable or excusable or such as to raise a reasonable cused fired a shot, the weapon being aimed at a vital part of the body, and death ensued as a natural result, the presumption of fact as to the intention to take life, in the absence prima facie case for the prosecution, the of any explanatory circumstances, makes a state not being required to negative any probing the homicide below that of murder in the ability that there were circumstances reducfirst degree, or excusing or justifying it. Held, that such charge was correct in so far as it related to statutory murder in the first degree under the facts proved. Hedger v. State, 128 N. W. 80, 90, 144 Wis. 279. Malice or motive Pen. Code 1901, § 172, declares that "murder" is the unlawful killing of a human being with malice aforethought. Such malice is express or implied. Section 173 declares that all murder perpetrated by poison or by any other kind of willful, deliberate, and pre-doubt on the question; thus that where acmeditated killing, or which is committed in the perpetration of certain crimes, is murder in the first degree, and all other kinds of murder are in the second degree. Held, that the word "other" in section 173 was used to supply the sense of addition to the enumeranot essential to a verdict of murder in the first degree by poison that there should be proof that defendant administered the poison to decedent with a specific intent to kill him was proper; malice being implied. Eytinge v. Territory, 100 Pac. 443, 445, 12 Ariz. 131. Penal Law (Consol. Laws, c. 40) § 1044, subd. 1, provides that the killing of a human being is "murder in the first degree" when committed from a deliberate and premeditated design to effect the death of the person killed or of another. Subdivision 2 provides it is murder in the first degree when committed without a design to effect death while in the commission of a felony. Section 610 provides that, upon the trial of an indictment, the prisoner may be convicted of the crime charged therein or of a lesser degree of the same crime. Held, that although murder in the first degree as defined by section 1044, subd. 1, is broad enough to embrace murder in the second degree or manslaughter in either degree, where accused was tried for murder under section 1044, subd. 2, the power of the jury to convict of a lesser degree could not be exercised, since an intent to kill is not a necessary ingredient to the crime, and it was enough to show beyond a reasonable doubt that the killing was done in committing or attempting to commit a felony. People v. Schleiman, 90 N. E. 950, 951, 197 N. Y. 383, 27 L. R. A. (N. S.) 1075, 18 Ann. Cas. 588. In a prosecution for statutory murder in the first degree, the state claimed that accused killed deceased with premeditated design. The court charged that premeditated design was simply an intent to kill, that "design" meant "intent," and that both words implied premeditation, that premeditation did not exclude sudden intent, and that whether it be described by the words "actual intent," "design," or "premeditated design" was im3 WDS.& P.2D SER.-32 'Malice is an essential element of "murder in the first degree." State v. Reese (Del.) 79 Atl. 217, 220, 2 Boyce, 434. it must be shown that the killing was comTo establish "murder of the first degree," mitted with express malice aforethought. State v. Borrelli (Del.) 76 Atl. 605, 606, 1 Boyce, 349. First degree murder is included within the term "felonious homicide" and malice is an essential ingredient thereof. State Russo (Del.) 77 Atl. 743, 745, 1 Boyce, 538. V. "Murder of the first degree" is where the killing was done with malice aforethought. State v. Primrose (Del.) 77 Atl. 717, 719, 2 Boyce, 164. "Murder in the first degree" occurs where the killing was done with express malice aforethought. State v. Reese (Del.) 79 Atl. 217, 221, 2 Boyce, 434. "Murder of the first degree" exists where the killing is done with express malice aforethought, and express malice aforethought ex ists where the killing is done with a sedate, State v. Brelawski (Del.) 84 Atl. 950, 952. deliberate mind and formed design to kill. "Murder of the first degree" is committed when the killing is done with express malice aforethought; that is, with a sedate, deliberate mind, and formed design to kill. State v. Miele (Del.) 74 Atl. 8, 9, 1 Boyce, 33; State v. Uzzo (Del.) 65 Atl. 775, 777, 6 Peunewill, 212; State v. Short (Del.) 82 Atl. 239, 241, | specific intent to kill is essential to the of 2 Boyce, 491. fense in the first degree. Reed v. State, 145 S. W. 206, 208, 102 Ark. 525. If a person puts poison in flour with intent that it shall be cooked and eaten by B., but it is eaten by C., who dies therefrom, such person will be guilty of murder, though he had no malicé against C. Chelsey v. State, 49 S. E. 258, 259, 121 Ga. 340. An instruction that, if any person in the perpetration, or in the attempt to perpetrate, a robbery shall take the life of the person intended to be robbed, he is guilty of "murder in the first degree" is erroneous as eliminating malice. Oates v. State, 103 S. W. 859, 860, 51 Tex. Cr. R. 449. Under Kirby's Dig. § 1766, declaring that all murder by means of poison, lying in wait, or other malicious or premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate arson, rape, rob bery, burglary, or larceny, shall be deemed "murder in the first degree," when the fact of killing alone is proved, it will be presumed that the crime is murder in the second degree. Ferguson v. State, 122 S. W. 236, 237, 92 Ark. 120. "Murder," within Rev. St. 1908, § 1624, cl. 4, providing that murder perpetrated by any act greatly dangerous to the lives of others, but indicating a depraved mind regardless of human life, shall be "murder in the first degree," is such as is committed by an act greatly dangerous to the lives of persons Where there exists a design deliberately other than the one killed, and showing a formed in the mind of accused to take life, reckless disregard of human life; and it and death ensues from his act, the homicide therefore does not include a killing resulting is "murder in the first degree"; but where from intentional shooting of the individual there exists no design to take life, but death slain, and where there is no element of what results from an unlawful act of violence, and is termed "universal malice" shown. Longi- there is no adequate provocation, the hominotti v. People, 102 Pac. 165, 168, 46 Colo. 173 cide is murder in the second degree. State (citing and adopting Darry v. People, 10 N. Y. v. Honey (Del.) 65 Atl. 764-766, 6 Pennewil', 120; Mitchell v. State, 60 Ala. 26; Jewell v. | 148. Territory, 43 Pac. 1075, 4 Okl. 53; and Golding v. State, 8 South. 311, 26 Fla. 530). Revisal 1905, § 3631, declaring that murder by means of poison, lying in wait, etc., or by any other kind of willful, deliberate, or premeditated killing, shall be murder in the first degree, and that all other kinds of mur-petration of the robbery of another is "murder shall be murder in the second degree, classifies the different kinds of murder at common law, without giving any new definition, and the malice essential to constitute murder in the first degree need not arise from personal ill will, but may exist where there has been a wrongful and intentional killing without lawful excuse or mitigating circumstances. State v. Banks, 57 S. E. 174, 176, 143 N. C. 652. Murder may be committed without any motive. It is the intention, deliberately formed after premeditation, so that it becomes a definite purpose to kill, and a consequent killing without legal provocation or excuse, that constitutes "murder in the first degree." The existence of a motive may be evidence to show the degree of the offense, or to establish the identity of the defendant as the slayer; but motive is not an essential element of the crime, nor is it indispensable to a conviction of the person charged with its commission. State v. Adams, 50 S. E. 765, 768, 138 N. C. 688. The statute, providing that all murder in robbery or in the perpetration of robbery is "murder in the first degree," eliminates murder in the second degree in homicide committed in robbery or in the perpetration of robbery, and the killing of one in the per der in the first degree." Milo v. State, 127 S. W. 1025, 1029, 59 Tex. Cr. R. 196. Revisal 1905, § 3631, declaring that murder by means of poison, lying in wait, etc., or by any other kind of willful, deliberate, or premeditated killing, shall be "murder in the first degree," and that all other kinds of murder shall be "murder in the second degree," classifies the different kinds of murder at common law, without giving any new definition. State v. Banks, 57 S. E. 174, 176, 143 N. C. 652. The degree of murder under the statute declaring that murder perpetrated by any kind of willful, deliberate, and premeditated killing shall be "murder in the first degree," and all other kinds of murder shall be murder in the second degree, depends on the question whether the crime was willful, deliberate, and premeditated, and on that question it becomes material whether accused was in such a condition of mind by reason of intoxication as to be incapable of deliberation and premeditation. Brennan v. People, 86 Pac. 79, 81, 37 Colo. 256. Murder in second degree distinguished "Murder in the first" and "murder in the The characteristic quality of "murder in second degree" are distinguished, in that the first degree," and that which distinguish |