
    The State v. Pacquett, Appellant.
    
    Murder. Instructions are erroneous, which authorize the jury to convict of murder in the first degree without requiring them to find both malice and deliberation; and the error is not cured by the giving of an instruction which correctly defines the offense.
    
      Error to New Madrid Circuit Court.
    
    Reversed.
    
      H. F. $ C. F. Hawkins for plaintiff in error.
    
      E. H. McIntyre, Attorney General, for the State.
   Norton, J.

The defendant was indicted at the March term, 1880, of the New Madrid county circuit court, for murder in the first degree for killing one James Barnes on the 4th of January, 1880. He was put upon his trial at November term, 1881, of said court, and convicted of the offense charged, and prosecutes to this court a writ of error, assigning among other errors the action of the court in giving improper instructions.

In the first instruction given for the State, the jury were told that if they believed the defendant willfully, deliberately and premeditatedly killed the deceased, they would find him guilty of murder in the first degree. The vice of this instruction is, that it wholly ignores the question of malice which is a necessary element in the crime of murder in the first degree, and authorized the jury to find defendant guilty of that crime, without finding that the killing was with malice aforethought.

In another instruction given for defendant the jury were told that if defendant willfully, premeditatedly and designedly, and of his malice aforethought, killed deceased, they would convict him of murder in the first degree. The vice of this instruction is, that it wholly ignores deliberation as an element of the crime, and authorized a conviction of defendant for a crime without finding one of the elements essentially necessary to constitute the crime.

The error committed in giving these instructions was not cured by another instruction which the court gave of its own motion, and which properly submitted to the jury all the elements constituting the crime of murder in the first degree. In the case of the State v. Hill, 69 Mo. 451, it was held that in a ease for murder in the first degree, “ it is a fatal error to give an instruction which ignores the element of deliberation, notwithstanding another instruction is given correctly defining the crime.” Eor the errors above pointed out, under the authority of the following cases the judgment must be reversed: State v. Simms, 68 Mo. 305; State v. Dearing, 65 Mo. 532; State v. Mitchell, 64 Mo. 192; Jones v. Talbot, 4 Mo. 279; Hickman v. Griffin, 6 Mo. 37.

As the cause will be remanded it may be well to observe that the instructiou given by the court, as asked by the State, on . the question of insanity, laid down the rule correctly as repeatedly adjudged by this court, and that bn a retrial of the cause the instruction given by the court of its own motion upon that subject, should not be given.

Judgment reversed and cause remanded,

in which all concur.  