
    [No. 835.]
    THE STATE OF NEVADA, Respondent, v. AH MOOK, Appellant.
    Cbiminal Law — Tbanscbipt on Appeal. — The Supreme Court, in tho examination of the transcript on appeal in a criminal case cannot look at anything contained therein that is outside of the record provided for by statute.
    Chabge op the Couet must be embodied in a Bill op Exceptions.— The charge given by tho court of its own motion is not a part of the record unless it is included in the hill of exceptions.
    Dutx op Clebk in pbepaeing Kecobd.- — The papers that constitute the record or judgment roll in a criminal case, are specified in volume 1, Compiled Laws, 2075, and it is the duty of the clerk to fasten them together and file them within five days after the entry of a judgment of conviction.
    Idem — Bill op Exceptions. — It is the duty of the clerk to attach the hill of exceptions to the rest of the judgment roll before it is filed, just as it was left by the judge who signed it. He must not add to it, or subtract from it, anything whatever.
    Homicide — Insteuotions belating to Muedee. — The court, at the request of the prosecution, instructed the jury ‘ ‘ that the true difference between simple murder (or murder of the second degree) and murder of the first degree, under our statute, does not consist in the length of time the assailant must have deliberated, but whether he had at or before striking the fatal blow or firing the fatal shot formed the design to slay the deceased. If such design was formed, however recently, it will he murder of the first degree’ Held, that when read in connection with the other instructions it could not have prejudiced the defendant.
    Idem. — The court, at the request of the prosecution, also instructed the jury “that the premeditation or intent to kill need not be for a day, an hour, or even a minute, for if the jury believe from the evidence there was a design, a determination to kill, distinctly formed in the mind at any moment before or at the time the pistol was fired, it was a willful, deliberate and premeditated killing, and therefore murder in the first degree:” Held, ambiguous hut not necessarily erroneous, and that when read in connection with a proper instruction defining manslaughter, it could not have prejudiced the defendant. (Hawlex, O. J., dissenting.)
    
    
      Idem — Meaning oe Deliberation. — The words “ a design, a determination to kill, distinctly formed in the mind,” in their natural sense imply deliberation. (Hawley, C. J., dissenting.)
    
    Idem — Instructions on Same Point, How Construed. — Where two instructions are given on the same point, one clearly and unequivocally correct, the other ambiguous and susceptible of two constructions, according to one of which it is correct, but according to the other of which it is erroneous, as it is the duty of the jury to read and consider all the instructions together they will put that construction upon the doubtful one which makes it consistent with the. other, and reject that construction which brings the two in conflict.
    Appeal from tbe District Court of the Sixth Judicial District, Eureka County.
    The facts are sufficiently stated in the-opinion of the court.
    
      Lends & Deal, for Appellant.
    I. The instructions in this case are erroneous from beginning to end; and we venture the assertion that no jury could possibly have heard them without being misled. (The points made by counsel as to errors in the charge of the court of its own motion are omitted, because said charge is not considered by the court.) The law always presumes injury from an error, unless it is perfectly manifest it could not have that effect. {State v. McGinnis, 5 Nev. 337; States. Parsons, 7 Id. 57; State v. Van Winkle, 6 Id. 340.)
    A person may unlawfully, feloniously and deliberately kill another, and the homicide be only manslaughter. (10 Mich. 212; 2 Bishop Cr. Law, 676.) If there be provocation .sufficient, a man may kill another deliberately, and still the offense would only amount to manslaughter.
    II. The first instruction asked by the prosecution is incorrect, because it virtually ignores deliberation, which is an element of murder in the first degree under our statute. Now, deliberation indicates a process of the mind antipodal to that described in the instruction; it conveys the idea of time taken to arrrive at a conclusion; that the determination was arrived at after reflection and thought, and excludes the conclusion that the legislature intended a hasty and inconsiderate decision. But, under this instruction, the jury are charged that, no matter how hasty or inconsiderate the determination, the homicide would be murder if there was an intent to kill.
    III. Instruction number two ignores all the defense of the defendant, and directly tells the jury that if the defendant intended to kill Ah Long, it was a willful, deliberate and premeditated killing. Now, whilst the jury may have believed that the defendant intended to kill Ah Long, they may have also believed that he acted under great provocation; but under this instruction they could not consider such a fact, but were compelled, if the killing was intentional, to convict of murder in the first degree. The charge and. instructions, from beginning to end, were given under a gross misunderstanding of the law.
    
      John II. Kittrell, Attorney-General, for Respondent.
    I. The charge of the court, given of its own motion, cannot be considered, because not embodied in the bill of exceptions. (State v. Baker, 8 Nev. 146; States. Forsha, 8 Nev. 139; State v. Burns, 8 Nev. 255; State v. Darling, 4 Nev. 413.)
    II. Instruction, not one asked by the prosecution, was intended to apprise the jury of the distinction existing between murder in the first and murder in the second degree. While it does not contain as full and as complete a definition of the 'difference between the two degrees of murder as it might, still the substantial distinction is set forth. It is tantamount to informing the jury that murder in the first degree consists in a deliberate and specific intention to take life, and that where there is an absence of such intent, that it is murdet in the second degree; provided, that nothing was wanting to make the crime murder in the first degree, save the intent previously formed to take life.
    For a full discussion of what is murder in the first, and what is murder in the second degree, see Whar. C. L., 2d ed. 170, et seq.; Commomoealth v. Green, 1 Ash. 289; Gornmomuealth v. Murray, 2 Ash. 43; Commonwealth v. Keeper, 2 Ash. 227; People v. Bealoba, 17 Cal. 389. These suggestions also apply to instruction two.
    III. There is nothing in the defendant’s testimony which tends to reduce his crime from that of murder to manslaughter. His testimony shows that he fired the fatal shot prompted by deliberate revenge, and not in the heat of blood. This is murder. (Bex v. Thomas, 7 C. & P. 817; State v. Yarbrough, 1 Hawks, 78.)
    The law assigns no limits within which cooling time may be said to take place. Every case must depend on its own circumstances; but the time in which an ordinary man, in like circumstances, would have cooled, may be said to be the reasonable time. (State v. McGants, 1 Spear’s, 384; 7 Jones N. C. 206.) For authorities bearing more or less upon the question of provocation and cooling time, see 6 Iredell, 164; 18 Mo. 419; 8 Car. & Payne, 182; 6 Black. 299; 18 Ala. 720; 7 Car. & Payne, 142; 20 Mo. 58.
   By the Court,

Beatty, J.:

The defendant in this case appeals from a conviction of murder of the second degree. The principal point made in support of the appeal is that the district court erred in its charge to the jury. But there is nothing in the record to show what the charge of the court was. All that is stated in the bill of exceptions is that “the court then, after argument by counsel, gave to the jury the instructions herein of record, marked plaintiff’s instructions, numbers 1, 2 and 3, and instructions of its own motion.” In The State v. Huff (11 Nev. 22), we commented upon and condemned the practice of referring to loose papers on file in the case instead of incorporating them in the bill of exceptions; but in that case, in the absence of any objection on the part of the state, and because of the fact that all the original papers had been destroyed by fire, we consented to treat the document in question as a part of the record.

Here, however, the objection is taken and urged that the paper copied into this transcript as the charge of the district court, given of its own motion, is not a part of the record, and cannot be considered.

The objection, in our opinion, is well taken. We can look at nothing outside of the record (C. L. 2105), and the charge given by the court of its own motion in a criminal case is not of itself a part of the record, and can only be made so by being included in a bill of exceptions. (C. L. 2051, 2075; State v. Forsha, 8 Nev. 139.) A bald statement, that the court charged the jury of its own motion, does not make the charge so given a part of the bill of exceptions, but merely puts upon record the fact that the court did give an instruction which was not asked. If that fact is all that the party desires to have appear, then his bill of exceptions is sufficient; but if his object is to avail himself of some supposed error in the charge, the charge itself must be put upon record.

Now, it is perfectly apparent that the legislature never intended that the record in a criminal case should consist of a bundle of loose papers. The papers that are to constitute the record or judgment roll are specified in the statute (C. L. 2075), and it is made the duty of the clerk to fasten them together and file them within five days after entry of a judgment of conviction. The bill of exceptions is one of the papers to be so fastened to the rest of the judgment roll before it is filed; but it is no part of the clerk’s duty, aud he has no right to read the bill of exceptions and attach to it, or copy into it, the papers and documents which he may consider are referred to. All he has to do with the bill of exceptions is to attach it to the rest of the record before that is filed. He can neither add to nor subtract from it, but must leave it as it was left by the judge who signed it. If, then, it refers to other papers that are no part of the record, those papers are not bound up in the judgment roll. They remain as they were before, loose, disconnected, unauthenticated, liable to loss, alteration or substitution. It may be that in practice these evils would never be experienced, but the legislative will has been clearly expressed that the record of a conviction in a criminal case shall be made up, authenticated and preserved in a particular mode. There is nothing unreasonable in the statutory requirements, and they ought to be adhered to. If they are adhered to there will be no room for question as to what is and what is not of record; but if they are disregarded, questions may arise as to the genuineness of documents referred to in the bill of exceptions, and when such questions can be avoided they clearly ought to be.

The instructions which the court gave at the request of the prosecution are, however, a part of the record (0. L. 2011, 2012, 2051, 2075), and it is claimed that the following were erroneous:

“ No. 1. The jury are instructed that the true difference between simple murder (or murder of the second degree) and murder of the first degree, under our statute, does not consist in the length of time the assailant must have deliberated, but whether he had, at or before striking the fatal blow or firing the fatal shot, formed the design to slay the deceased. If such design was formed, however recently, it will be murder of the first degree.
“No. 2. The jury are instructed that the premeditation or intent to kill need not be for a day, an hour or even a minute, for if the jury believe from the evidence there was a Resign, a determination, to kill distinctly formed in the mind at any moment before or at the time the pistol was fired, it was a willful, deliberate and premeditated killing, and therefore murder of the first degree.”

In order to a clearer comprehension of the points made in reference to these instructions a brief recital of the substance of the testimony will be necessary.

According to the testimony for the state the defendant shot and killed another Chinaman while he was under arrest in the hands of an officer, and just as he was being carried into jail. The defendant, testifying in his own behalf, admitted the killing, but stated that a very short time previous thereto he had witnessed an altercation between the deceased and his (defendant’s) brother, which ended in the shooting and wounding of his brother by the deceased; that he had asked the deceased why he shot his brother; that the deceased replied that it was none of his business, and that if he did not look out he would kill him, too; that he (defendant) thereupon stepped into his house, thirty feet distant, and armed himself with a pistol; that he came out, saw the deceased pursued and captured by the officers, intercepted him at the door of the jail and shot him. It was a clear case of a voluntary and unlawful killing on the defendant’s own statement of the circumstances, and the only question was as to the degree of his guilt, whether murder of the first degree, murder of the second degree, or manslaughter. It seems to have been conceded in the district court, on all sides, that the provocation (seeing his brother shot by deceased) was sufficient in law to mitigate the crime of defendant to manslaughter, provided he acted under the impulse of passion and before the expiiation of reasonable cooling time, and the instructions asked by the defendant and given by the court cover these points. The following is one of the instructions so asked and given:

“The jury are instructed that the killing of a human being upon sudden heat of passion, caused by a provocation sufficiently strong to make the passion irresistible, the killing is manslaughter, and not murder, provided that sufficient cooling time did not intervene between the provocation and the killing for the voice of reason to be heard. Tbe law assigns no limit within which cooling time may be said to take place. Every case must depend on its own circumstances, and if you find from the evidence in.this case that the defendant, upon sudden heat of passion, caused by provocation sufficiently strong to make the passion irresistible, and that sufficient cooling time did not intervene, you will find the defendant guilty of manslaughter.”

It is evident that a clerical mistake has occurred in the copying of this instruction, but it shows clearly enough that the jury was instructed in language of his own choosing, and in terms quite as favorable as the law warrants, that the defendant was only guilty of manslaughter, if he acted under the impulse of passion, caused by a sufficient provocation, and before the intervention of reasonable cooling time. He can certainly have no fault to find as to the manner in which the law of voluntary manslaughter was laid down. And,if the jury attended to this instruction, and understood its ¿neaning, we must conclude that in convicting him of mu/rder in the second degree, they decided, as a matter of fact, either that he had never been impelled by passion, or tliat it had had time to subside before the shooting. The testimony in tlie case would have well warranted either finding. From the defendant’s own account of the transaction, he appears to have proceeded with the utmost coolness and deliberation throughout, and there was other testimony strongly tending to negative the existence of uncontrollable passion at the time of the shooting.

This made it proper for the prosecution to ask the court for instructions, based upon the hypothesis that, at the time of the shootiúg, the defendant’s mind was free from passion and under the dominion of reason; and it is upon that hypothesis that the two instructions first above quoted are evidently based. They are not to be read by themselves, but in connection with each other and the rest of the charge. So read, we do not think they can have prejudiced the defendant.

Taking the second one alone, out of its context, it will, perhaps, bear the construction which defendant puts upon it; and whether a lawyer would or would not understand from it that a bare intent to kill makes the killing murder, it is certainly not improbable that a jury might understand it in that sense. Of course, if a jury were so instructed in a case like this, it would be error. It requires something more than a bare intent to kill to make a killing murder in any degree. In all cases of voluntary manslaughter, such as defendant contended this was, there is an intent to kill. But it is supposed in such cases that the slayer is incapable of exercising his reasoning faculties on account of the predominance of passion, and it is therefore said that there is no deliberation and no malice aforethought. In order that the intent to kill may ^constitute express malice, it must be formed in a mind free from irresistible passion and capable of reason. If, instead ,of this, the intent to kill is the result of a mere blind impialse of passion, the killing cannot be murder in the first degree, and will not even be murder in the second degree unless the passion was caused by an insufficient provocation or a Reasonable cooling time had elapsed before the killing. Therefore, we say again, that if the jury in this case had befen instructed that a bare intent to kill on the part of the diefendant made liis crime murder, the instruction would have been erroneous, and tbe judgment ought to be reversed. But we do not tbink tbe instructions complained of, read in connection witb tbe rest of tbe charge, could have been so understood. They undertake to state tbe distinction between murder of tbe first and murder of tbe second degree. In another instruction, tbe jury are told that if there was sufficient provocation, irresistible passion, and no sufficient cooling time, tbe defendant is only guilty of manslaughter. But suppose there was no passion sufficient to overpower tbe reason, or suppose a reasonable cooling time bad elapsed before tbe killing? This hypothesis is not expressed in tbe instructions, but is implied, and on such hypothesis they do not misstate tbe law, at least not in a manner that could possibly have prejudiced tbe defendant. Tbe expressions which occur throughout tbe instructions, such as “ premeditation,” “deliberation,” “design, determination, distinctly formed in the mind,” all imply tbe absence of overpowering passion, so that tbe instructions really mean this: If tbe defendant, instead of being impelled by passion was impelled by deliberate revenge — if be was under tbe control, instead of being beyond the control, of bis reason —it matters not bow instantaneously be may have acted upon tbe design to kill, be was guilty of murder in tbe first degree.

If this was tbe meaning of tbe instructions, and read in connection witb tbe instruction in regard to manslaughter, we tbink they must have been so understood; then they stated tbe law applicable to this case correctly. If a killing is unlawful, and if there was a design to kill distinctly formed in tbe mind of tbe slayer — if tbe intent to kill existed in a mind controlled by reason and not impelled by passion — an instant before striking tbe fatal blow, tbe killing is murder of tbe first degree. Tbe time a man deliberates is wholly immaterial. Tbe question is: has be deliberated at all? and whether be has or not depends solely upon whether bis mind, at tbe moment of such intentional killing, is or not under the dominion of reason. If be is capable of deliberation bis intent to kill must be deliberate, and there is express malice. This doctrine is elementary. The text-books are full of it, and all the authorities sustain it.

"We wish to say, however, in conclusion, that we do not approve these instructions as models to be followed hereafter. The most that can be said in their favor is that in this case they did not prejudice the defendant. The first appears to have been drawn from the opinion of the chief justice in Millain’s case. The language of that opinion was proper enough in the connection in which it was used, but it is neither a full nor a perfectly clear statement of the distinction between the two degrees of murder, and there are many cases in which it would be confusing, if not absolutely erroneous. The second is still more objectionable. Its meaning is not clear, but ambiguous and indefinite. It is susceptible of a construction according to which it would be erroneous, and, but for the clear and definite instruction on the subject of voluntary manslaughter by which it was accompanied and qualified in this case, must have been so construed.

The judgment of the district court is affirmed.

Hawley, C. J.,

dissenting:

With that portion of the opinion of the court which decides that the instructions given by the court of its own motion cannot be considered, because not embodied in the bill of exceptions, I fully concur.

I also agree with the court that instruction number one given at the request of the prosecution, does not correctly state the true rule between murder of the first and murder of the second degree. But I dissent from some of the views expressed by the court relative to instruction number two.

In this case it is very properly admitted by the attorney-general and by the court that the second instruction, standing alone, is ambiguous and susceptible of an erroneous construction. This being true, upon what hypothesis can it be considered as correct ? In what portions of the other instructions are any words to be found Avhich qualify, relate to, or in any other manner explain the language or cover tbe principle of law intended to be contained in this instruction? Can we interpolate qualifications that do not anywhere appear in any of the instructions given ? It seems to me that if any effect is to be given to the language used, as expressing the intention of the court giving it, it means just what it says and nothing else.

Admitting that the instruction relating to voluntary manslaughter was proper, yet neither in it or elsewhere is there any attempt to draw the line distinguishing murder from manslaughter. The jury was not told that if the defendant was not controlled by passion, but was impelled by deliberate revenge, or if he was under the control of his reason, then if he had formed the deliberate design to kill, even for an instant, it was murder in the first degree;nor in my judgment can any such meaning be reasonably implied from the language of the instruction. On the other hand, it does appear to me that the jury was in effect told that notwithstanding the facts stated in the instruction defining manslaughter, yet, to quote the language of the instruction, “if the jury believe from the evidence there was a design, a determination, distinctly formed in the mind at any moment before or at the time the pistol was fired, it was a willful, deliberate and premeditated killing, and therefore murder in the first degree.” This is not the law. When the facts of a homicide clearly show that the killing was done with an intent to take life, and the act of killing is not accompanied by any circumstances of justification, extenuation or excuse, as recognized by law, then the act of killing would be murder, and in such a case the deliberate and premeditated intent to kill need not, in order to make it murder of the first degree, have existed for any given length of time, it being sufficient that such intent actually existed before the commission of the act from which death ensued. ‘ ‘ But, ” as was said by Christiancy, J., in Maher v. The People, “if the act of killing, though intentional, be committed under the influence of passion or in heat of blood, produced by an adequate or reasonable provocation, and before a reasonable time has elapsed for the blood to cool and reason to resuine its habitual control, and is the result of the temporary excitement by which the control of reason was disturbed rather than of any wickedness of heart, or cruelty, or recklessness of disposition, then the law, out of indulgence to the frailty of human nature, or rather in recognition of the laws upon which human nature is constituted, very properly regards the offense of a less heinous character than murder, and gives it the designation of manslaughter.” (10 Mich., 219).

It does not appear in any of the instructions presented by the record, that the jury was informed that, if the act of killing was intentional, the offense might, nevertheless, be reduced to manslaughter, if committed “upon a sudden heat of passion caused by a provocation apparently sufficient to make the passion irresistible.” (1 Comp. L. 2324.) The distinction between murder and manslaughter does not depend upon the question whether there was an intent to kill. (2 Bish. on Or. L. 676; Lewis, U. S. Cr. L. 396; Dennison v. The State, 13 Ind. 510; Maria v. The State, 28 Tex. 698; People v. Fred, 48 Cal. 436.) “Whether the homicide amounts to murder, or manslaughter merely,” to quote the language of Niles, J., in the case last cited, “does not depend upon the presence or absence of the intent to kill. In either case there may be a present intention to kill at the moment of the commission of the act. But when the mortal blow is struck in the heat of passion * * * the law, out of forbearance for the weakness of human nature, will disregard the actual intent, and will reduce the offense to manslaughter. In such a case, although the intent to kill exists, it is not that deliberate and malicious intent which is an essential element in the crime of murder.”

In the absence of any explanation as to the difference between miprder and manslaughter in cases like the present, where there is an intent to take life, it does not appear to me that the jury could have understood the instruction in any other sense than that which its language imports. It may be that the evidence in this case would have justified the jury in finding the defendant guilty of murder in the first degree, but there was evidence tending to show that the act of killing was the result of a sudden and violent impulse of passion, produced by an adequate provocation, sufficient to reduce the degree of crime to manslaughter, and hence the defendant was entitled to have correct instructions given upon this point; and having been convicted of murder in the second degree, the error in the instruction was, in my opinion, of such a character that it may have misled the jury to the defendant’s prejudice.

I differ from the court in its conclusions that the words “premeditated,” “a design, a determination, to kill, distinctly formed in the mind,” as used in the instruction, were sufficient to inform the jury of the distinction which it is claimed was intended to be made by the court below. The word “premeditated” is used as synonymous with “intent,” and hence, in determining what was meant, we must leave it out, and there is no other word or expression in this instruction which necessarily implies “ deliberation and malice aforethought,” without which the offense of murder in the first degree cannot be established. The legal definition of the word “intention,” according to Bouvier, is “ a design, resolve or determination of the mind,” so that in the legal, as well as ordinary signification of the words, the jury may have understood the instruction to mean: That if there was an intent to kill at any moment before or at the time the pistol was fired, “it was a willful, deliberate and premeditated killing, and therefore murder in the first degree.” In this case, although there was an intention to kill, yet if the jury believed from the evidence that the killing was “without malice, express or implied, and without any mixture of deliberation,” the crime was only manslaughter. (1 Comp. L. 2324.) It is not, perhaps, necessary that the court should give instructions embodying all the distinctions between the different degrees of crime. As long as the court gives correct instructions, the defendant cannot complain. If he wishes more explicit instructions, he must prepare them, and ask the court to give them. I agree with the court, that when the instructions, construed together as a whole, clearly set forth the law of the case, an ambiguity in some portion thereof will not necessarily vitiate the verdict. But when an error does clearly appear in an instruction given by the court, and the error has not been cured by other instructions, it must in some manner affirmatively appear that the defendant could not have been prejudiced by the error. In my opinion it does not so appear in this case.

I think the judgment ought to be reversed.

A rehearing was granted in this case at the request of counsel for appellant, to enable them to fully argue the points upon which they relied for a reversal. In the petition for a rehearing, counsel for appellant, among other things, contended that the second instruction discussed in the opinions was a flagrant violation of the law; that it was not cured by any other instruction; that there were no other instructions which either modified or added to it; that it was an attempt to define murder, and that the instruction referred to by the court is one defining manslaughter. That the jury, after reading this instruction, if they were of the opinion that the defendant had formed a design to kill at any time before the fatal act, might have then stopped and found the defendant guilty of the higher offense without disregarding the definition of manslaughter in instruction number three, because in instruction number two the entire proposition is that if the design is formed before the killing, then the crime is murder. The jury accept that as a fact to control them; there is no qualification of it, no modification. It is a statement of an abstract legal proposition, to hold good in all cases. In other words, the test whereby to determine whether the offense be murder or manslaughter is, was there a distinct design formed to kill before the fatal act? That the instruction means nothing else, and cannot mean anything else, with any kind of regard for the use of language. The jury, being so instructed, may have found the defendant guilty of murder, provided they believed such design did exist or was formed, and they could have so concluded without doing violence to the instruction defining manslaughter, because instruction number two is to the effect that, if there be a design to kill, then the killing is murder, while the manslaughter defined by tbe judge may be a killing upon a provocation without any such preconceived design, and a jury simply looking to the language in which they were instructed could come to no other conclusion.

Upon a rehearing the following opinions were filed at the October term, 1877:

By the Court,

Beatty, J.:

It is a subject of regret with the court that counsel for appellant did not avail themselves of the opportunity of a rehearing to elaborate their views of this case in an oral argument. The rehearing was ordered, not because we were convinced by the arguments advanced in the petition that our former decision was erroneous, but because, on account of the division of opinion in the court and the suggestion of counsel that they had been misled by the absence of the attorney-general at the time the case was first argued, we were desirous of affording them an opportunity to reply to the points made by the attorney-general and to convince us of our error, if we had committed one. They have chosen, however, to resubmit the case on their original brief, and their petition for a rehearing — assuming that the questions involved are too plain to admit of a difference of opinion, and that our former decision was the result of inadvertance and want of consideration. Counsel are mistaken in supposing that the case was decided without full consideration of all the points of their argument, or without a thorough knowledge of all that is contained in the record. The views of counsel are, in the main, those which were adopted in the dissenting opinion of the chief justice, and the fact that he differed with the other members of the court led to a thorough reconsideration of the majority opinion before it was filed. Upon such reconsideration we were satisfied, as we still are, that the decision was correct. We have only to regret that we did not modify one or two unguarded expressions in the opinion, which have led to a misconception of its meaning. We think that on a careful reading it ought not to be misunderstood; but, since it has been misunderstood by counsel for appellant, we are glad of the opportunity to restate our position more clearly, if we can.

We will, however, before adverting to the point as to which we have been, misunderstood, pay some attention to other matters dwelt upon in the petition for rehearing.

Vigorous exception is taken to the opinion imputed to the court that the verdict in this case was a proper one. Counsel “ protest that there is no case on record where a man was convicted, by an impartial jury,.of murder upon the facts developed in this case.” They “can account for the verdict upon no hypothesis except that it was the result of hatred of Chinamen, with the fear of newspaper censure, together with the bold and glaring misstatements of the law by the court below.” They assert that “ the evidence all through shows that the defendant was acting under the most uncontrollable passion, induced by an act that would have impelled any rational being to do what he did.”

“Let us suppose,” they say, “that a white man finds his brother shot down in cold blood. He addresses the murderer immediately upon the perpetration of the act, and the only answer he gets is a threat against his own life. If, under such circumstances, he should immediately procure a weapon and kill the murderer of his brother, will any one say that such a man is guilty of murder ? We venture the statement that no jury in creation would convict him of any such crime, and ninety-nine out of a hundred would unhesitatingly acquit him altogether, and yet this court say that the jury in this case properly convicted this defendant. We cannot believe that the court has read the evidence with that care that it should.”

This vehemence of statement is perhaps not unbecoming, and at all events is pardonable, in counsel, whose sympathy for their client in cases of this character may always be expected to cloud their judgment to a greater or less extent, but we must be allowed to protest that we expressed no opinion as to the propriety of the verdict in this case. All we said, and all we were called upon to say, was that, under the testimony, which would have well warranted the jury in finding either that there' was no uncontrollable passion or that there was cooling time, it was proper' for the court to give instructions based upon that hypothesis. We venture still to adhere to that opinion, and should do so even though the testimony for the defense had been as strong as counsel represent it. A prima facie case of murder was proved. The court could not assume that the jury would believe the testimony as to mitigating circumstances, but, on the contrary, had to assume, in giving its instructions, that, on the question of sufficient provocation or reasonable cooling time, the finding of the jury might be against the defendant. So the point decided would have been correctly decided if the testimony had been such as counsel imagine it to have been. But in truth the case bears a very slight resemblance to the version of it which we have quoted from the petition for a rehearing. ¥e should be sorry to be understood as saying that this verdict — murder of the second degree — was exactly the proper one. What we said, and what we repeat is, that the evidence warranted a graver verdict. The defendant did not “ find his brother shot down in cold blood.” He and his brother were in the street in front of Ah Long’s house. His brother was assailing Ah Long with the foulest and most abusive epithets, and challenging him to come out. He came out, not in cold blood, but in response to challenges and insults. He shot at defendant’s brother, but there is no testimony that he brought him down, or even injured him seriously. All we know is that itwas a flesh wound. Ah Long, then, was not the “murderer” of defendant’s brother, and his conduct was not unprovoked. If we were to adopt the notions of counsel, that the law ought to be made to fit the verdicts that the juries of the country have found, or would or would not find, we-might even say that Ah Long was justified; for we are not without experience in this state of verdicts of acquittal under circumstances quite as unfavorable to the defendants as these were to Ah Long.

The defendant did not kill Ah Long “immediately.” He was not seized with a sudden, uncontrollable impulse to slay. He did not rush off at once to procure a deadly weapon, but stopped to ask Ah Long why he had shot his brother. On receiving a threatening answer, he went and got his pistol for the purpose, he says, of shooting Ah Long “if he saw him.” On this testimony alone it would have appeared that he got his pistol, not as a means of gratifying an impulse of passion, but as a measure of precaution or means of revenge. But his subsequent conduct is still more significant. Did he start in headlong pursuit of Ah Long, impelled by overmastering passion to seek his life, and oblivious of everything else? He did the very opposite. He saw the police capture Ah Long, gave up the pursuit himself without going near him at that time, and went for a surgeon to attend his brother’s wound. His passion was so far under his control that he could suspend the gratification of it until his brother was provided with a surgeon. This circumstance alone negatives the idea of irresistible passion, for unless counsel are going to contend— and it would be suicidal to do so — that he calculated upon getting a surgeon for his brother and getting back to the jail in time to intercept Ah Long before he was locked up, it proves that he had laid aside the notion of killing him for the time being.

• Moreover, there was, in the situation of Ah Long at the moment he was shot, much to disarm the passion of a reasonable man. He was a captive in the custody of the officers of the law, disarmed, helpless, and at the very door of the jail.

It was upon such testimony as this that the jury had to decide. We have not said, and we are not called upon to say, whether their verdict was the proper one or not. We are quite willing to say, however, that if it had been murder of the first degree, instead of murder of the second degree, it would have been well warranted by the testimony of the defendant himself. The verdict that was found, we think, may be accounted for without reference to hatred of Chinamen, fear of newspaper censure, or any supposed errors in the instructions. If the jury, giving the prisoner the benefit of every reasonable doubt, thought that he killed the deceased under the influence of uncontrollable passion, and without any mixture of deliberation, and if at the same-time they thought that the circumstances were not such as to justify the existence or persistence of irresistible passion in a reasonable man, their verdict was perfectly consistent with the law, and was based upon a very charitable view of the defendant’s conduct.

Another matter to be disposed of before coming to the two instructions which were discussed in our former opinion, is the claim of counsel that, although the instructions which are said to have been given by the district court of its own motion are not in the record, and cannot, therefore, be made the basis of our decision, they ought, nevertheless, to be considered to a certain extent, and allowed some undefined weight in shaping our conclusions.

We think it ought not to be necessary to say that it is the duty of this court to decide the questions of law that are properly presented for its decision, without allowing itself to be prejudiced or influenced by matters of which it cannot take judicial cognizance. If these supposed instructions are not in the record, we do not know that they were ever given. If, notwithstanding our duty to ignore them, wo should choose to believe that they were given in the case, and if we should also consider them as flagrantly erroneous and as prejudicial to the defendant, as in the opinion of his counsel they were, we might not be able to consider the questions presented by the record as impartially as Ave ought, but just so far as we allowed ourselves to be influenced by such extraneous matters we should be derelict. What is in the record it is our duty to allow its full weight; Avhat is not in the record cannot be used as a make-weight to eke out an argument that would be incomplete Avithout it.

We come uoav to instructions numbers one and two, upon the construction of which our decision must turn. It is constantly assumed in the petition for a rehearing that, in our former opinion, we conceded those instructions to be clearly erroneous; that, taken by themselves, they misstated the law of this case. A careful reading of that opinion will convince counsel of their mistake. We never decided, and never intended to decide, the proposition which they so vigorously combat. We never entertained the opinion that where two instructions are given covering the same point, one clearly erroneous and the other clearly correct, that the erroneous instruction is cured by the correct one. The proposition we endeavored to state and to enforce was this: Where two instructions are given on the same point, one clearly and unequivocally correct, the other ambiguous and susceptible of two constructions, according to one of which it is correct, but according to the other of which it is erroneous, since it is the duty of the jury to read and consider all the instructions together, they will put that construction upon the doubtful one which makes it consistent with the other, and reject that construction which brings the two in conflict. This is a principle of construction universally acknowledged, because it is obviously a reasonable principle, and because any contrary principio would be as obviously unreasonable.

Now, we did not assume in our former opinion all that we are charged with having assumed, but we do assume some things that the counsel think ought not to be assumed. It is the duty of juries to read and consider all the instructions of the court, and we presume that they do so. It is their duty to understand the instructions, and we assumed that, in the effort to find out their meaning, they resort to the same reasonable and obvious principles of construction by which courts are guided in the interpretation of a doubtful clause of a statute or a contract. Of course, if these assumptions are unfounded, our decision of this case is all wrong; but we' entertain no doubt of their correctness, and we think they fully support everything that has been decided.

We did not say in our former opinion that instruction number two misstated the law applicable to this case. We said that, taken by itself, it would bear the construction placed upon it by counsel, and that a jury might understand it in that sense. We said in One place, speaking of both instructions, “on such hypothesis they do not misstate the law; at least not in a manner which could possibly have prejudiced the defendant.” Here is an admission that in some particular they do misstate the law, and so they do. They assume to state the distinction, and the whole distinction, between murder of the first and murder of the second degree; but they fail to do so, for the reason that there are cases of murder in •which the intent to kill need not exist, as where a killing is perpetrated in the commission or attempt to commit a felony. The same defect of these instructions is again alluded to at the close of the opinion, where it is said, speaking of number one: “It is neither a full nor a perfectly clear statement,” etc. It is not a full statement of the distinction between the two degrees of murder, because there is a class of cases in which the intent to kill need not exist. Therefore, because it assumed to be what it was not, we refrained, out of abundant caution, from saying unqualifiedly that it did not misstate the law, contenting ourselves with saying that it did not misstate the law of this particular case.

We said again, at the very close of the opinion, speaking of number two: “It is susceptible of a construction according to which it would be erroneous, and but for the clear and definite instruction on the subject of voluntary manslaughter, by which it was accompanied and qualified in this case, it must have been so construed.” We thought this expression was sufficiently guarded, but, perhaps, it was not. We did not mean that, if this instruction had stood alone and unqualified, the jury must have understood it in an erroneous sense; but merely this, that, as they might have so understood it, tue must have so construed it in .order to protect the defendant from a possible injury. It will be seen that this meaning is entirely consistent with the whole of the opinion, and that any other meaning is inconsistent with it. We thought it proper to express our disapproval of these instructions as models to be followed hereafter, but we stated explicitly our reasons for such disapproval. The instructions are not full, and they are not clear. Because they assume to state broadly the distinction between the two degrees of murder, and fail to do so, they are inaccurate; because, standing by themselves, they might be understood to mean that the bare intent to take life makes a homicide murder, they are not clear. These were the grounds, expressly stated, of our disapproval of them, and neither of these grounds avails in this case. There was no question here of a homicide committed in the perpetration or attempt to perpetrate a felony; and that sense of the instructions in which they would have been erroneous was excluded by the clear and unequivocal meaning of another instruction.

Trusting that we have made the meaning of our former opinion clear, we will now proceed to consider the objections of appellant to what we did decide. He contends that there is no language in instruction number two which implies deliberation, and nothing in the instruction asked by himself that excludes the notion that a bare intent to kill makes a killing murder.

It is agreed upon all sides that an intent to kill exists in all cases of voluntary manslaughter, but in such cases the killing is intentional only in the sense of not accidental; it is voluntary, not the result of inadvertence. In voluntary manslaughter there must be no mixture of deliberation. The passion must be such as to exclude the power of reflection. The language of the instruction is: “A design, a determination, to kill, distinctly formed in the mind.” We think these words do, in their natural sense, imply deliberation. Certainly they mean a great deal more than the simple impulse to slay which characterizes manslaughter. The word “determination ” in this instruction is not used in any technieal sense; in fact, it has no technical sense in which it means less than it does in its popular signification. Webster defines it to be a “decision of a question in the mind; firm resolution; settled purpose.” Can it be said that a question can be decided, a wavering resolution made firm, or a hesitating purpose settled without'deliberation ?

The chief justice, in his dissenting opinion, has brought forward Bouvier’s definition of the word “intention” to prove that it means as much as “ determination,” and therefore that “determination to kill distinctly formed in the mind,” means no more than the impulse to slay which exists in manslaughter. We think there is a fallacy in this argument. Bouvier gives to the word “ intention” its broadest technical meaning — that Avhich is common to it as used not only in reference to criminal acts, but also in speaking of the intention of a testator; of the parties to a contract; of the legislature. In all these cases the word implies the maturest deliberation, and it is the full equivalent of ‘ ‘ determination.” In reference to criminal acts, also, it is the exception, and not the rule, for intention to mean anything less than a deliberate purpose.' Out of the long list of crimes there are but two or three in which the intention to do the forbidden act can arise from a mere impulse of passion. To prove, then, that intention usually means as much as determination, does not prove that the latter ever means less than it is defined to mean, viz: The decision of a question in the mind; a firm resolution; a settled purpose. We remain of the opinion that the language of the instruction, strictly construed, does imply deliberation.

But we have conceded that it might have been misunder. stood if it had not been for the instruction given at defendant’s request, and counsel argue that that instruction could not have been taken to qualify the other in any way, because it related to another matter. One was on the subject of murder, they say, and the other on the subject of manslaughter. In answer to this objection we say murder and manslaughter are degrees of the same offense. If an instruction can be framed to define the one without in some measure defining the other, this case, at all events, does not illustrate the possibility. An instruction which tells a jury that “killing upon sudden heat of passion,” etc., is manslaughter, and not murder, may be fairly said to be on the subject of murder.

But counsel still contend that if this instruction is read in connection with the other, there is nothing in it to exclude the notion that a bare intent to kill makes the killing murder in all cases, even though it be a mere impulse of uncontrollable passion caused by an adequate provocation. It certainly does, exclude any such notion unless it can be maintained that this jury, in the face of the uncontradicted testimony of all the witnesses, including the defendant, might have understood the court to mean that if the defendant accidentally or inadvertently killed the deceased while laboring under the influence of uncontrollable passion, then onfy was the killing manslaughter and not murder. But to adopt this view would, it seems to us, be equivalent to denying the jury any share of common sense. When people talk of a killing being done under the influence of sudden passion, they are never understood to be talking about an accidental or involuntary killing, and if it could be supposed that any jury ever would understand such language in such a sense, this jury at least could not have done so. The instructions must have been understood as having some reference to the testimony in the case, and there was no question here of an accidental killing. The killing was admitted, and the defendant swore that he armed himself for the very purpose of doing it.

Finally, it may be said that it is certain that this jury could not have understood the instructions complained of to mean that a bare intent to kill, without premeditation or deliberation, makes an unlawful killing murder. If they had so understood, they would have been compelled to find a verdict of murder in the first degree. The theory of counsel is, that the jurors in this case were impelled, by hatred of Chinamen and fear of the newspapers, to deal severely with the defendant, and that they understood the court to instruct them, that if the defendant killed Ah Long intentionally he was guilty not of simple murder, but of murder in the first degree. The fact that the killing was intentional was rendered certain by the testimony of the defendant himself. It follows that the duty and the inclination of the jurors concurred in demanding a verdict of murder in the first degree. But they found murder in the second degree. What sort of a theory is it which supposes that jurors will violate their sworn duty in order to go counter to their wishes and their fears ?

The judgment is affirmed.

Hawley, O. J.,

dissenting:

I adhere to the views expressed in my dissenting opinion, and, for the reasons therein stated, I think the judgment ought to be reversed.  