
    Thomas Jordan v. The State.
    13ee this case for a lengthy charge upon the distinction between murder in the first and murder in the second degree under our statute, which was held to be .substantially correct.
    Although it is not necessary to prove by other evidence than is furnished by the act itself the existence of a preconceived intention without cause to take life, or premeditation and deliberation preceding the act, yet these ingredients must have existed in fact to constitute murder in the first degree, except whore the killing takes place in an attempt to commit arson, rape, robbery, or burglary; they need not be expressly proved as distinct and independent facts, but their existence maybe inferred from the nature of the act itself whenever such act, unexplained, shows deliberation.
    Where death is the natural consequence of the act done, as where one shoots another, such act, unexplained, is evidence of itself of the preconceived intention and deliberation necessary to constitute murder in tne first degree.
    In order to constitute murder in the first degree there must be a premeditated and deliberate design to kill, except where the killing takes jfiace in an attempt to perpetrate arson, rape, robbery, or burglary; but, excluding the irieaof provocation and passion, which do not admit of deliberation, the existence of the preconceived intention for one period of time, however short, is as deliberate as if it had existed for auy different period, however long.
    Where the judge in his charge, to the jury, after defining the distinction betwcou murder in the first degree and murder iu the second degree, proceeded to charge them upon the distinction between murder and manslaughter, and the jury found the defendant guilty of murder in the first degree, the Supremo Court, being of opinion that the evidence sustained the verdict, treated the charge upon the distinction between murder and manslaughter as irrelevant, and therefore immaterial, whether correct or not.
    In order to admit proof that a witness has made statements out of court contrary to what he has testified on the trial, it is necessary first to ask him as to the time, place, and person, when, where, and to whom flio contradictory statements were made, and whether or not he has made the statements proposed to be proved.
    Where the defendant found guilty of murder in the first degree moved for a new trial on the ground that he was taken by surprise by the testimony of two witnesses for the prosecution, and, in support of the application, filed the affidavit of one Walton, containing a statement contradictory of the testimony of the two witnesses of the prosecution, which one of the witnesses, he could not tell which, made in his bearing and his own affidavit, stating the surprise, and that he was informed that one Stripling, who resided sixteen miles distant, could, upon another trial, identify the witness who made the statement to Walton, the Supremo Court refused to reverse the judgment of the court below which overruled the motion.
    See this ease for remarks respecting the practice of the Supreme Court in revising the refusal of the court below to grant a new trial. (Note 87.)
    Appeal from Wood. Conviction of murder in the first degree. The facts are not important, not being- discussed either in the briefs of counsel or in the opinion of the court. The charge of the court below, so far as it was mate,rial, will be found in the opinion of the court. That portion of the charge which is characterized as irrelevant and immaterial by the opinion related to the distinction between murder and manslaughter.
    
      F. W. Bowdon, for appellant.
    I. The charge of the court is confused, apparently if not really conflicting', and tended necessarily to mislead the jury. Most of the language may be found in the law books, but not in tiie same connection, nor argued with the same intent and palpable effect.
    Murder in the first degree may be viewed in two aspects. 1st, when the homicide is committed without provocation, manifesting a depraved and wicked heart bent on mischief generally; or, 2d, when the slayer harbors a fixed, ■cool, and malicious purpose against a particular individual. Both are, cases of real or actual malice, as contradistinguished from what may be termed constructive malice — not implied malice, ‘for implied not less tlnin express malice may be actual malice, the latter being absolutely necessary to constitute murder in the first degree under the statute.
    Murder in the second degree occurs when a pavty takes life wilfully and maliciously, in a common-law sense, on sudden heat of passion arising from provocation, but when the provocation does not make a case of homicide strictly iu self-defense. This is the class of cases which the statute lias specially intended to embrace. To restrict its application merely to cases where •the blow is mortal and malicious, but not intended to kill, would deprive It of the beneficial operation designed by the legislature, as it would be confined ■to cases not heretofore complained of, and not reaching and remedying a manifest defect iu the common law.
    The charge neither discriminates clearly or properly. It gives too much stress to mere intention and too little to deliberation, or the character of the intent denounced, not discriminating between a sudden intent and an intent arising from previous malice and cool purpose of sudden manifestation. It speaks, it is true, of premeditation and deliberation as essential to constitute the crime of murder iu the first degree,- but nullifies its effect by authorizing and requiring the jury to infer premeditation and deliberation from the specific intent to kill, thus confounding guilt itself with the evidence of guilt. The specific intent to kill is only one of the elements of murder in the first degree, and may exist and frequently does in the absence of the others.
    In a case of deliberation and cool purpose, inferrable from a total absence of provocation, length of time may be immaterial as to the immediate purpose of •execution ; but when the killing is on sudden heat, arising from provocation, then “length of time” becomes a most important and controlling question. In the latter case “ the design to take life, if it be only the conception of a moment, “is” [not] “as deliberate as if it wore the plan of years,” either in judicial examination or in general potence. Though in the former ease it may well be so in judicial language and cognizance. "Such is evidently Wharton’s view from the text and the eases referred to in the margin. But from the arrangement of sentences in the charge a jury would make no distinction between the two classes of offenses or homicides above mentioned; but suppose that iu any case a moment in judicial examination is equivalent to days, mouths, or even years. The “specific intent to kill” is placed in bold relief, whilst deliberation or deliberate malice is kept iu the back gronnd and treated as a necessary, not a potential, incident to the “specific intent” to take life.
    The charge is more strikingly erroneous iu the very emphatic instruction that “words of reproof or threats of persoual violence, however grievous, “ nor indecent, provoking actions, or gestures expressive of contempt or reproach, “without an assault upon rlie person, arc not sufficient to reduce the killing to “ die crime of manslaughter; but it is murder; ” — meaning, evidently, from what preceded, murder in the first degree; — “ that die party should have retreated; ” “that a delusion on his part that he was in danger from the deceased, whether “the offspring of fancy, fear, or hatred, made no difference, unless the attack “was real, extreme, and urgent.”
    Such may be the stern letter of the common law which looked alone to man’s corporeal safety, but it breadles not'the wiser and more humane spirit of the statute, which regards man spiritually as well as bodily, and graduates punishment accordingly; which knows that pecuniary compensation is no balm for some wounds which oven the tongue may inflict. The. law of vengeance having failed for centuries to change the fundamental nature of man, has given place to the better policy of prevention and reform.
    Iu support of the above views reference is made to the following authorities: Wharton’s Or. L., 291, 222, 2G8, 2S3, 2S0, 287; Mitchell v. The State, 5 Ycrg. II., 340; Anthony v. The State, 1 Meigs, 265, 268, 277. The cases from Yerger and Meigs are good illustrations of the distinctions above drawn. (See also Grainger v. The State, 7 Am. Com. Law 11., 99; Id., 94, citing cases from Virginia and Penn.; Id., 95; Allen v. The State, cited from 5 Yerg., 453.)
    The eases cited by the counsel for the State do not conflict with the foregoing, as in each case referred to in their brief there appeared to have existed real, settled malice against a particular individual, or a general depravity and recklessness, proven by direct testimony, or necessarily implied from the unprovoked manner of the killing.
    II. The testimony of Walton should have been admitted. The argument of •the counsel for the State invests the rule as to impeaching a witness, by proving his contradictory statements. The person to be identified is not. the witness, on the stand whose testimony is sought to be attacked, but the person by whom the impeachment is to be made. Walton was that person and was present, identified and confronting botli the Davis boys, whose identity could not have been mistaken, as they were both present when one of them, with the tacit approval of the other, made a full statement to Walton of the facts of the light of the prisoner. They botli swore to precisely the same things; and Walton,"by contradicting botli of them, must necessarily have contradicted the right one, and one if not both, would thus have been properly discredited in strict accordance with tlic spirit of the rule in such case. (Groenl. Ev., 514, sec. 4G2 and note.).
    III. It is believed that a stronger or a better showing for a new trial was never made. The conviction is wholly at war with tlic testimony offered by the prisoner, and, as is believed, erroneously ruled out. That testimony is reasonable. The testimony for the State is of a most extraordinary character, at war with every man’s experience, and wholly incredible.
    A new trial is not sought merely to impeach the character of a witness in the-ordinary way, which, if the witness be of bad character, can always bo done at tlie first trial. But the object is to impeach in the unusual way by contradictory statements known to but few, whereas a man’s general character is always known to many.
    On this subject there is no inflexible rule, especially in criminal cases where-it is evident that the prisoner lias not had a fair and full trial, and where his whole testimony is ruled out under circumstances not to be reasonably anticipated, thus making a case of real as well as legal surprise. (2 Yol. Dirt. Dig., 105, see. 2; 11G, sec. 90; 119, sec. 115; 121, sec. 126; 7 Com. Law R., 112, 113, 120, 134, 135.)
    
      W. B. Ochiltree, also for appellant.
    
      Attorney General, for appellee.
    
      W. H. Parsons, also for appellee.
    In the second assignment of errors it is alleged that “the court erred in his charge to the jury defining ‘•the degrees of murder.”
    The particular exceptions in this assignment go to that portion of the charge where the distinction is drawn between murder in the first and murder in the second degree under the statute. (Art. 501, Hart. Dig.)
    The statute was based, was framed and designed — as were the almost entirely similar statutes of Alabama, Tennessee, Virginia, Pennsylvania, Newllampshire and several other States — to mitigate the rigor of the common-law rule, where several offenses included under the general denomination of murder, but differing greatly in degree of atrocity, were involved in the same punishment.
    The striking uniformity and unanimity with which the distinction between the different grades of homicide has been introduced into the penal codes of the several States is a marked evidence of legal advancement, alike creditable to those who framed and those who have given them their true legal exposition and strict judicial interpretation. If the phraseology adopted in defining the degrees were calculated to mislead, still we have the copious adjudications of the tribunals of sister States governed by similar penal statutes, which will serve to aid us in the establishment of a'principle that is more vital to the peace, the life and liberty of the citizens of this country .than any legal question upon which our supreme tribunal ever has been,'or ever may be, called upon to decide.
    In Pennsylvania the statute in regard to capital offences reads as follows r “all murder which shall be perpetrated by means of poison, by lying in wait, “ or by any other kind of wilful, deliberate, and premeditated killing, &e., “ shall be deemed murder in the first degree; and all other kinds of murder “in the second degree.”
    
      In Virginia, “all murder which shall he-perpetrated by means oí poison, in wait, &c., or by any other kind of willful, deliberate, and premedi-“rated killing, &c., shall henceforth [H-§5] be deemed murder in the first “ degree, and all other kinds shall be deemed murder in the second degree.”
    In Tennessee, “all murder which shall be perpetrated by means of poison, “lying in wait, or bjr any other kind of willful, deliberate, malicious, and pre“meditated killing-, &c., shall be deemed murder in the first degree, and all “other kinds shall be deemed murder in the second degree.” (See compilation of said statutes in Wharton’s Criminal Yaw, p.274.) Tlie remarkable similarity to the language of our statute (Ilart. Dig-., Art. SOI) leads to the irresistable conclusion that its framers moulded the phraseology upon the statutes of the States just cited; and as our legislators had evidently the same object and intention to establish the different grades of homicide into murder in the first and murder in the second degree, the construction given to those acts by the tribunals of (lie respective States where they have been adopted will undoubtedly have their just weight in tlie filial determination of this cause.
    Murder in the first degree in our statute and in those above cited is divisable into two parts: first, iiito certain enumerated instances where tlie simple use of tlie means specified is prima facie of guilt, “poison, starving, torture;” and, secondly, a general definition, “as other premeditated and deliberate killing.” Tlie proposition is a clear one, that all cases falling within the enumerated instances or the general definition are murder in tlie first degree, and all eases which do not are murder in tlie second degree.
    Tlie counsel for tlie appellant has ingeniously and with some faint show of plausibility attempted to urge the argument that the words of tlie statute “other premeditated and deliberate killing ” refer to their antecedents “poison, “starving, torture,” to show that it is only in cases where as in those instances loug premeditation is requisite to consummate the purpose, and tlie crime is effected under circumstances evincing deep moral turptitude and a revolting degree of atrocity, that in those cases only can it be denominated murder in the first degree.
    In the ease of Com. v. Jones, 1 Leigh B., (610, 611, 612,) quoted in "Wharton’s C. L., p. 723, this question ivas fully argued by counsel and tlie opinion delivered by one wlio is now an incumbent upon tlie Supreme Bench of the United States. The counsel for Jones took the same ground as the appellants in the present case and argued that the words “any other kind of willful, deliberate, or premeditated killing” ought to be construed as referring to the character or kind of killing specified in‘the previous enumeration. The court, in delivering its opinion, said “that a plain, invincible answer to this argument “is the import of the term used — other and such. Other killing means any “other killing whatever, which is different from tlie same; such killing would “refer to tlie modes of killing enumerated.” “To admit this construction,” continued the learned judge, “would be to allow that the legislature meant “nothing or did not understand what it meant when it used upon this very important subject of life and death those words of plain and obvious import, any “other kind of willful and premeditated killing.”
    The just distinction recognized between the enumerated instances and the general definition is this : in tlie enumerated cases the legislature lias declared that the offender shall he guilty of murder in the first degree, without further proof that tlie death of the victim was the object sought. Tlie malice is presumed from the terrible nature of the meaus resorted to; but to bring the offense in other cases under tlie general definition it is indispeusible to produce proof to show that the killing was the deliberate intention of the party accused.
    The design or intention of the party accused is tlio criterion laid down by all the authorities, without exception, to determine the grade of tlie offense; and herein lies the distinction between tlie common-law principle and that adopted in this country under the benign spirit of reform prevalent throughout tlie land. At common law, if the mortal blow is malicious and death ensues, the perpetrator is guilty of murder, whether the intention does or does not exist.^ But the repeated adjudications in.all the courts controlled by similar [487] statutes to our own have determined that where there is a specific intention to take life it is murder in the first degree; but where the design is to hurt without any intention to take life, whore the object is simply to chastise without inflicting death, it is murder in the second degree. (Pennsylvania v. Lewis, Adds, R., 2S8; 4 Pennsylvania Law Journal', 100, 107; Commonwealth v.. Varney, 1 Ashin. li., 289.)
    The distinction between the common-law interpretation and that under the statute is clearly aud forcibly defined in Mitchell v. The State, 5 Yerg. R., 340. The above cases cited at length in Wharton, p. 219-91, and Russell on Crimes, pp. 481, 4S2.
    Whilst tlie intention is a distinguishing feature between murder in the first and second degree, nothing forms more conclusive evidence of the bloody intent than the instrument used in killing.
    “Malice will be presumed, oven though the act he perpetrated recently after “the provocation received, if the instrument or manner of retaliation he greatly “inadequate to the offense given, and cruel and dangerous in its character; for ■“the law supposes that a party capable of acting in so outrageous a manner ■“upon a slight provocation must have entertained a general if not a particular malice, and have previously determined to inflict such vegeauce upon any “pretence that offered.”
    The intention being the essence of the crime, that intention can only he gathered from ins words and actions. If a man without uttering a word should strike another on the head with an axe, it must on every principle by which we can judge of human action be deemed a premeditated violence. (Resp. v. Mulatto Bob, 4 Dallas, 145, cited at length in Wharton, 280.) The above case was the first that underwent a careful'examination by Oh. J. McKean under the Pennsylvania Act, similar to our own. It was there urged by counsel for the prisoner that under the amendment to the penal code of that State premeditation was an indispensable ingredient to constitute in the first degree. “But still,” said the learned chief justice, “it must he allowed “that the intention remains as much as ever the true criterion of crimes in law “as well as ethics.”
    The degree of premeditation, or the time essential to render the intention -deliberate, is as well settled as any other principle of criminal jurisprudence. By the general concurrence of judicial sentiment in several States where the distinction between murder in the first and second degree has been a subject of examination, it lias been held that the statute requiring murder in the first degree to be deliberate did not change the common-law doctrine in that respect with regard to murder, the degree of deliberation being the same. (Wharton Crim. L., 277.) Whenever it appears that the intention was to take life, and it appears from the whole evidence that the crime was at the moment deliberately and intentionally executed, it is murder in the first degree. It is sufficient to constitute the crime if the circumstances of a wicked and depraved disposition of willfulness and deliberation are proved, though they arose and were generated at the period of the transaction. (Com. v. Dougherty, 1 Brown App., 18 Penn. R.)
    It was held in the case of Com. v. Richard Smith, quoted in Wharton’s Crim. Law, p. 289, “ that premeditation in the ej^e of the law has no defined limits, and “if a design he but the conception of a moment it is as deliberate, so far as judicial examination is concerned, as if it were filie plan of years. If the party “killing had time to think, and did intend to kill for a minute, as well as an “hour, or a day, it is a willful and premeditated killing constituting murder in “the first degree.”
    In Virginia (Wiiiteford’s case, 6 Rand., 721) the same doctrine was held, “ that to constitute murder in the first degree it is not necessary that the premeditated design to kill should have existed for any particular length of time.”
    In an early ease in Tennessee it was held that a previous intention to take life .must he positively shown, (Mitchell v. State, 5 Yerger, 340,) but it has since hocn frequently overruled in that State. (See State v. Anderson, 2 Tenn. R., G ; Dale v. State, 10 Yerger; Anthony v. State, Meigs, 270.) In the case of Com. v. Haley, 4 Penn. Law Journal, quoted in Wharton’s Crim. Law, p. 200, it was held “ that, every intentional act is of course a wilful one, and pre- “ meditation and deliberation simply mean that the act was done with rellec“tion. No specific length of time is required for such deliberation. It would “be a most difficult task for human wit to furnish any safe standard in this “particular. The law, reason, and common sense unite in declaring that an “apparently instantaneous act maybe accompanied with such circumstances “as to leave no doubt of its being the result of premeditation.”
    The degree of malice necessary to constitute murder is implied by law from any cruel, deliberate, act, however sudden its commission. Malice, in its legal sense, does not denoto a long existing rancor lodged in the mind of the person Mlling for some time before the commission of the act; it denotes a wrongful act done intentionally, without cause. (McPherson v. Daniels, 21 Eng. Com. Law R., 73; Rex v. llarvey, 9 Eng. Com. Law R., 82.)
    In Whileford v. Commonwealth, (6 Rand. R., 723, cited at length in 7 American Common Law, p. 74,) Justice Brockenbrough covered all the points in the present ease in the following remarkably concise, pointed, and comprehensive language: “There cannot be any doubt that at common law, if a man “kills another with a previously formed design to kill, that it is murder, al- “ though t.lie design may have been formed only a moment before the fatal act “is committed. And if there be no provocation whatever given at the time of “the act, or if the provocation bo very slight and the act be committed with “such a weapon as is calculated to produce death, or if there have been a pro- “ vocation so long before the act as that the blood has bad time to cool and the “ mind to reflect, and the deadly purpose is then effected, it is murder.”
    The statement of facts in this case discloses every ingredient required by law to sustain the verdict of murder in the first degree. The only provoking words used by Zigler, the deceased, was “Say wliat you please, Davis.” The accused grasped his rifle, presented it at the deceased, peremptorily ordering him to drop liis hoe. The order was complied with. Not satisfied with this, the accused, with his deadly weapon still presented, ordered the deceased to stand back from his hoe. The violent threat was then pronounced by the accused, manifesting a deliberate and express intention, “ Open your mouth “again and I will blow hell through yon.” The witnesses all concur in testifying that a pause, an awful pause, ensued of at least one minute, ample time for tlie most obdurate heart to relent from its fiendish purpose. It was then that the deceased asserted the right of a free-born citizen, and declared, with death staring him in the face, that “ lie thought lie had a right to speak on his “ own premises.” Ratal words '. no sooner spoken than the sharp ring of the rifle tolil that the work of death had terminated, and Zigler lay in his own field a bloody corpse.
    In the fourth assignment of error it is alleged that “the court erred in excluding the testimony of Walton.”
    There is no one principle so clearly laid down by all works upon evidence and none more thoroughly fortified by sound reason than that which requires that the witness by whom a contradictory statement is attempted to be proved shall state “ the time, place, and person involved in the supposed contradic-ción.” (1 Greenl. Ev., see. 460; 1 Starkie Ey„ 213.) Walton was introduced to prove that one of the witnesses in behalf of ■ the prosecution liad made a contradictory statement; but, when asked who among the several witnesses had made the alleged contradictory statement, lie was wholly unable to identify the person of said witness, and his testimony was therefore excluded.
    The fifth assignment of error alleges that “the court erred in refusing to “grant a new trial on the ground of surprise to the prisoner, by the testimony ‘ ‘ of the boys Davises. ’ ’
    
      In the case of Holmes v. McKinney, (4 Monr. R., 5,) and Hunt v. Owings, (Id., 22,) it ivas held that “the sort of surprise for which it would he proper “ to grant a new trial must depend so much upon the circumstances of each “particular ease that any attempt to lay down a rule of general application “would be entirely vain and useless.”
    The applicant for new trial cannot sustain the allegation of surprise on the grounds of the evidence of the Davis boys, and that he had no reason to suppose they would he offered, for the party was put on inquiry, and went to trial fully prepared, as lie deemed, with rebutting testimony to meet the issue offered by the testimony of said boys.
    The sixth assignment, charging error “in refusing to grant a new trial upon “oath made of the newly-discovered evidence of William Stripling,” is subject to the well-established principle that “a new trial will not be granted upon “ the discovery of new witnesses to prove a fact in the knowledge of the party “and in issue oil the former trial.” (I-Iimt v. Boyier, 1 J. J. Marsh. R., 487.) In the ease of Findley v. Nancey, (3 lion. It., 402.) the same principle was discussed more at length. It was there held that “ where the fact upon which “issue is to turn was known to the party, and the adversary witness was “known, and evidence was adduced, both as to the principle question and “against the credit of the witness, an application for a new trial upon the dis- “ covery of new evidence that consists in swearing witnesses only, will be “rejected.”
    It is a well-settled principle, sustained by the entire range of authorities, that “ where the newly-discovered testimony goes only to impeach the credit “of one of the other parties’ witnesses, a new trial ought not to be granted.” (Barrett v. Belshe, 4 Bibb.; 3 Johns. R., 250; 4 Johns. R., 425; 5 Johns. R., 248; Seeley v. Chittenden, 5 Wend. R., 114; 10 Wend. R., 285.)
   Wheeler, J.

Two grounds are relied on for reversing the judgmont. The first has reference to the charge of the court in defining the constituents of murder in the first degree; the second is the refusal of the court to grant a new trial.

After quoting the statutory definition of murder, the court proceeded to define and explain the necessary constituents of the crime at common law, and of the degrees of murder created by the statute, as follows:

“1st. The killing must be unlawful, without warrant, excuse, or provocation.

“2d. The killing must have been with malice aforethought. Malice, as essential to the crime of murder, is used in a legal sense as contradistinguished “from its popular signification. In this offense malice need not denote spite “or malevolence, hatred,or ill-will to the person killed; nor that the person “killing did kill another in cold blood, as with a settled design and premeditation. Sucli a killing would, it is true, he murder. But malice, as essential “to the crime of murder, has a more extended meaning. A killing-, flowing “from any evil design in general, may be of malice, and constitute murder; as “a killing resulting from the dictates of a wicked, depraved, and malignant “spirit; a heart regardless of social duty and fatally bent upon mischief may “he-of malice, necessarily implied by law from the fact of killing without law“ful excuse, and sufficient to constitute the crime of murder, although the “person killing may have bad no spite or ill-will towards the deceased. Malice “as thus described is either express or implied. Express malice is where one “ with a sedate and deliberate mind and formed design kills another, which “formed design is evidenced by external circumstances discovering that in“ward intention, as where a person kills another by starving, torture, or “hv any other premeditated and deliberate killing, as by lying in wait, ante- “ cedent menaces, former grudges, and concerted schemes to do bodily harm; “or any other circumstances showing such deliberation and formed design “ to kill would be equally available to show express malice, as the examples “ above given. The intention of the person killing is the gist of the offense, in “ case of killing upon express malice, which intention, unless the killing is by “starving or torture, is a question of fact for the jury, and is to be gathered ■“from all the circumstances attending the transaction.

“Implied malice is malice presumed by law from the commission of any “ deliberate and cruel act, however sudden, done or committed without any “ just cause, or excuse, as when the act has been committed under such circumstances as are the ordinary symptoms of a wicked, depraved, and malignant “spirit, of a heart regardless of social duty and fatally bent on mischief, as 41 above mentioned. If an act has been accompanied by such circumstances “the law presumes malice, and it is not necessary that the jury find the malice “as a substantial fact.

“Asa general rule the law presumes malice from the very fact of killing, and “ all the circumstances of necessity, accident, or infirmity which justify, ex- “ cuse, or extenuate the act are to be proved by the prisoner, unless they arise “ out of the evidence against him. .

“Here we might rest the definition of murder had not our legislature introduced an important distinction to be understood by the jury in the formation “of your verdict, provided you shall find the prisoner guilty of murder. This 41 distinction is with regard to the degree of guilt of which a party maybe conducted and the corresponding punishment to be inflicted. The statute reads “ as follows: ‘ That all murder committed by poison, starving, torture, or other “ ‘ premeditated and deliberate killing,’ &e., ‘ is murder in the first degree, and “ ‘all murder not of the first degree is of the second degree.’

“ If a murder be committed by poison, starving, or torture, it is murder in the 41 first degree, without further proof of malice, or that the death of the party was “the object sought by the will, deliberation, and premeditation of the party “killing. But the words ‘other premeditated and deliberate killing’ need “ some explanation.

“ A killing showing such premeditation and deliberation is equally ■“murder in the first degree,'but proof is necessary to show that such killing “ was the ultimate result which the will, deliberation, and premeditation of the “party accused sought.

“ The intention of the accused determines the degree of the offense. If the “homicide is premeditated, if there is a specific intention to take life, and life “is actually taken, it is murder in the first degree; if there is not a specific “ intention to take life, it is murder in the second degree.

“If a mortal blow is malicious and death ensue the perpetrator is guilty of “murder, whether it be intended to kill or not — he is responsible for the effects “ of such wilful and malicious blow although he did not intend to kill — but in “ such case he is only guilty of murder in the second degree. But if such blow 41 be intended to kill he is guilty of murder in the first degree.

“It is not, however, absolutely necessary to couvict of murder in the first “ degree to show a previous intention and premeditation to take life uncon“nected with or preparatory to the commission of the act producing death. “Such premeditation and intention may be gathered from the nature of the “act itself whenever such act, unexplained, shows deliberation, as where a man ‘‘without any cause deliberately shoots another, or by any other act producing 41 death without cause.

“If the design to take life be but the conception of a moment it is as deliberate, so far as judicial examination is concerned, as if it were the plan of “years, or if the party killing had time to think, and did intend to kill, for a “ minute as well as an hour or day, it is a deliberate, wilful, and premeditated “killing, constituting murder.in the first degree.”

It is objected to this charge that it excludes from the definition of murder in ¡the first degree the ingredient of deliberation, or that, at least, it makes the degree of guilt in too great a measure dependent on the intention with which the act causing death was committed rather than the premeditation which preceded its commission, attaching too much consequence, it is said, to tlie intention and too little to the deliberation necessary to constitute murder in the first degree. And to support tlie objection especial reference is made to that part of the charge which defines what are tlie constituents of murder in the first degree. It is to lie observed, however, that it is there expressly stated that to constitute murder in tlie first degree in other than the cases instanced in the statute “proof is necessary to show that such-killing was the ultimate “ result which the will, deliberation, and premeditation of'the party accused “sought.” Tims the ingredients of murder in the first degree are made necessarily to consist of a wilful, premeditated, and deliberate killing. Tlie language employed imports that there must have been a preconceived intention and deliberate purpose which “sought” the deatli of the party slain. Again it is said : “The intention of tlie accused determines tins degree of the “offense. If,the homicide is premeditated, if there is a specific intention to “take life, and life is actually taken, it is murder in tlie first degree; if there “ is not a specific intention to take life, it is murder in tlie second degree. If a “ mortal blow is malicious and deatli ensues the perpetrator is guilty of murder, “whether it he intended to kill or not — lie is responsible for the effects of such “ wilful and malicious blow although ho did not intend to kill — but in such case “he is only guilty of murder in the second degree. But if by such blow he “intended to kill he would be guilty of murder in tlie first degree.”

What the court intended in this branch of the charge evidently was to point out the distinction between a wilful and malicious killing, or, as it had been before expressed in giving filio meaning of express malice, a killing “with a “sedate and deliberate mind, and formed design,” a premeditated and deliberate killing,” that is, a killing upon express malice, as necessary to constitute murder in tlie first degree, and a malicious killing hi which the intention of the party was not to take life, but to inflict some less injury, or wliieli was <perpetrated in tlie commission of some wilful, deliberate, and unlawful act, evincing a wicked, depraved, and malignant spirit, but not with the intention to take the life of the .party slain, that is, a killing from which the law will imply malice, which would be murder iu tlie second degree. It was to draw the distinction between those cases where the mortal blow was given with the preconceived, deliberate intention to take life and where there was not such specific intention in tlie mind of the party when lie perpetrated tlie deed, and particularly to distinguish the degree of guilt between a wilful, premeditated and deliberate act which was intended to cause death and one which was not.

That this is the plain meaning of this branch of the charge is evident as well from what preceded as from what follows in immediate connection with the extract last given, where it is added: “It is not, however, absolutely neces- “ sary to convict of murder in tlie first degree to show a previous intention and “premeditation to take life unconnected with or preparatory to the commission of tlie act producing deatli. Such premeditation and intention may be “ gathered from the nature of the act itself whenever snch act, unexplained, “ shows deliberation, as where a man without any cause deliberately and coolly “shoots another.”

Here the idea is distinctly brought to view that, though it Is not absolutely necessary to show, that is, 'for the prosecution to prove by other evidence than is furnished by the act itself, the existence of a preconceived intention without cause to take life, or premeditation and deliberation preceding tlie act; yet, that these ingredients must have existed in fact to constitute murder in the first degree. They need not he expressly proved as distinct and independent facts, but their existence “may he gathered (that is, inferred) from tlie nature “of the act itself whenever such act, unexplained, shows deliberation.”

It is implied as plainly as if again expressed that premeditation and deliberation are necessary constituents of murder in the first degree.

Particular attention was directed to tlie “specific intention” with which the mortal blow was given in order to convey the idea that it must have been to-lcill, and not merely to inflict chastisement or other injury less than death. The preconceived intention must have been specifically to take life; the death of the party slain, and not another, and not merely a beating, wounding, or other injury short of the death of the party must have been specially iutended. It is this specific intention, actuating the party at the moment of perpetrating the-deed, and not the time or manner of its manifestation, which characterizes the degree of guilt. If such was the intention, it is not essential at what time or in what manner it was made manifest; whether by antecedent words or acts, or only in the very act which occasioned the death.

But the idea is kept plainly in view that the homicide must have been “premeditated ” and “without any cause; ” that is, any sufficient provocation, legal excuse, or extenuation; “coolly,” that is, deliberately, “as (the instance given), “where a man without any cause deliberately and coolly shoots another.” There must have existed the pre-conccived intention and cool (deliberate) purpose. It may be shown, however, by proof of antecedent words or acts evincing sueli intention; or it may be inferred from tlie nature of tlie act itseif, where it is perpetrated in cold blood and under such circumstances as to show that nothing short of taking the life of tlie party assailed could have been intended; as in the instance given whore a man under the circumstances stated shoots-another. Such an act unexplained would he evidence of itself of the pre-con-ceived intention and deliberation necessary to constitute murder in tlie first degree'. It would be deemed a premeditated and deliberate killing, though-there was no other evidence of the intention, which thus first manifested itself, or of deliberation; for in such a case it is only from tlie act that wo can judge of the intention, and from tlie absence of apparent provocation we must infer delibera! ion. Upon every principle by which we judge of human actions,, we must conclude that the party thus killing was aware of the certain consequence of his act, and that it was tlie result of a preconceived, deliberate purpose.

While seeking to impress the idea of the inteution necessary to constitute this degree of crime, the court, as well might be, assumed that the necessity of premeditation and deliberation, before so fulljr expressed in giving the definition of express malice and the degrees of murder, was understood by tlie jury; and so'iu treating successively of each ingredient in the crime. One sentence or paragraph was not sufficient to convey all tlie, information desired, ancl hence the several ingredients necessary to complete the definition wore severally treat eel in tlie charge. It would lie contrary to every principle of just reasoning, as well as of judicial interpretation, to judge of the meaning of the court by selecting and disconnecting from tlie charge'particular sentences and considering them without reference to the context. Such, certainly, would not be tin''natural method of arriving at the meaning of the court, and we cannot suppose ic was adopted by the. jury in this casó. The idea is more than once expressed with perfect distinctness, and it is kept plainly in view throughout that there must lie a premeditated and deliberate killing to constitute murder ill tilt' first degree. These constituents of the crime were not repeated in express terms in every Sentence or paragraph, nor was this, if even practicable, necessary to its being understood.

Upon an attentive consideration of the charge it is not perceived that there is any cause to apprehend that tlie jury did not understand its meaning, or that they were misled by its reference to tlie specific intention as a necessary constituent on the definition of the crime. Hor is tlie charge, it is conceived,, obnoxious to the objection that it excludes from the definition, or attaches too-little consequence to deliberation as necessary to constitute murder in the first degree.

Is there error in the charge in respect to the lapse of time for premeditation and deliberation whieli must intervene between the conception of the deadly purpose and its execution? And to this inquiry it must be answered ‘that no certain space or period of time could be assigned for such purpose as matter of law, for the law fixes none. Every case must be judged of by its own circumstances. As lias- been said by a learned judge whose opinion lias been referred to in argument, “It would be a most difficult task for human 41 wit to furnish any safe standard in this particular.” (Wharton’s Am. C. L., 200.) The law has not and in the nature of the case it cannot fix any safe tiud certain criterion by which, as an invariable rule, to determine the length of time which shall he sufficient in this respect. All it can do is to define the constituents of the crime with such precision and certainty of meaning as language will convey, and leave it to the jury to decide whither the facts of the particular case bring it within the definition. It lias declared that the killing must he “ deliberate,” that is, (to adopt the definition given of the meaning of the words by the Supreme Court of Tennessee,) “with cool purpose,” and 41 premeditated,” that is, “a design must be formed to kill before the act by “ which death is produced is performed.” (Anthony v. The State, Meigs’ R., 277.) But it does not require that design to have existed for any certain or ■definite space of time. So far as concerns judicial examination, or inquiry on this point as a mere question of time, aside from cause or provocation,' the question is not what, length of time elapsed between the conception of the design and tlie ¡jet, but diet the preconceived intention and cool deliberate purpose exist at the moment of the commission of the act; and this, as we have said, is a question which must he determined in eacii ease by its own circumstances. It may be said, therefore, (though it may not be the most intelligible form of submitting the proposition to the apprehension of a jury, that (excluding of course the idea of provocation and passion, which do not admit of filie deliberation,) the existence of the preconceived intention for one period of time is, in a legal point of view, and so far as judicial examination is concerned, as deliberate as if it had existed for any different or greater period. This, of course, is to he understood of a case in which there is deliberation, where the act is done with cool purpose, which excludes the idea of provocation and passion, or when; in the language of the charge the killing is “ without any cause,” that is, where it is not alleviated, excused, or extenuated by any sufficient legal cause or provocation.

It is not necessary and we are disinclined to comment upon the facts in evidence, or to examine the testimony for the purpose of showing its sufficiency to support the verdict. It may suffice to say, that after an attentive consideration of it in this view, we are of opinion that it is legally sufficient; that if the witnesses were entitled to credit — and of this the jury were the exclusive judges — there was premeditation and deliberation sufficient to warrant the verdict in the view we entertain of the true intent and meaning of the statute, -and iu the view of the law which lias been announced and maintained by courts in other States upon statutory provisions similar to our own. And here it may be remarked, that while our statute changes the common law and divides murder into two degrees, differing in guilt and punishment, it does not introduce any new principle into the law respecting this degree of murder, as it has been ascertained and settled in other States upon statutes employing the same words and conveying the same meaning.

The record contains the charge of the court at length as reduced to writing under the requirement of the recent act of the legislature. It embraces much matter not applicable to the evidence in this case, and which it is not necessary to revise or to notice in the opinion.

2. It is insisted that a new trial was improperly refused on the ground that the accused was taken by surprise by the testimony of two of the witnesses, .and that the testimony of one Walton was not admitted to impeach their ■credibility by showing that one of them had made a different statement out of court from that in which they concurred on the trial. In support of the application there were the affidavits of the accused and Walton, tiie former stating- the surprise, and that he was informed that one Stripling, who resided sixteen miles distant could, upon another trial, identify tiie witness who made the statement to Walton, and Walton’s affidavit, giving- the statement which he said one of tiie witnesses, hut he could not tell which, made in liis hearing.

Upon this application it is to he observed that it does not appear by the record that Walton was offered as a witness upon the trial, or that his testimony was proposed and rejected, nothing of (lie kind is presented by the record. (This court cannot, notice the mere statements of counsel made in their motion for a new trial.) Tiie question of tiie admissibility of his testimony, therefore, is not before us in a manner to warrant an authoritative revision. The rule of law, however, seems i o be that, in order to admit proof that a witness has made statements out of court contrary to what ho lias testified on tiie trial, it is necessary first to ask him as to the, time, place, and person involved in tiie alleged contradiction, and before offering to prove his supposed contradictory statements, to ask him, upon cross-examination, whether or not he has made the statements proposed to be proved. (1 Greenl. Ev., sec. 402, 2d edit.) Nothing of the kind appears to have been done or proposed in the present case.

The alleged surprise and the materiality of the testimony of Stripling rest alone on tiie, unsupported affidavit of the accused. Neither the affidavit of the witness whoso testimony was sought nor that of the person who communicated the information was produced. It is easy to perceive that if the affidavit of the party alone and unsupported would afford sufficient legal ground for awarding a new trial, and would authorize this court to reverse the judgment in case of its refusal, it would he no difficult task to lay the ground of a reversal in every case where a new trial is refused.

The District Court must exercise a certain discretion in the granting or refusing of new trials. In considering the motion the court may judge not only of the competency hut of the effect of evidence. There may be cases where the court might weli grant a' new trial if, in the opinion of the presiding judge, injustice had been done; while, at the same time, should a new trial he .refused, this court would not be warranted in reversing' the judgment. The judge who presides at the trial is afforded much bettor and more ample means of judging of the merits of the application than the revising court can he. And therefore it is the governing rule of the action of this court, affirmed and enforced by repeated decisions from the earliest cases upon the subject to the present time, not to reverse the judgment of the District Court refusing a new trial unless some principle of law has been violated, misconceived, or disregarded to tiie prejudice of the party, or there is good reason to apprehend that injustice has been done in refusing the application. Though the District Court iu its discretion upon the application of the accused might have granted a new trial if, from the evidence and circumstances of the ease, as they were apparent to the presiding judge, in his opinion the ends of substantial justice required it, yet, from anything before us in tiie record, we cannot say that any principle or rule of law has been infringed or injustice done.

That the application for a ncw'lrial did not come within any rule of law authorizing a reversal of the judgment on account of its refusal, and that it was manifestly insufficient for that purpose, will be apparent by a reference to the rules which govern the granting' of new trials’iu similar cases, collected in "Wharton’s American Criminal Law and the authorities there cited. (Chap. 4, p. 659, 661, 664, 670.)

Upon an attentive consideration of the questions of law presented and the ■evidence in the case, we conclude that there is no error in the judgment and .that it must he affirmed.

Judgment affirmed.

Note 87. — Harrell v. Hill, 15 T., 270; Shaw a. The State, 27 T., 750.  