Cullen, J.
The question the jury are to decide is, whether he could form, under those circumstances, a design to kill. It is a mere matter of testimony. He has asked the witness, not as an expert, but as to a fact or what he knows. He is inquiring when he took a drink of liquor, what was the effect upon him ? Some men may take a drink of liquor and not be affected, and others cannot take it without they are affected. That has to be followed up by showing what the condition of this man was at the time this offence was committed. The mere fact of drunkenness, of course, has nothing to do with it, but this matter of destroying the man’s power of forming a design, is something else.
The objection was overruled and the question allowed.
Q,. “ Do you know the reputation for peace and good order of Carlo Buvo, sometimes called Charley White, in the community wherein he lived, at, and prior to the time of the alleged act, and what do you know of the habits of Charley White, or Carlo Buyo, in relation to his general character for violence ? ”
Both of the above questions were objected to, on the ground of irrelevancy.
Mr. Hilles stated that he would follow those questions up by proof that the defendant knew of the character of the deceased.
Lore, C. J.
“ Do you contend that the stab was given by the prisoner in self-defence ?
Mr. MUles.. “ I am not contending that it was a case of self- defence, but my purpose is to show that the blow, which resulted in the death of Carlo Euvo, was not dealt with that degree of malice which makes it murder in the first degree.
Nicholson, Attorney General, and Giles, Deputy Attorney General, asked for the following instructions, among others:
Any unlawful and injurious act committed intentionally, without just cause or excuse denotes malice; Kelyng 127; 1 Hawks. Pl. Cr. 95; 1 Archb. Cr. Pr. & Pl. 746; 2 Bouv. Law Dict. tit. Malice; Martinez vs. State, 16 S. W. Rep. 767; State vs. Green, 1 Houst. Crim. Rep. 217, 223.
When the crime of murder is committed with a sedate, deliberate mind and formed design to take the life of or to do some great or serious bodily injury to the person killed, it is murder with express malice aforethought at common law and of the first degree under the statute; State vs. Jones, 1 Houst. Cr. Rep. 17; State vs. Buchanan, id. 79; State vs. Gardner, id. 146; State vs. Greene, id. 217; State vs. Woodward, id. 455; State vs. Brown, id. 539; 2 Roscoe’s Cr. Ev. 760.
Lobe, C. J.
We do not think it admissible, unless your plea is one of self-defence.
Paulino Faino was produced by the defendant and asked by Mr. Hilles, “ did any accident ever happen to your brother (the prisoner) in the old country, if so, what was it.
Objected to, unless the plea of insanity is set up.
Mr. Hilles. I don’t know that we need to inform the State just exactly what the testimony is to be. Certainly if there was any effect upon this man’s mind by reason of the accident which occurred to him, even if it did not amount to insanity, I take it the jury are entitled to know it.
Lobe, C. J.
We will admit the testimony subject to the charge of the court.
No specific length of time is necessary to make an act a deliberate act in legal contemplation. If the design to take the life of, or to do some great or serious bodily injury to the person killed be but the conception and intention of a moment, it is deliberate in legal contemplation as if it had been the designs of hours.
Deliberate in its legal sense denotes purpose and design in contradistinction to accident and mischance. State vs. Costen, 1 Houst. Cr. Rep. 340, 347; State vs. Webster, Bemis. 458; State vs. Green, 1 Houst. Cr. Rep. 217, 225; State vs. Pratt, id. 249, 262; Seam vs. State, 4 So. Rep. 521.
Provocation to avail anything must be something which the slayer feels at the instant of its occurrence, and he must act under the sting of that provocation, and resent it at once without delay or time for thought or reflection. If, between the provocation and the act of violence causing the death, there intervenes sufficient time for passion to subside, or the blood to cool, or time under the circumstances for the exercise of reflection and the formation of a deliberate purpose in respect to the act which he is about to do provocation will not avail anything. State vs. Costen, 1 Houst. Cr. Rep. 340.
Nor can it alter or mitigate the grade or degree of the murder that the party was at the time in part excited or inflamed with intoxicating liquor, as well as anger and passion, or was intoxicated, if he had sufficient knowlege, thought, and reflection left to be able to exercise and to show such deliberation and choice and to form such design. State vs. Gardner, 1 Houst. C. Rep. 146-149.
Manslaughter in contemplation of law, can only occur in an assault and battery when both are combatants in it, or have been, and one of them in the heat of blood or transport of passion produced by it, deals the other a fatal blow or suddenly seizes without deliberation or premeditation and before he has had time to cool, a deadly weapon or dangerous instrument and inflicts a mortal wound upon him, but not when the other is but the passive and unresisting recipient and victim of the blows of the other party ; State vs. Hamilton, 1 Houst. Cr. Rep. 101, 104.
No mere words, however insulting or provoking they may be, and however much they may exasperate a defendant or excite his anger and passion and heat his blood, will constitute a sufficient provocation for an assault; State vs. Draper, 1 Houst. Crim. Rep. 531.
The plea of self-defence cannot enter into the deliberation of the jury in this case in making up its verdict. The prisoner has excluded such a defence by his admission that the crime is at least manslaughter. Self-defence is an entire and complete defence or it is no defence at all.
The defence of drunkenness, such as is alleged in this case, can under no circumstances reduce the crime below the grade of murder in the second degree.
William S. Hilles and William Miehael Byrne, for the defendant, requested that the following instructions, among others, be given to the jury:
The homicide as charged in the indictment being proved, the law presumes that it was committed with malice unless the contrary appears upon the proof produced at the trial, but it goes no further than to imply malice, and therefore the legal presumption goes no further in such a case than that it is murder in the second degree under our statute; State vs. O’Niel et al., Houst. Crim. Rep. 58.
If the jury believe that the killing was done on provocation, but that sufficient time had elapsed for the blood to cool, for passion to subside and reason to interpose, it would be murder of the second degree. State vs. Frazer, Houst. Cr. Rep. 176, 199.
There are no precise limits of time within which the blood may be supposed to cool, passion to subside and reason to interpose, but every case depends upon its own circumstances, and the cooling time would be what was reasonable under the circumstances of the case. State vs. Frazer, Houst. Cr. Rep. 176, 199 ; State vs. Till, id. 233, 246.
If the jury believe from the evidence that owing to the prisoner’s intoxication, the condition of the prisoner’s mind and his mental capacity were such that he was unable to form a specific intent or a deliberate design to kill the deceased, they cannot find the prisoner guilty of murder in the first degree. State vs. Bowen, Houst. Cr. Rep. 91-96; State vs. Hurley, id. 28, 36; State vs. Frazer, id. 176, 198.
If the jury believe from the evidence that the homicide was committed by the accused in a state of intoxication and by a certain provocation given him by the party killed, and when a smaller provocation may be allowed to alleviate the offense and reduce it from murder in the first to murder in the second degree under the statute, owing to the well-known fact that a person in that condition is more liable to be suddenly heated and blinded to a higher degree of angry passions than a sober man would be under the same or similar provocation, they should find the prisoner guilty of murder in the second degree. State vs. Hurley, Houst. Cr. Rep. 28, 36.
Lore, C. J.,
(charging the jury.)
On the twentieth day of April, 1894, at Ho. 104 Market Street, in this city, Carlo Ruvo was killed. He was stabbed or cut in the neck by Michael Faino, the prisoner, with a long, sharp-pointed knife, which has been shown to you; the carotid artery was severed and death ensued almost instantly.
For this homicide the prisoner is indicted for the crime of murder in the first degree.
Under this indictment, if warranted by the proof, you may find the prisoner guilty of murder of the first degree, or of murder of the second degree, or of manslaughter.
It is therefore necessary that you should be instructed by the Court, as to what constitutes these three grades of homicide.
1. Murder of the first degree consists in killing a human being with express malice aforethought, or in perpetrating, or attempting to prepetrate, any crime punishable with death; that is to say in general, when it is committed with a sedate, deliberate mind and formed design to take the life of, or to do some great or serious bodily injury to the person killed. Such design may be shown from the circumstances attending the act, such as the delibererate selection and use of a deadly weapon, a preconcerted hostile meeting, privily lying in wait, a previous quarrel or grudge, antecedent menaces or threats, or in preparation of means to effect such design or intent.
2. Murder of the second degree, is where there was no such deliberately formed design to take life or to perpetrate or attempt to perpetrate a crime punishable with death, but where, nevertheless, the killing was without justification or excuse; without any provocation or without sufficient provocation to reduce the homicide to the grade of manslaughter.
3. Manslaughter is the unlawful killing of a human being without malice express or implied.
Malice aforethought is the essence of murder. In manslaughter there is no malice.
Under the law and evidence in this case it is now your duty to find by your verdict of which of these grades of homicide the prisoner is guilty.
Whenever one person is killed by another, unless it be under the sentence of the law, it is presumed in law to be unlawful, and to have been done with malice aforethought until the contrary appears.
If the jury are satisfied from the proof that the prisoner at the time of the homicide stabbed or cut the deceased with a knife produced in this cause, which is a deadly weapon, with the intent to kill him, in pursuance of a sedate and deliberate mind and formed design to take his life or to do him some great or severe bodily injury, although such design may not have been formed until the precise time of killing—he would be guilty of murder with express malice aforethought and of the first degree under our statute, and your verdict should be guilty in manner and form as he stands indicted.
It is claimed by the defendant that by reason of intoxication the condition of the prisoner’s mind and his mental capacity were such that he was unable to form a specific intent or deliberate design to kill the deceased, and that therefore he is not guilty of murder of the first degree. Such a defence when set up must be proved to your satisfaction. As a general rule, drunkenness is no excuse for murder or any other crime whatever. This rule has been relaxed under the rulings in this State to the extent that drunkenness may reduce the grade of murder from the first to the second degree. In order to so reduce the grade of the crime you must be satisfied that the prisoner was so drunk as to be utterly incapable of forming a specific intent or deliberate design to kill. If you are so satisfied from the proof your verdict should be not guilty in manner and form as he stands indicted, but guilty of murder of the second degree.
It is further urged in behalf of the prisoner, that his crime is only manslaughter, for the reason, that the deceased had previous to the killing made an assault upon the prisoner in an altercation between them in another house, and that the prisoner while in the heat of passion occasioned thereby, killed the deceased before his passion had time to subside and reason to interpose.
If you are satisfied that the prisoner killed the deceased in a sudden brawl or quarrel, under provocation, in the heat of passion, without time for reflection or deliberation, and without cooling time, then your verdict should be, not guilty, in manner and form as he stands indicted, but guilty of manslaughter.
In order to reduce the offence to manslaughter, however, you must be satisfied that the death wound was given upon provocation in a sudden brawl or altercation between the prisoner and the deceased, and in the heat of passion, without time for reflection and deliberation and without cooling time. Where death is produced by a deadly weapon, as in this case, the provocation must be very great to reduce the crime to manslaughter. No mere words, how ever insulting, no defying gestures or weak assault will constitute such a provocation.
It is the duty of the State to prove to your satisfaction all the material elements of the crime charged. When proved, however, on the part of the State, and a defence is set up it is the duty of the prisoner to prove such defence to your satisfaction.
If you have any reasonable doubt upon the proof as to the guilt of the prisoner—such a reasonable doubt as your conscience compels you to entertain—you should give the prisoner the benefit of that doubt.
Now gentlemen it is your grave and important duty to determine the question of the prisoner’s guilt upon the proof in this case. Under the law, you are the sole judges of the proof; it is yours to determine the grade of the offence. With the consequences of your verdict you have nothing whatever to do. The single question for you to determine is, whether the prisoner is guilty or innocent?
Verdict guilty.