Mr. Justice PARKER
delivered the opinion of the court.
Defendant, Emma Breen Kennedy, convicted by a jury of second-degree murder and sentenced to a term of from twenty to twenty-one years, has appealed, contending that she was deprived of the right of counsel, that her written confession was inadmissible as not being voluntarily given, that the evidence is insufficient to sustain a verdict of murder in the second degree, and that certain statements of the court made in the presence of the jury were prejudicial to her.
The salient facts relating to the occurrences on the night of the homicide do not seem to be in dispute. On the evening of May 23, 1964, defendant was arrested by the city police in Rawlins for driving while under the influence of intoxicating liquor and because the police had no place to maintain a female prisoner was brought to the Carbon County Sheriff’s Office about 7:40 p. m., remained there until approximately 9 p. m., when her husband made bond for her and the two departed, proceeding by automobile toward Sinclair, Wyoming, some four or five miles distant. On the way, she got out of the car once, flagged down another automobile, and attempted to get a ride back to Rawlins, but apparently unsuccessful in the attempt, proceeded with her husband to Sinclair and went directly to their home at 103 South Eighth Street. The defendant’s next-door neighbor, Mrs. Lois Smith, saw the Kennedy car arrive between 9: IS and 9:30 p. m. and saw defendant climb out and go into the house. Defendant herself testified' that upon her entrance into the house she pushed a couch in front of the door to attempt to keep her husband from coming in. Her husband thereafter pushed the door open, at which time the defendant pointed a pistol at him and told him not to come in the house. He left and went next door and returned with their neighbor, Mrs. Smith, who tried talking to defendant from the porch through the closed door, in front of which Mr. Kennedy and Mrs. Smith were standing. Mrs. Smith turned to leave the porch and a shot was fired through the door, fatally wounding Mr. Kennedy. Defendant testified that she had a gun in her hand, was swinging it from side to side, and that it discharged. It was this shot, which pierced the door and hit Mr. Kennedy in the chest, that Mrs. Smith heard when she turned to leave the porch. An ambulance was summoned and Mr. Kennedy was taken to the hospital, where he was pronounced dead less than an hour later; meantime, defendant was placed under arrest and taken into custody. Later, after a purported warning by the sheriff, the defendant made a statement concerning what had happened. Upon completion of the statement, she inquired about her husband; the sheriff telephoned, ascertained that he was dead, told the defendant, and she said that she was glad.
Deprivation of Right to Counsel
Appellant contends that she was denied counsel as required by Art. 1, § 10, Wyo. Const., and amend. VI, U.S.Const., and urges that the rule announced in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, is here applicable, which provides, inter alia, 84 S.Ct. at 1765, “where * * * the suspect has requested .and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, * * * no statement elicited by the police during the interrogation may be used against him at a criminal trial.”
[90]*90Since defendant does not contradict the testimony that she was advised of her right to counsel both orally by the sheriff and in the preface to her written confession, the basis of her argument seems to be that following the shooting and at the time of her arrest and subsequent interrogation she was in such a state of shock and intoxication that she was without capacity to intelligently waive the right of counsel. However, she cites no cases dealing with the effect of a defendant’s being intoxicated at the time he is advised of his constitutional rights.
Testimony concerning the occurrences on the evening of the crime is of significance. Sheriff Ogburn testified that after going to the scene of the shooting and arresting the defendant he took her to the county jail, booked her, and asked if she wished to have an attorney or make a telephone call. He also asked her if she would like to make a statement pertaining to the incident. She said she would, whereupon he advised her that she did not have to make a statement and that she could have counsel; she replied she would like to have someone to talk to and get it off her mind. The sheriff testified that he thereafter repeated his statement that she was allowed counsel and did not have to make a statement but if she wanted to do so, he would take one. He testified that defendant then said, “ T am awful nervous and I would rather have the girl there write it out for me.’ ” The statement, the first page of which was a narrative account of certain happenings, and the second, third, and fourth pages, questions to and answers from defendant, was thereupon, commencing at 10:52 p. m., written down by Diana Sanchez, the sheriff’s stenographer. Sheriff Ogburn testified that it was his opinion that during the evening of May 23 the defendant was not intoxicated although she had been drinking. Miss Sanchez said she first saw defendant in the jail about 10:30 p. m., that defendant then wanted to go home and promised if they would permit her to return to her home she would stay there, that Sheriff Ogburn refused but said she was allowed to call an attorney from the kitchen in the jail, and that defendant said she did not want an attorney. When asked if Mrs. Kennedy had been drinking, Miss Sanchez replied, “I did not know she had been drinking. She did not seem to be drunk at that time. * * * She walked perfectly well * * She-said that defendant was nervous and shaky and seemed as if she had been crying.
While various witnesses of defendant testified that she was intoxicated prior to the time of the homicide, defendant presented no evidence other than her own statement that she was intoxicated at the time that she was taken to the jail and subsequently when she gave the statement. Defendant said she did not know when she took the last drink on May 23, and without question was nervous and somewhat shocked by the occurrences of the evening; but the testimony of the sheriff and his stenographer constituted clear and definite evidence that although admittedly she had been drinking during the evening she was not at the time of the statement intoxicated to such a degree as not to know what she was doing but was fully aware of what was happening. Under this state of the record, we cannot hold that the defendant was without capacity to intelligently waive the right of counsel, and accordingly, the first claim of error is not justified.
Inadmissibility of Confession as Not Being Voluntarily Given
Closely allied to the claim that defendant was denied counsel is that of her written confession’s being inadmissible. The purported confession, written in pen by Miss Sanchez, consisted of four sheets, each beginning with the printed statement (with blanks appropriately filled in): “TIME - DATE - PLACE - I, -, HAVING been advised of my rights under the FIFTH AMENDMENT to the CONSTITUTION as to compulsory self incrimination, my right of counsel and my right of trial, and knowing that anything that I say may be used against me in a court of law, and [91]
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Mr. Justice PARKER
delivered the opinion of the court.
Defendant, Emma Breen Kennedy, convicted by a jury of second-degree murder and sentenced to a term of from twenty to twenty-one years, has appealed, contending that she was deprived of the right of counsel, that her written confession was inadmissible as not being voluntarily given, that the evidence is insufficient to sustain a verdict of murder in the second degree, and that certain statements of the court made in the presence of the jury were prejudicial to her.
The salient facts relating to the occurrences on the night of the homicide do not seem to be in dispute. On the evening of May 23, 1964, defendant was arrested by the city police in Rawlins for driving while under the influence of intoxicating liquor and because the police had no place to maintain a female prisoner was brought to the Carbon County Sheriff’s Office about 7:40 p. m., remained there until approximately 9 p. m., when her husband made bond for her and the two departed, proceeding by automobile toward Sinclair, Wyoming, some four or five miles distant. On the way, she got out of the car once, flagged down another automobile, and attempted to get a ride back to Rawlins, but apparently unsuccessful in the attempt, proceeded with her husband to Sinclair and went directly to their home at 103 South Eighth Street. The defendant’s next-door neighbor, Mrs. Lois Smith, saw the Kennedy car arrive between 9: IS and 9:30 p. m. and saw defendant climb out and go into the house. Defendant herself testified' that upon her entrance into the house she pushed a couch in front of the door to attempt to keep her husband from coming in. Her husband thereafter pushed the door open, at which time the defendant pointed a pistol at him and told him not to come in the house. He left and went next door and returned with their neighbor, Mrs. Smith, who tried talking to defendant from the porch through the closed door, in front of which Mr. Kennedy and Mrs. Smith were standing. Mrs. Smith turned to leave the porch and a shot was fired through the door, fatally wounding Mr. Kennedy. Defendant testified that she had a gun in her hand, was swinging it from side to side, and that it discharged. It was this shot, which pierced the door and hit Mr. Kennedy in the chest, that Mrs. Smith heard when she turned to leave the porch. An ambulance was summoned and Mr. Kennedy was taken to the hospital, where he was pronounced dead less than an hour later; meantime, defendant was placed under arrest and taken into custody. Later, after a purported warning by the sheriff, the defendant made a statement concerning what had happened. Upon completion of the statement, she inquired about her husband; the sheriff telephoned, ascertained that he was dead, told the defendant, and she said that she was glad.
Deprivation of Right to Counsel
Appellant contends that she was denied counsel as required by Art. 1, § 10, Wyo. Const., and amend. VI, U.S.Const., and urges that the rule announced in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, is here applicable, which provides, inter alia, 84 S.Ct. at 1765, “where * * * the suspect has requested .and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, * * * no statement elicited by the police during the interrogation may be used against him at a criminal trial.”
[90]*90Since defendant does not contradict the testimony that she was advised of her right to counsel both orally by the sheriff and in the preface to her written confession, the basis of her argument seems to be that following the shooting and at the time of her arrest and subsequent interrogation she was in such a state of shock and intoxication that she was without capacity to intelligently waive the right of counsel. However, she cites no cases dealing with the effect of a defendant’s being intoxicated at the time he is advised of his constitutional rights.
Testimony concerning the occurrences on the evening of the crime is of significance. Sheriff Ogburn testified that after going to the scene of the shooting and arresting the defendant he took her to the county jail, booked her, and asked if she wished to have an attorney or make a telephone call. He also asked her if she would like to make a statement pertaining to the incident. She said she would, whereupon he advised her that she did not have to make a statement and that she could have counsel; she replied she would like to have someone to talk to and get it off her mind. The sheriff testified that he thereafter repeated his statement that she was allowed counsel and did not have to make a statement but if she wanted to do so, he would take one. He testified that defendant then said, “ T am awful nervous and I would rather have the girl there write it out for me.’ ” The statement, the first page of which was a narrative account of certain happenings, and the second, third, and fourth pages, questions to and answers from defendant, was thereupon, commencing at 10:52 p. m., written down by Diana Sanchez, the sheriff’s stenographer. Sheriff Ogburn testified that it was his opinion that during the evening of May 23 the defendant was not intoxicated although she had been drinking. Miss Sanchez said she first saw defendant in the jail about 10:30 p. m., that defendant then wanted to go home and promised if they would permit her to return to her home she would stay there, that Sheriff Ogburn refused but said she was allowed to call an attorney from the kitchen in the jail, and that defendant said she did not want an attorney. When asked if Mrs. Kennedy had been drinking, Miss Sanchez replied, “I did not know she had been drinking. She did not seem to be drunk at that time. * * * She walked perfectly well * * She-said that defendant was nervous and shaky and seemed as if she had been crying.
While various witnesses of defendant testified that she was intoxicated prior to the time of the homicide, defendant presented no evidence other than her own statement that she was intoxicated at the time that she was taken to the jail and subsequently when she gave the statement. Defendant said she did not know when she took the last drink on May 23, and without question was nervous and somewhat shocked by the occurrences of the evening; but the testimony of the sheriff and his stenographer constituted clear and definite evidence that although admittedly she had been drinking during the evening she was not at the time of the statement intoxicated to such a degree as not to know what she was doing but was fully aware of what was happening. Under this state of the record, we cannot hold that the defendant was without capacity to intelligently waive the right of counsel, and accordingly, the first claim of error is not justified.
Inadmissibility of Confession as Not Being Voluntarily Given
Closely allied to the claim that defendant was denied counsel is that of her written confession’s being inadmissible. The purported confession, written in pen by Miss Sanchez, consisted of four sheets, each beginning with the printed statement (with blanks appropriately filled in): “TIME - DATE - PLACE - I, -, HAVING been advised of my rights under the FIFTH AMENDMENT to the CONSTITUTION as to compulsory self incrimination, my right of counsel and my right of trial, and knowing that anything that I say may be used against me in a court of law, and [91]*91knowing that I do not have to make any -statement at all do hereby volunteer the following to-who has identified himself as-,” and each signed at the bottom by the defendant and witnesses. As heretofore noted, the first page is a third-person narrative by the sheriff of the happenings of the evening relating to Mrs. Kennedy and was obviously not the statement in the words of the defendant. The following pages purport to be questions propounded by the sheriff and answered by the defendant.
Our foregoing discussion concerning right to counsel contains various references to evidence regarding defendant’s condition as to sobriety and understanding and those same circumstances are here relevant in our consideration of the voluntariness of her statement. It is unnecessary to again delineate the testimony which showed that defendant was advised of her constitutional rights, warned that anything she might say could be used against her in a court of law, and told of her right to have counsel.
Miss Sanchez said she wrote down defendant’s statements and “When I was writing it she [defendant] was telling me what to put down and she would comment that it was right. * * * She was watching me while I wrote it.” This testimony, coupled with that of the sheriff previously mentioned, indicates that Mrs. Kennedy was not so intoxicated as to lack understanding as to what she was doing, that she voluntarily answered the questions, and signed the statement without coercion or persuasion from the authorities. She does not deny any of this testimony regarding the taking of the statement but merely says that she doesn’t remember. The court passed upon the voluntariness of the statement in the first instance and thereafter instructed the jury that before it might take the confession into consideration it must for itself find whether or not it was voluntary.
Some point is made of a discrepancy in a typed statement on the “Arrested Prisoner’s Information” 1 taken at the time that Mrs. Kennedy was arrested at 7:40 p. m., May 23, for driving while under the influence of intoxicating liquor, which indicated her residence was “Saratoga, Wyoming.” However, such discrepancy has little probative force to show the sobriety or nonsobriety of defendant at 7:40 p. m. and relatively less as related to her condition at 10:52 p. m. and thereafter.
From our review of the record, we conclude that the trial court was fully warranted in holding that the written confession of defendant was voluntarily given after she had been advised of her constitutional rights.
Sufficiency of the Evidence to Sustain Verdict
Whether or not the evidence adduced at the trial was sufficient to sustain a verdict of murder in the second degree is, of course, a question which requires careful analysis and consideration. The statute upon which the conviction is predicated, § 6-55, W.S. 1957, reads, “Whoever purposely and maliciously, but without premeditation, kills any human being, is guilty of murder in the second degree * * It is argued that under the holding in Nunez v. State, Wyo., 383 P.2d 726, in order to sustain a conviction of second-degree murder, the State must prove beyond a reasonable doubt that the defendant killed the victim purposely, meaning intentionally or deliberately, and maliciously. However, as will be observed, such general rule is not particularly helpful in resolving the problem. Admittedly, the deceased died as a [92]*92result of a bullet wound inflicted by the discharge of a gun held in the hand of defendant and appellant concedes on the authority of 41 C.J.S. Homicide § 316, p. 29, that malice may be inferred from the use of a deadly weapon, but says, according to 40 C.J.S. Homicide § 25, pp. 876 and 877, in order that an implication of malice may arise from the use of a deadly weapon, it must appear that its use was willful or intentional, deliberate, or wanton, arguing that here “[a]s in the Bruner case [State v. Bruner, 78 Wyo. 111, 319 P.2d 863] the exact use of the gun is unknown.” This, we think, is a statement not borne out by the record. The occurrences immediately prior to the shooting by Mrs. Kennedy are delineated by three sources, (1) her own testimony on the stand, (2) the witnesses present, and (3) her confession.
Mrs. Kennedy in her testimony told of leaving the sheriffs office about 9 p. m. on May 23, 1964, following her release on bond under the motor vehicle charge, in company with her husband, of how en route home she got out of the car and attempted to flag down passersby to take her back to Rawlins, of getting into the rear seat of the Kennedy car when she was refused a ride and their proceeding to 103 South Eighth Street, Sinclair, where she got out of the car. She then testified, “I walked into the house and I pushed the couch against the front door. * * * the next that I remember Gene opened the door. The light was on and he opened, he pushed the couch away from the door and opened the door. At the particular point there was a gun on the coffee table. I picked it up and pointed it and I said, ‘Don’t come into the house.’ * * * Gene closed the door and backed out. I walked over and turned off the light and started to go to the bedroom. * * * I had * * * gotten probably to the hall when Lois came over, and came on the porch and she said, ‘Emma, come and let me in.’ * * * I had the gun in my hand and I swung it like this (indicating) and I said ‘Get Off the porch.’ Just ‘Damn, get off the porch.’ I was swinging this gun like that away from me.” When asked what Mrs. Smith said in return, she responded, “She asked me to let her in. She-asked me to have coffee with her I think, or something like that. I don’t remember. * * * I was swinging the gun this way (indicating). The thing went off right ⅛ front of me and it was just — went wham like that (indicating) and that was this-horrible blue fire and all this noise and everything. Then I just don’t remember. * * * There seemed to be a lot of confusion and I remember Lois saying to me-that I had shot Gene.”
Mrs. Lois Smith said that at about 9:30 p. m., May 23, Mr. Kennedy knocked at her door and asked if she would go over and try to talk to his wife. Mrs. Smith thereupon called her on the telephone but received no answer and went over to the house. In her own words, “We went — I went to the front door and knocked, and called to Mrs. Kennedy. She answered me.. * * * I asked her if she would open up the door and let me in. * * * She said,. ‘No.’ * * * I asked her if she wouldn’t come over to the house and have a cup of' coffee with me. She said, ‘No, God damn it, go away.’ Then I said, T will go on home and make coffee and call you when it is made and you come over.’ * * * I turned away to leave the porch. * * * There was a shot. * * * Mr. Kennedy said ‘My God, she hit me.’ * * * [I was] right at the door * * * next to * * * [Mr. Kennedy].” When asked if she heard anything before the shot, she said, “There was a sound that I assumed was keys going into the door or jingling,” and that she heard the shot almost instantaneously. (Although Mrs. Smith said that for all she knew the jingling could have been change in Mr. Kennedy’s pocket, she admitted that shortly after the shooting she had given a statement to the prosecuting attorney indicating that Mr. Kennedy tried to put the key in the door and then the shot was fired.) Mrs. Smith immediately went to get her husband and called the sheriff. Later, in order to provide ade[93]*93quate lighting for her husband, she entered the Kennedy house through the back door and turned on the porch light. At that time she found the Yale lock on the front door locked.
Sheriff Ogburn testified that upon his arrival he found Mr. Kennedy lying on the porch in great pain and that Mr. Kennedy had then stated he had been shot by his wife. The sheriff went inside the house, informed defendant she was under arrest for shooting her husband, and subsequently took her to Rawlins. At about 10:50 p. m., the sheriff with his stenographer took the statement to which reference has been made heretofore. In that statement he asked: •
“Q. In your own words can you tell me what took place concerning the shooting ? A. Gene came in the front door and I had the gun, and I said ‘Go away or I’ll shoot you.’ He closed the door and I had the gun in my hand, and when Gene said something to me, I can’t remember what he said, and I told him to go off of the porch. It was quiet, and I pulled the trigger, and Lois told me that I had shot Gene. * * * We then went over to her house and she called the police or the ambulance. If I had known the gun was loaded, I would never have pulled the trigger.”
Miss Sanchez testified that after the statement had been given, a little before midnight, defendant asked about her husband, the sheriff telephoned and was advised of his death, and when he so informed Mrs. Kennedy, she said, “ T have no remorse. I am glad.’ ”
From the testimony of Mrs. Smith, together with that of the defendant herself on the witness stand, the jury would have been justified in believing that when deceased opened the door and pushed the couch away from it defendant picked up the gun, pointed it and said, “ ‘Don’t come into the house’ ”; that subsequently while defendant had the gun in her hand she swung it and said, “‘Damn, get off the porch’”; that she fired the fatal shot through the door, striking deceased; and that immediately prior to the shooting deceased had started to unlock the door and defendant could have heard the movement of the keys. These circumstances disclose a situation totally unlike that in Bruner, where the court said the exact use of the gun was-unknown, and were sufficient upon which the jury might predicate a verdict of intentional shooting despite defendant’s protestations of no intent. The admission of defendant in her statement that she had told deceased, “ ‘Go away or I’ll shoot you,’ ” and that thereafter she pulled the trigger, and her statement that she was glad for deceased’s death were additional evidence which tended to show intention. Moreover, even without reference to intention, the evidence was sufficient to show the commission of a wanton act in the shooting.
Statements of the Court
Careful attention has been given to the argument that the words of the court in the presence of the jury were highly prejudicial to the defendant. She insists that after she had explained her confusion in trying to reconcile certain matters and the court had admonished her to just tell “what you do remember,” the court, following one of her noncommittal replies, had said, “Ma’am you asked for advice and I said to you if you don’t know to answer I don’t know. Now this may or not be good advice to you because if you don’t know anything except certain things that might sound bad for you, and I probably shouldn’t have talked to you in the first place. Having talked to you and answered you I think I ought to say that you ought to remember everything you can.” Also, it is charged' that when the defendant was demonstrating the swinging of the gun as of the time of the shooting the court said, “You would have got the Reporter that time.” The first-mentioned remark by the court would seem to be normal and proper, if anything was to be said to the witness at all. Certainly, no prejudice can come from an admonition to remember everything possible. [94]*94There was no basis for the court’s having said anything at the time of the second remark, hut we do not consider it error, and neither precedent nor cogent argument is presented to show that it was prejudicial. It is argued that in Kendrick v. Healy, 27 Wyo. 123, 192 P. 601, this court indicated that comment by the trial judge should be within due bounds and appropriate to the character of the occurrence, and we adhere to that view. However, we find no violation of that established rule by the trial court nor abuse of discretion.
Since there was no error in the trial of the above-entitled cause, the verdict of the jury and the judgment of the court must stand.
Affirmed.