Mr. Justice White
delivered the opinion of the court:
George King was tried for, and convicted of the murder of Helix Jackson, commonly known as Pete Jackson, and, upon the verdict of the jury, sentenced to death. He brings the case here for review.
In instructing the jury as to- -the meaning of the word “deliberately” the court stated, inter aliathat it does not mean “brooded over or reflected upon for a week, or a day, or an hour, but it means an intent to kill, executed by the defendant in a cool state of the blood,n ei cetera, and plaintiff in error claims that by the use of the adjective “the” instead of “a” before the word “defendant,” the court thereby expressed an [124]*124opinion that the “defendant on trial had in a cool state of the blood committed the crime charged.”
We are not impressed with the criticism or the inference sought to be drawn from the language used. The clear meaning of the instruction is, that deliberation, as an element of the crime, did not exist, unless the jury found that the defendant, in the absence of overpowering passion, distinctly formed in his mind the intent to kill the deceased, and thereafter, however short the time, so- executed the act of killing.
Instruction No. -8 told the jury that in order to warrant them in finding a verdict of murder in the first degree, “you must find, and so indicate in your verdict, that the killing was with deliberation and premeditation,” and it is claimed that because they were not also told therein that such finding must be upon the evidence and beyond all reasonable doubt, it constitutes reversible error. The burden of proof to establish the guilt of defendant from the evidence beyond- a reasonable doubt, was placed upon the people by Instruction No. 5, which also declared that the defendant must be presumed to be innocent of the crime charged against him until proven guilty by the evidence beyond a reasonable doubt. Moreover, the necessity of finding the truth of the charge from the evidence beyond all reasonable doubt was covered by several other instructions, and it is clear that no possible misconception in that respect could have entered the minds of the jurymen. It is not a case where there was given an incorrect and a correct instruction covering the same matter, but rather one wherein that which is said to be an omission from one instruction was supplemented and cured by the language of another forming a portion of the same charge.
Instruction No. 9 told the jury that if they believed and found from the evidence beyond a reasonable doubt that one “John Fields * * * wilfully, unlawfully, feloniously, deliberately, premeditatedly and with malice aforethought,” killed and murdered the deceased, and “if you should further find and believe from the evidence beyond a reasonable doubt [125]*125that the said defendant, George Kang, was present at the time and place aforesaid, and did then and there “unlawfully, wilfully, feloniously, deliberately, premeditatedly and of his malice aforethought, abet or assist” in such killing, “then you are instructed that the defendant, George King, is also guilty of murder of the first degree, and you should so^ find and state in your verdict.” It is claimed that the instruction constitutes reversible error, because the question of the degree of murder is thereby taken from the jury. We do not believe that the instruction has the effect claimed. The statute declares murder to be the unlawful killing of a human being with malice aforethought, either express or implied, by any of the various means by which death may be occasioned. Sec. 1622, R. S., 1908. And section 1624, R. S., 1908, declares, inter alia, that murder which shall be perpetrated “by any kind of willful, deliberate and premeditated killing,” or “which is committed in the perpetration or attempt to perpetrate any * * * robbery * * * shall be deemed murder of the first degree.” By Instruction No. 3 the two degrees of murder, as defined in the statute, were fully explained. So the substantial effect of Instruction No. 9 was to say to the jury that if they found from the evidence beyond a reasonable doubt that John Fields was guilty of murder in the first degree, and that the defendant was an accessory thereto during the fact, deliberately and premeditatedly assisting therein, he was likewise guilty of murder in the first degree, and they should so find by their verdict.
A like objection and criticism is made and urged against Instruction No'. 10. It told the jury that if they found and believed from the evidence beyond a reasonable doubt that defendant and Fields, at a time and place named, did wilfully ■and feloniously engage in an attempt to' take from the person of Jackson, by violence and force, or by violence and intimidation, his money, goods or other valuable things, and while so engaged Fields did unlawfully and feloniously shoot and kill Jackson, and at the time the shot was fired by Fields and the mortal wound inflicted upon Jackson, the defendant, [126]*126George King, was present, unlawfully and feloniously aiding, abetting .or assisting Fields in the attempt to take from Jackson his money, et cetera, then the defendant, King", would -be guilty of murder in the'first degree, and the jury should so find and state in their verdict.
While it is true that when the crime of murder is established the law declares it to be murder of the second, in the absence of circumstances showing it to have been murder of the first degree, nevertheless when the facts and circumstances in evidence are detailed in an instruction and embody only the elements of murder in the first degree as declared by the statute, it is not improper to state in an instruction that if the jury finds the existence of such facts beyond a reasonable doubt the defendant would be guilty of murder in the first degree, and the jury should so find. The statute makes a homicide committed in the perpetration or attempted perpetration of robbery, murder in the first degree, and the substantial effect of the instruction was to impose the duty upon the jury to ascertain whether the robbery had been committed or attempted, and, if so, whether the homicide had been committed in the perpetration thereof. If both were found in the affirmative, beyond a reasonable doubt, the statute fixes the homicide as murder, of the first degree, and under such circumstances that degree is the only grade of the offense of murder the evidence will support. The rule as stated in 21 Cyc. 1067, is that, “where the absence of an actual preconceived design to', take life does not reduce the grade of the offense, where the homicide was committed in the perpetration of certain other felonies, such as arson, burglary, rape, or robbery, the court need not, in such cases, instruct the jury as to minor included offenses.” Under such circumstances there is but one grade of the offense, that is, murder in the first degree.
By Instruction No. 12, the jury were told, substantially, that if' they found beyond a reasonable doubt that John Field's wilfully, unlawfully, feloniously and with malice aforethought, killed the deceased, and they did not find that such. [127]
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Mr. Justice White
delivered the opinion of the court:
George King was tried for, and convicted of the murder of Helix Jackson, commonly known as Pete Jackson, and, upon the verdict of the jury, sentenced to death. He brings the case here for review.
In instructing the jury as to- -the meaning of the word “deliberately” the court stated, inter aliathat it does not mean “brooded over or reflected upon for a week, or a day, or an hour, but it means an intent to kill, executed by the defendant in a cool state of the blood,n ei cetera, and plaintiff in error claims that by the use of the adjective “the” instead of “a” before the word “defendant,” the court thereby expressed an [124]*124opinion that the “defendant on trial had in a cool state of the blood committed the crime charged.”
We are not impressed with the criticism or the inference sought to be drawn from the language used. The clear meaning of the instruction is, that deliberation, as an element of the crime, did not exist, unless the jury found that the defendant, in the absence of overpowering passion, distinctly formed in his mind the intent to kill the deceased, and thereafter, however short the time, so- executed the act of killing.
Instruction No. -8 told the jury that in order to warrant them in finding a verdict of murder in the first degree, “you must find, and so indicate in your verdict, that the killing was with deliberation and premeditation,” and it is claimed that because they were not also told therein that such finding must be upon the evidence and beyond all reasonable doubt, it constitutes reversible error. The burden of proof to establish the guilt of defendant from the evidence beyond- a reasonable doubt, was placed upon the people by Instruction No. 5, which also declared that the defendant must be presumed to be innocent of the crime charged against him until proven guilty by the evidence beyond a reasonable doubt. Moreover, the necessity of finding the truth of the charge from the evidence beyond all reasonable doubt was covered by several other instructions, and it is clear that no possible misconception in that respect could have entered the minds of the jurymen. It is not a case where there was given an incorrect and a correct instruction covering the same matter, but rather one wherein that which is said to be an omission from one instruction was supplemented and cured by the language of another forming a portion of the same charge.
Instruction No. 9 told the jury that if they believed and found from the evidence beyond a reasonable doubt that one “John Fields * * * wilfully, unlawfully, feloniously, deliberately, premeditatedly and with malice aforethought,” killed and murdered the deceased, and “if you should further find and believe from the evidence beyond a reasonable doubt [125]*125that the said defendant, George Kang, was present at the time and place aforesaid, and did then and there “unlawfully, wilfully, feloniously, deliberately, premeditatedly and of his malice aforethought, abet or assist” in such killing, “then you are instructed that the defendant, George King, is also guilty of murder of the first degree, and you should so^ find and state in your verdict.” It is claimed that the instruction constitutes reversible error, because the question of the degree of murder is thereby taken from the jury. We do not believe that the instruction has the effect claimed. The statute declares murder to be the unlawful killing of a human being with malice aforethought, either express or implied, by any of the various means by which death may be occasioned. Sec. 1622, R. S., 1908. And section 1624, R. S., 1908, declares, inter alia, that murder which shall be perpetrated “by any kind of willful, deliberate and premeditated killing,” or “which is committed in the perpetration or attempt to perpetrate any * * * robbery * * * shall be deemed murder of the first degree.” By Instruction No. 3 the two degrees of murder, as defined in the statute, were fully explained. So the substantial effect of Instruction No. 9 was to say to the jury that if they found from the evidence beyond a reasonable doubt that John Fields was guilty of murder in the first degree, and that the defendant was an accessory thereto during the fact, deliberately and premeditatedly assisting therein, he was likewise guilty of murder in the first degree, and they should so find by their verdict.
A like objection and criticism is made and urged against Instruction No'. 10. It told the jury that if they found and believed from the evidence beyond a reasonable doubt that defendant and Fields, at a time and place named, did wilfully ■and feloniously engage in an attempt to' take from the person of Jackson, by violence and force, or by violence and intimidation, his money, goods or other valuable things, and while so engaged Fields did unlawfully and feloniously shoot and kill Jackson, and at the time the shot was fired by Fields and the mortal wound inflicted upon Jackson, the defendant, [126]*126George King, was present, unlawfully and feloniously aiding, abetting .or assisting Fields in the attempt to take from Jackson his money, et cetera, then the defendant, King", would -be guilty of murder in the'first degree, and the jury should so find and state in their verdict.
While it is true that when the crime of murder is established the law declares it to be murder of the second, in the absence of circumstances showing it to have been murder of the first degree, nevertheless when the facts and circumstances in evidence are detailed in an instruction and embody only the elements of murder in the first degree as declared by the statute, it is not improper to state in an instruction that if the jury finds the existence of such facts beyond a reasonable doubt the defendant would be guilty of murder in the first degree, and the jury should so find. The statute makes a homicide committed in the perpetration or attempted perpetration of robbery, murder in the first degree, and the substantial effect of the instruction was to impose the duty upon the jury to ascertain whether the robbery had been committed or attempted, and, if so, whether the homicide had been committed in the perpetration thereof. If both were found in the affirmative, beyond a reasonable doubt, the statute fixes the homicide as murder, of the first degree, and under such circumstances that degree is the only grade of the offense of murder the evidence will support. The rule as stated in 21 Cyc. 1067, is that, “where the absence of an actual preconceived design to', take life does not reduce the grade of the offense, where the homicide was committed in the perpetration of certain other felonies, such as arson, burglary, rape, or robbery, the court need not, in such cases, instruct the jury as to minor included offenses.” Under such circumstances there is but one grade of the offense, that is, murder in the first degree.
By Instruction No. 12, the jury were told, substantially, that if' they found beyond a reasonable doubt that John Field's wilfully, unlawfully, feloniously and with malice aforethought, killed the deceased, and they did not find that such. [127]*127killing uvas with deliberation and premeditation, and they- further found beyond a' reasonable doubt that the defendant, King, so aided and assisted Fields in such killing, “-then, you are instructed that the defendant, George King, is guilty of murder of the second degree, and you should so find and state in your verdict; provided you further find from the evidence that at the time of the killing of the said Felix Jackson, commonly known as Pete Jackson, the said defendant and the said John Fields were not engaged in an attempt to rob the said Felix Jackson, commonly known as Pete Jackson, as defined in Instruction No. io.”
We think the instruction vicious. Its effect was to tell the jury that although the killing of deceased may have been without any deliberation or premeditation whatever, it was, nevertheless, murder in the first degree, unless they further found affirmatively that the homicide was not committed in the execution or attempted execution of robbery. Such is not the law. If the jury believed and found that the. killing was without deliberation and premeditation, but attended with all the other elements of murder, the defendant was entitled to a verdict of murder in the second degree, though the.jury entertained a reasonable doubt, and made no finding as to whether the homicide was or was not perpetrated in an attempt to rob. The principle applicable here is considered, and applied in Pribble v. People, 49 Colo. 210. If-the case had been submitted solely upon the theory that the murder was committed in the perpetration or attempted perpetration of- rob.bery, or if the evidence had been embodied in a bill of exceptions and made a part of the -record, and we could clearly discover therefrom that the homicide had been so committed, it might be held that the instruction was without prejudice.-— Wickham v. People, 41 Colo. 345. Under the first -instance we might presume that all the issues made were presented by the instructions, and inasmuch as homicide committed in the perpetration or attempted perpetration of robbery 'is müfder of the first degree, the defendant had suffered no-injuryj and [128]*128under the second we might know that the defendant was in no wise prejudiced. But this record presents no such facts and conditions. Two theories of murder of the first degree were covered by the instructions. One that there was an actual preconceived design to take the life of the deceased; the other that there was no actual design to kill, but that the homicide was committed in the perpetration of a designated felony. An instruction also covered the theory of murder in the second degree, the jury being told that if they did not find the defendant guilty of murder of the first degree, as explained in the charge, it would be their duty to determine whether he was guilty of murder of the second degree as elsewhere defined in the instructions, and that they could find him guilty of either degree of murder, or not guilty as the evidence warranted. As the evidence was not brought into the record by a bill of exceptions, we must presume that it called for the instructions given. We can not presume that it supported only the theory of murder in the first degree committed in the perpetration, or attempted perpetration of robbery, when the court not only instructed upon that theory, but upon the theory of an actual preconceived design to take the life of the party killed, and also upon the theory of murder in the second degree. On the contrary, the controlling presumption must be that the instructions given presented only the issues involved. — Garver v. Garver, 52 Colo. 227; 121 Pac. 165. The instruction can not be applied, as a correct proposition of law, to any conceivable state of facts consistent with the record, and is governed by the rule stated in Garver v. Garver, supra, where, on page 167, we said: “While it is true, as claimed by defendant in error, if the evidence be not preserved by bill of exceptions, an instruction, erroneous as an abstract' proposition of law, but which, as applied to a particular state of facts, may be correct, will not necessarily require the reversal of a case; nevertheless a contrary rule exists, and must be applied where the instruction is clea'rly erroneous arid could not be applied as a correct proposition of law to any conceivable state of facts.”
[129]*129In Murray v. Johnson, 45 Iowa 57, 58, the rule is. recognized and applied in the following language: “The errors assigned relate solely to the instructions given and refused, and it is objected by the appellee that no part of the evidence is properly before us, and that, therefore, we cannot pass upon the pertinency of the instructions or determine they are erroneous. This does not necessarily follow, for if under no possible view that can be taken do the instructions embody correct propositions of law when applied to the issues presented by the pleadings, and if, on the contrary, they are clearly erroneous, then we not only have the power but it is our duty to pass upon and determine the questions presented.”
And in Downing v. State, 10 Wyo. 373, 377, after stating that it has been repeatedly held that when the' evidence is not in the record, a cause will not be reversed for giving to the jury an instruction which would be correct under any evidence that could have been admitted under the issues in the cause, the court says: “It is held, however, that if the instructions are in themselves radically wrong under any state of facts that could have been proven under the issues in the cause, and direct the minds of jury to an improper basis on which to place their verdict, the cause will be reversed, though the evidence is not in the record.”
Every presumption in favor of the correctness of a ruling ■of the trial court is indulged by this court, and unless the record affirmatively discloses an error of which complaint is made, based upon the entire record, the judgment will be affirmed. But here the record affirmatively discloses prejudicial error under the issues in the cause as made by the pleadings and submitted to the jury. This is essentially true, because the evidence is no part of the record until made such by bill of exceptions, and no law makes it incumbent upon the losing party to bring the evidence into the record. So upon the whole record it appears affirmátively that prejudicial error was committed, and the substantial rights of the defendant disre[130]*130garded. The judgment is, therefore, reversed, and the cause remanded for a new trial.
Judgment Reversed and Remanded.
Decision en banc.
Mr. Justice Musser specially concurs.
Mr. Justice Gabbert and Mr. Justice Garrigues dissent.
Chief Justice Campbell not participating.