Mr. Justice Teller
delivered the opinion of the court.
Harry McAndrews, hereinafter referred to as defendant, was tried for the murder of one Keim, hereinafter designated by name, or as deceased, and found guilty of murder in the second degree. He brings the record here on error for review.
The essential facts are that Keim and McAndrews, on the evening of Sunday, November 21, 1920, were driving in the same direction across the Twentieth Street viaduct, in the city of Denver. The defendant, in a truck, passed the car in which the deceased was driving, and shortly thereafter collided with another automobile. Deceased stopped his car in the immediate vicinity of the accident, gave his name to the owner of the damaged car, and offered himself as a witness in case needed. This precipitated an altercation between himself and McAndrews. The latter is a vigorous man, of robust health, about twenty-five years old, weighing about one hundred and ninety-five pounds.
It appears that the defendant struck Keim with his fist in the face, knocking him down on one knee. According to some of the witnesses, this blow was followed up by other blows while Keim was retreating. Where these other blows struck Keim, or what their effect was, does not appear. __ Later after deceased had returned to his own car, McAndrews- attempted to drag him out by the leg, evidently intending further punishment.
[544]*544On the Tuesday following the altercation Keim died, and an autopsy showed that his skull had been fractured at its base, at the back of the head. McAndrews and Keim were total strangers.
To make the killing murder, it must have been perpe- ■ trated with malice. Ordinarily,a blow with the fist does not imply malice, an intent to kill.
In Murphy v. People, 9 Colo. 435, 13 Pac. 528, this court quotes with approval from Commonwealth v. Fox, 7 Gray, (Mass.) 585, as follows:
“If, therefore, death should ensue from an attack made with the hands and feet only, on a person of mature years, and in full health and strength, the law would not imply malice, because, ordinarily, death would not be caused by the use of such means. But the inference would be quite different if the same assault and battery were committed on an infant of tender years, or upon a person enfeebled by old’age or worn out with disease.”
In the case above mentioned this court pointed out, as bearing upon the question of malice, that the assault was there made upon one physically weak and diseased, and known to the defendant so to be.
A recent case on this subject is People v. Crenshaw, 298 Ill. 412, 131 N. E. 576, 15 A. L. R. 671, wherein the facts are strangely similar to those of this case, and the law announced, therefore, peculiarly applicable. Death was the result of a blow struck by defendant with his fist only. He was found guilty of murder. The facts were in substance that defendant struck the deceased after a quarrel, during which defendant asserted to deceased that for two cents he, defendant, would kill him then and there. The court, in discussing the law applicable to the facts, said:
“The circumstances which distinguish murder from manslaughter have been passed upon by this court in many cases. Malice necessary to constitute a killing murder is presumed where the act is deliberate and is likely to be attended with dangerous or fatal consequences. (Citing authorities.) Death or great bodily harm must-be the rea[545]*545sonable or probable consequence of the act to constitute murder. (Citing authorities.) The striking of a blow with the fist on the side of the face or head is not likely to be attended with dangerous or. fatal consequences, and no inference of an intent to kill is warranted from the circumstances disclosed by the proof in this case.”
The court recognized, however, that there might be circumstances surrounding such a homicide from which an inference of malice would be proper.
From these considerations it appears clearly that the important matter for the jury to determine was whether, under all the circumstances of the cáse, the defendant was actuated by malice, in law; that is, did he seek to take the life of Keim. This being so, it was of the utmost importance that the jury be fully and properly instructed upon, that phase of the case.
Objection is made to Instruction No. 4-, and the giving of it is the principal error argued in this case. It laid dówn as the rule governing on a question of .malice, or intent to kill, the following:
“The court charges you that, if you believe from the evidence, beyond a reasonable doubt, that the defendant assaulted and unlawfully struck the said W. G. Keim upon a vital part of his body with great Torce and violence, and that such striking was, on account of the extreme age and debility of said V/. G. Keim, and on account of its force, violence and aim, an act which in its consequences would naturally and probably destroy the life of said W. G. Keim, and did in fact occasion his death, then you may infer that the defendant was actuated by malice in committing such act, without further proofs, for malice may be implied when a person without any considerable provocation does an act naturally tending to destroy life. The Court does not say that you must draw the inference of malice from such conduct. The responsibility is yours to determine such malice on the consideration of the evidence and the circumstances of the case, and if you are fully satisfied from the evidence beyond a reasonable doubt that the de[546]*546fendant assaulted, and unlawfully, wilfully and maliciously struck, bruised and wounded the said W. G. Keim so that he died in consequence thereof, and that such striking was inflicted by the defendant upon the vital parts of the said W. G. Keim’s body, in such a manner and with such force, as that the death of the said W. G. Keim was occasioned thereby, then you are justified in presuming an intent to kill on the part of the defendant, on the principle that a man is presumed to intend the natural and probable consequences of his own voluntary act; and if you are thus satisfied from the evidence, beyond a reasonable doubt, of such wilful and malicious act, with intent to kill the said W. G. Keim, by the defendant by the means aforesaid, and that such act did thus occasion his death, then you should find the defendant guilty of murder in the second degree, as charged in the indictment; but you should not find the defendant guilty of murder in the first degree under such circumstances, unless you should be satisfied further from the evidence beyond a reasonable doubt, that such killing was wilful, deliberate and premeditated on the part of the defendant.”
The objection is that the instruction assumes matters not in evidence. The testimony showed that the deceased had always been well, never had serious sickness. His son said he was fifty-eight years old. He weighed from two hundred to two hundred ten pounds. The reference, then, to his extreme age and debilitated condition, is wholly without evidence to support it. Indeed, it is directly contrary to the facts as shown in evidence.
That jurors give great weight to’every remark by a trial judge is common knowledge, and it has frequently been commented upon in reported decisions.
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Mr. Justice Teller
delivered the opinion of the court.
Harry McAndrews, hereinafter referred to as defendant, was tried for the murder of one Keim, hereinafter designated by name, or as deceased, and found guilty of murder in the second degree. He brings the record here on error for review.
The essential facts are that Keim and McAndrews, on the evening of Sunday, November 21, 1920, were driving in the same direction across the Twentieth Street viaduct, in the city of Denver. The defendant, in a truck, passed the car in which the deceased was driving, and shortly thereafter collided with another automobile. Deceased stopped his car in the immediate vicinity of the accident, gave his name to the owner of the damaged car, and offered himself as a witness in case needed. This precipitated an altercation between himself and McAndrews. The latter is a vigorous man, of robust health, about twenty-five years old, weighing about one hundred and ninety-five pounds.
It appears that the defendant struck Keim with his fist in the face, knocking him down on one knee. According to some of the witnesses, this blow was followed up by other blows while Keim was retreating. Where these other blows struck Keim, or what their effect was, does not appear. __ Later after deceased had returned to his own car, McAndrews- attempted to drag him out by the leg, evidently intending further punishment.
[544]*544On the Tuesday following the altercation Keim died, and an autopsy showed that his skull had been fractured at its base, at the back of the head. McAndrews and Keim were total strangers.
To make the killing murder, it must have been perpe- ■ trated with malice. Ordinarily,a blow with the fist does not imply malice, an intent to kill.
In Murphy v. People, 9 Colo. 435, 13 Pac. 528, this court quotes with approval from Commonwealth v. Fox, 7 Gray, (Mass.) 585, as follows:
“If, therefore, death should ensue from an attack made with the hands and feet only, on a person of mature years, and in full health and strength, the law would not imply malice, because, ordinarily, death would not be caused by the use of such means. But the inference would be quite different if the same assault and battery were committed on an infant of tender years, or upon a person enfeebled by old’age or worn out with disease.”
In the case above mentioned this court pointed out, as bearing upon the question of malice, that the assault was there made upon one physically weak and diseased, and known to the defendant so to be.
A recent case on this subject is People v. Crenshaw, 298 Ill. 412, 131 N. E. 576, 15 A. L. R. 671, wherein the facts are strangely similar to those of this case, and the law announced, therefore, peculiarly applicable. Death was the result of a blow struck by defendant with his fist only. He was found guilty of murder. The facts were in substance that defendant struck the deceased after a quarrel, during which defendant asserted to deceased that for two cents he, defendant, would kill him then and there. The court, in discussing the law applicable to the facts, said:
“The circumstances which distinguish murder from manslaughter have been passed upon by this court in many cases. Malice necessary to constitute a killing murder is presumed where the act is deliberate and is likely to be attended with dangerous or fatal consequences. (Citing authorities.) Death or great bodily harm must-be the rea[545]*545sonable or probable consequence of the act to constitute murder. (Citing authorities.) The striking of a blow with the fist on the side of the face or head is not likely to be attended with dangerous or. fatal consequences, and no inference of an intent to kill is warranted from the circumstances disclosed by the proof in this case.”
The court recognized, however, that there might be circumstances surrounding such a homicide from which an inference of malice would be proper.
From these considerations it appears clearly that the important matter for the jury to determine was whether, under all the circumstances of the cáse, the defendant was actuated by malice, in law; that is, did he seek to take the life of Keim. This being so, it was of the utmost importance that the jury be fully and properly instructed upon, that phase of the case.
Objection is made to Instruction No. 4-, and the giving of it is the principal error argued in this case. It laid dówn as the rule governing on a question of .malice, or intent to kill, the following:
“The court charges you that, if you believe from the evidence, beyond a reasonable doubt, that the defendant assaulted and unlawfully struck the said W. G. Keim upon a vital part of his body with great Torce and violence, and that such striking was, on account of the extreme age and debility of said V/. G. Keim, and on account of its force, violence and aim, an act which in its consequences would naturally and probably destroy the life of said W. G. Keim, and did in fact occasion his death, then you may infer that the defendant was actuated by malice in committing such act, without further proofs, for malice may be implied when a person without any considerable provocation does an act naturally tending to destroy life. The Court does not say that you must draw the inference of malice from such conduct. The responsibility is yours to determine such malice on the consideration of the evidence and the circumstances of the case, and if you are fully satisfied from the evidence beyond a reasonable doubt that the de[546]*546fendant assaulted, and unlawfully, wilfully and maliciously struck, bruised and wounded the said W. G. Keim so that he died in consequence thereof, and that such striking was inflicted by the defendant upon the vital parts of the said W. G. Keim’s body, in such a manner and with such force, as that the death of the said W. G. Keim was occasioned thereby, then you are justified in presuming an intent to kill on the part of the defendant, on the principle that a man is presumed to intend the natural and probable consequences of his own voluntary act; and if you are thus satisfied from the evidence, beyond a reasonable doubt, of such wilful and malicious act, with intent to kill the said W. G. Keim, by the defendant by the means aforesaid, and that such act did thus occasion his death, then you should find the defendant guilty of murder in the second degree, as charged in the indictment; but you should not find the defendant guilty of murder in the first degree under such circumstances, unless you should be satisfied further from the evidence beyond a reasonable doubt, that such killing was wilful, deliberate and premeditated on the part of the defendant.”
The objection is that the instruction assumes matters not in evidence. The testimony showed that the deceased had always been well, never had serious sickness. His son said he was fifty-eight years old. He weighed from two hundred to two hundred ten pounds. The reference, then, to his extreme age and debilitated condition, is wholly without evidence to support it. Indeed, it is directly contrary to the facts as shown in evidence.
That jurors give great weight to’every remark by a trial judge is common knowledge, and it has frequently been commented upon in reported decisions. When, then, this instruction was given, it was almost certain to produce in the minds of the jurors an impression that the court regarded the evidence as showing extreme age and debility on the part of the deceased. A juror would naturally conclude that he had overlooked some testimony, and would accept the court’s statement as in accord with the facts.
[547]*547In Coors v. Brock, 44 Colo. 80, 96 Pac. 963, this court cites with approval the following from Fisk v. Greeley Electric Light Co., 3 Colo. App. 319, 33 Pac. 70:
“The instructions should in all cases be based upon the evidence, and an instruction, no. matter how correct the principle which it may announce, that impliedly assumes the existence of evidence which was not given, is erroneous. It is calculated to bewilder and mislead the jury by producing the impression that in the mind of the court, some such - state of facts as the instruction supposes, may be inferred from the evidence given, or concealed within it. The authorities upon this proposition are numerous and uniform.”
See also, Johnson v. The People, 197 Ill. 48, 64 N. E. 286.
There is a further objection to the instruction in that it assumes that the blow was delivered with great force and violence upon a vital part of Keim’s body. The only evidence as to the force of the blow is found in the fact that it caused Keim to fall on one knee. There is no evidence to justify the use of the word “vital,” and as there was no evidence as to what part of the body would be vital under a blow from the fist, the jury were likely to understand that the court considered that a blow on the cheek was upon a vital part. This is made more important by the repetition in this instruction of the words “vital parts.” The jury were told that if they were satisfied that defendant struck, bruised and wounded Keim, “so that he died in consequence thereof, and that such striking was inflicted by the defendant upon the vital parts of said W. G, Keim’s body, in such manner and with such force, as that the death of said W. G. Keim was occasibned thereby, then you are justified in presuming an intent to kill on the part of the defendant, on the principle that a man is presumed to intend the natural and probable consequences of his own voluntáry act.”
By this instruction the jury was in effect told that it could imply malice from the act, and the result. Thereunder, any assault with the fist which results in death, [548]*548however unexpected and unintended, might be held to constitute murder.
It is in conflict with the principle upon which it is alleged to be based, i. e. that one is presumed to intend the natural consequences of his act; because all human experience goes to show that death does not ordinarily result from a blow with the fist.
It charges, the defendant with knowledge of the special physical condition, whatever it was, that caused death to follow in this case from an act which does not ordinarily produce that result. Defendant must be judged as to his mental condition, by the facts as they naturally appeared to him at the time of the assault.
This is held in Murphy v. People, supra, where the following is quoted with approval from the Massachusetts case:
“In the present case, therefore, if the evidence satisfies the jury that the prisoner, at the time he committed the assault and battery on the deceased, knew, or had reasonable cause to believe, that she was sick and suffering from disease, and was thereby put in such a weak and feeble condition that his attack would endanger her life, or inflict on her great bodily harm, or hasten her death, it would justify the jury in finding implied malice, and convicting the prisoner of murder. But if he was not aware of her sickness and had no reason to suppose that his acts would do her material injury, or any harm beyond that which would be occasioned by similar acts to a person in health, there would be no sufficient evidence of implied malice.”
The instruction is supported by no authority, and is in conflict with the great weight of decisions which hold that malice is implied only when the homicide is committed by the use of a dangerous weapon, or instrument, in such a manner as naturally and probably to cause death.
That there may be cases in which malice may be implied, where the homicide was committed by means not ordinarily likely to produce death, has already been indicated. It is a question for the jury, to be determined under proper in[549]*549structions as to the law, and with the facts in evidence alone as the basis of the finding..
To affirm the judgment would be to announce a rule of law in conflict with the overwhelming weight of authority, and establish a principle certain to lead to grave injustice!
The judgment is reversed and the cause remanded for further proceedings in harmony with the views above expressed.
Mr. Justice Denison and Mr. Justice Burke dissent.
Mr. Chief Justice Scott and Mr. Justice Campbell not participating.