McFARLAND, J.
The defendant was convicted of murder in the first degree, and was sentenced to a life imprisonment in the state prison. He appeals from the judgment and from an order denying a new trial. The appellant is a youth, and at the time of the homicide upon which the charge of murder was based he was only eighteen years and some months old. The homicide occurred on a road about a mile and a half from a resort known as the Fresno Hot Springs, at which place there was a hotel, saloon, croquet ground, et cetera. About 9 o’clock in the evening of June 27, 1897, the appellant left said springs in a buggy with a young companion named Tony Loveall, to go to his home, which was about five or six miles distant. At the same time the deceased, Lloyd Duke, also left the springs in a buggy, in which were also two other persons named Smoot and Taylor. All these persons had been together in the saloon at the springs, where something had been said about a bet on a wrestle between the defendant and the deceased, in which the deceased said that he would either wrestle or fight the defendant. Some months before that time the deceased had whipped the appellant at another place. After the parties had started the buggies were brought close together several times, and each had ' passed the other, and there was considerable rough and angry .talk between the parties. Smoot was left at his house, which was a short distance from the springs. At that time the buggy in which the appellant rode was ahead, and, some of the harness being disarranged or broken, the appellant had stopped his buggy and had gone to the side of one of his horses to repair the harness. At this point, which was about one and a half miles from the springs, the deceased and Taylor overtook the appellant, and there is testimony that the deceased in an angry manner asked the appellant and his companion what they were doing, and said, "Stop, you sons of hitches; I will fix you.” The deceased then jumped out of his buggy on the ground, when the appellant, who had returned to his buggy, also jumped to the ground, taking with him a gun which had been in the buggy, and hollered to the deceased, "Stop.” The parties were then very close together, but it was dark and dusty, so that the movements of the deceased and the appellant could not he very distinctly seen. Immediately afterward the appellant fired a shot, which caused the [49]*49death of the deceased. The appellant testified that he thought", the deceased, who was an older and larger man, was about to-attack him, and that he shot in self-defense. The parties were-all boisterous and noisy and seemed to act with a good deal' of recklessness. There was testimony to the effect that the.defendant sought to prevent the deceased from passing him in. his buggy; and there are many other circumstances not necessary to be detailed under the views we take of the case.
The defendant asked the court in writing to give the following instruction: “If you should believe from the evidence that-at the time of the killing the defendant in this case was intoxicated, or under the influence of intoxicating liquors, you may and should take into consideration such fact in determining" the degree of the crime of which the defendant is guilty, if you believe him guilty of any crime.” The court refused to give this instruction and did not give any instruction at all on the subject of intoxication; and the refusal to give this instruction, or any other of a similar character, is one of the main .errors relied on for a reversal. There is no doubt that this instruction was correct, and that appellant was entitled to have it given, unless some special reason appears warranting its refusal. Section 22 of the Penal Code provides that “whenever the actual existence of any particular purpose, motive, or intent is a necessary element to constitute any particular species or degree or crime, the jury may take into consideration the fact that the accused was intoxicated, at the time, in determining the purpose, motive, or intent with which he committed the act”; and it has been repeatedly held that in a trial for murder the jury, in determining whether there-was that “willful, deliberate, and premeditated killing” which, constitutes murder in the first degree, may consider the fact that the accused at the time of the homicide was intoxicated. A few of the cases to this point are the following: People v. Valencia, 21 Cal. 544; People v. King, 27 Cal. 507; People v. Ferris, 55 Cal. 588; People v. Jones, 63 Cal. 168; People v. Bruggy, 93 Cal. 476; People v. Vincent, 95 Cal. 436; People v. Lane, 100 Cal. 379. The attorney general admits that the instruction is upon its face correct, and that it should be given in cases where the facts warrant it, but he claims that in tha [50]*50case at bar there was no sufficient evidence of the intoxication of the appellant at the time of the homicide to make the instruction applicable. But this contention cannot be maintained. There certainly was evidence strongly tending to show that appellant was intoxicated, and sufficient to put the question of his intoxication within the province of the jury. The defendant and Loveall had gone to the said hot springs for the first time on the day of the homicide, about 2 o’clock in the afternoon, and had remained there until about 4 o’clock. During that time they were in the saloon a part of the time, although it does not appear affirmatively that the defendant drank at the bar; but when they left they purchased a bottle of whisky and took it with them into the buggy in which they were riding. They then drove to appellant’s home and to other places, and returned to the springs somewhere between 7 and 8 o’clock in the evening. Shortly before the homicide occurred, and while they were in the buggy, appellant drank the last whisky that was left in the bottle. These facts are not, perhaps, very conclusive evidence that the appellant and Loveall actually drank the whole contents of the bottle, but it was expressly testified to by witnesses that a short time after they returned to the springs appellant was intoxicated. Soon after they had returned to the springs the appellant and Loveall were walking along the road from the croquet ground to the hotel, and two boys named Crump were walking in front of them. A short distance ahead of them on the road were three ladies—Mrs. Motley, Mrs. Gregory, and Mrs. Forsyth, and as the appellant and his companion approached closely to the ladies the latter stepped off the road a few feet into the shadow of a cabin that stood there, to let them pass. Mrs. Motley testified as follows: “We thought the gentlemen were intoxicated; their manner was boisterous and loud, and we stepped in behind the cabin to let them pass”; and again, “We thought they were intoxicated, and we stepped behind a cabin”; and again, “The parties who seemed to be intoxicated were behind, in the rear of the others. They were close enough before we stepped out that we could notice that theywere intoxicated”; and again, “As they were coming Mr. Hill was staggering, but I did not notice Tony, whether he was staggering or not.” Mrs. Forsyth, having testified that the ladies stepped [51]*51out to the cabin, said: “The occasion of our stepping beside that cottage was we wanted to let them pass ahead of us. I thought they were all drunk.” This occurred, according to the testimony of Mrs. Motley, about 8 o’clock, or between 8 and 9.
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McFARLAND, J.
The defendant was convicted of murder in the first degree, and was sentenced to a life imprisonment in the state prison. He appeals from the judgment and from an order denying a new trial. The appellant is a youth, and at the time of the homicide upon which the charge of murder was based he was only eighteen years and some months old. The homicide occurred on a road about a mile and a half from a resort known as the Fresno Hot Springs, at which place there was a hotel, saloon, croquet ground, et cetera. About 9 o’clock in the evening of June 27, 1897, the appellant left said springs in a buggy with a young companion named Tony Loveall, to go to his home, which was about five or six miles distant. At the same time the deceased, Lloyd Duke, also left the springs in a buggy, in which were also two other persons named Smoot and Taylor. All these persons had been together in the saloon at the springs, where something had been said about a bet on a wrestle between the defendant and the deceased, in which the deceased said that he would either wrestle or fight the defendant. Some months before that time the deceased had whipped the appellant at another place. After the parties had started the buggies were brought close together several times, and each had ' passed the other, and there was considerable rough and angry .talk between the parties. Smoot was left at his house, which was a short distance from the springs. At that time the buggy in which the appellant rode was ahead, and, some of the harness being disarranged or broken, the appellant had stopped his buggy and had gone to the side of one of his horses to repair the harness. At this point, which was about one and a half miles from the springs, the deceased and Taylor overtook the appellant, and there is testimony that the deceased in an angry manner asked the appellant and his companion what they were doing, and said, "Stop, you sons of hitches; I will fix you.” The deceased then jumped out of his buggy on the ground, when the appellant, who had returned to his buggy, also jumped to the ground, taking with him a gun which had been in the buggy, and hollered to the deceased, "Stop.” The parties were then very close together, but it was dark and dusty, so that the movements of the deceased and the appellant could not he very distinctly seen. Immediately afterward the appellant fired a shot, which caused the [49]*49death of the deceased. The appellant testified that he thought", the deceased, who was an older and larger man, was about to-attack him, and that he shot in self-defense. The parties were-all boisterous and noisy and seemed to act with a good deal' of recklessness. There was testimony to the effect that the.defendant sought to prevent the deceased from passing him in. his buggy; and there are many other circumstances not necessary to be detailed under the views we take of the case.
The defendant asked the court in writing to give the following instruction: “If you should believe from the evidence that-at the time of the killing the defendant in this case was intoxicated, or under the influence of intoxicating liquors, you may and should take into consideration such fact in determining" the degree of the crime of which the defendant is guilty, if you believe him guilty of any crime.” The court refused to give this instruction and did not give any instruction at all on the subject of intoxication; and the refusal to give this instruction, or any other of a similar character, is one of the main .errors relied on for a reversal. There is no doubt that this instruction was correct, and that appellant was entitled to have it given, unless some special reason appears warranting its refusal. Section 22 of the Penal Code provides that “whenever the actual existence of any particular purpose, motive, or intent is a necessary element to constitute any particular species or degree or crime, the jury may take into consideration the fact that the accused was intoxicated, at the time, in determining the purpose, motive, or intent with which he committed the act”; and it has been repeatedly held that in a trial for murder the jury, in determining whether there-was that “willful, deliberate, and premeditated killing” which, constitutes murder in the first degree, may consider the fact that the accused at the time of the homicide was intoxicated. A few of the cases to this point are the following: People v. Valencia, 21 Cal. 544; People v. King, 27 Cal. 507; People v. Ferris, 55 Cal. 588; People v. Jones, 63 Cal. 168; People v. Bruggy, 93 Cal. 476; People v. Vincent, 95 Cal. 436; People v. Lane, 100 Cal. 379. The attorney general admits that the instruction is upon its face correct, and that it should be given in cases where the facts warrant it, but he claims that in tha [50]*50case at bar there was no sufficient evidence of the intoxication of the appellant at the time of the homicide to make the instruction applicable. But this contention cannot be maintained. There certainly was evidence strongly tending to show that appellant was intoxicated, and sufficient to put the question of his intoxication within the province of the jury. The defendant and Loveall had gone to the said hot springs for the first time on the day of the homicide, about 2 o’clock in the afternoon, and had remained there until about 4 o’clock. During that time they were in the saloon a part of the time, although it does not appear affirmatively that the defendant drank at the bar; but when they left they purchased a bottle of whisky and took it with them into the buggy in which they were riding. They then drove to appellant’s home and to other places, and returned to the springs somewhere between 7 and 8 o’clock in the evening. Shortly before the homicide occurred, and while they were in the buggy, appellant drank the last whisky that was left in the bottle. These facts are not, perhaps, very conclusive evidence that the appellant and Loveall actually drank the whole contents of the bottle, but it was expressly testified to by witnesses that a short time after they returned to the springs appellant was intoxicated. Soon after they had returned to the springs the appellant and Loveall were walking along the road from the croquet ground to the hotel, and two boys named Crump were walking in front of them. A short distance ahead of them on the road were three ladies—Mrs. Motley, Mrs. Gregory, and Mrs. Forsyth, and as the appellant and his companion approached closely to the ladies the latter stepped off the road a few feet into the shadow of a cabin that stood there, to let them pass. Mrs. Motley testified as follows: “We thought the gentlemen were intoxicated; their manner was boisterous and loud, and we stepped in behind the cabin to let them pass”; and again, “We thought they were intoxicated, and we stepped behind a cabin”; and again, “The parties who seemed to be intoxicated were behind, in the rear of the others. They were close enough before we stepped out that we could notice that theywere intoxicated”; and again, “As they were coming Mr. Hill was staggering, but I did not notice Tony, whether he was staggering or not.” Mrs. Forsyth, having testified that the ladies stepped [51]*51out to the cabin, said: “The occasion of our stepping beside that cottage was we wanted to let them pass ahead of us. I thought they were all drunk.” This occurred, according to the testimony of Mrs. Motley, about 8 o’clock, or between 8 and 9. She was not certain how long it was before the appellant and the deceased drove away from the springs in buggies, but she places it from a few minutes to a half hour, although in one part of the testimony she says that it might have been “nearly an hour.” After this the appellant and his companions went immediately to the saloon and there drank more. It does not appear how many drinks they took then at the saloon, although it clearly appears that the defendant took one drink, and there is some evidence that he took two. The parties then all started on the road in their buggies, and before the homicide appellant took the last drink out of the bottle, as before stated. Therefore it certainly cannot be truly said either that there was no evidence,' or that there was only slight evidence, of appellant’s intoxication at the time of the homicide. There was evidence that shortly before. the homicide he actually drank some liquor; there was evidence from which it could be properly inferred that he had drank a great deal of liquor; and there was express testimony of witnesses that within an hour of the homicide he was drunk—which testimony was competent to prove the fact (People v. Monteith, 73 Cal. 3; San Diego etc. Co. v. Neale, 78 Cal. 77), and it was shown that between that time and the time of the homicide he drank at least twice, and perhaps oftener. The facts here are very different from those in People v. Kloss, 115 Cal. 567. In that case the homicide was committed on April 18th, and the only evidence as to the intoxication of the defendant in that case at the time of the homicide was that he was addicted to heavy drinking and that “he had been drinking on April 17th”; and in the opinion of the court it is stated that the evidence “does not show how much or how often he had been drinking on the 17th, or at what hour, or that he had at any time reached the stage of intoxication.” Of course, if a person Mils another under such circumstances that the tilling is neither manslaughter nor excusable or justifiable homicide, he is guilty of murder, although he may have been intoxicated at the time of the homicide; but murder is not neces[52]*52sarily murder in the first degree; in order to be of the first degree the killing must have been “willful, deliberate, and premeditated”; in determining whether or not the killing was so willful, deliberate and premeditated as to constitute murder in the first degree, it is proper for the jury to consider how much his mental condition at the time was affected by intoxication, and, there being an express statutory declaration upon the subject of intoxication, a defendant in a murder case is entitled to have an instruction embracing such statutory declaration given by the court to the jury where there is evidence which makes it applicable; and, for the refusal of the court to give the instruction under discussion the judgment must be reversed and a new trial ordered.
There is not much else necessary to be said for the instruction of the court upon another trial. The appellant asked the court to give a great many instructions which were refused; many of them were correct, but an examination of the record shows, we think, that they were all substantially embraced in other instructions which were given; and therefore we do not see, at present, any prejudicial error committed by refusing said instructions.
The court did not err in overruling appellant’s objections to testimony given by the witnesses Seacord, Motley, and Forsyth, with respect to certain declarations made by the appellant.
It is not necessary to discuss the point made by appellant as to the alleged misconduct of the assistant counsel for the prosecution in his closing argument; such point will probably not arise upon another trial. And as a new trial is to be ordered it is, of course, not necessary to examine that ground of the motion which consists of newly discovered evidence.
The judgment and order appealed from are reversed, and the cause remanded for a new trial.
Henshaw, J., and Temple, J., concurred.