The Chief-Justice
delivered the opinion of the court.
I. The first and third of the errors assigned which are urged here are that the court erred in overruling defendants’ application for leave to withdraw their plea of not guilty and to file a plea, in abatement to the jurisdiction and in overruling the plea. The ground of the plea in abatement is that the court is without jurisdiction because what purports to be an indictment is not such as is required by the Constitution, in that it is there required that “ all prosecutions shall be conducted in the name and by the authority of the State of Florida,” and this indictment does not purport in words to be “ by the authority” of the State.
The indictment commences thus : “ In the name of the State of Florida ; the grand jurors, good and lawful men of Madison county, State of Florida, duly chosen, empanelled and sworn to diligently inquire and true presentment make in and for the body of the county of Madison in the Circuit and State aforesaid * * upon their oaths do present,” &c. It is signed “John F. White, State’s Attorney [948] for the Third Judicial Circuit of the State of Florida, prosecuting attorney for said State.” ■
Thus it appears that the indictment is presented by the grand jurors of Madison county, State of Florida, chosen to inquire for the body of said county in the said Circuit and State, and they have presented the defendants and charged them with the crime of murder, in due form. They make the presentment in the name of the State. The Constitution says all prosecutions shall b& conducted in the name and by the authority of the State. It is not required that the indictment on its face shall say in words that it is “ prosecuted in the name and by the authority ” of the State. It merely directs that the State in its name and by its authority shall prosecute, and that no other name or any other authority shall control the prosecution. It is sufficient that the court shall recognize the State and its authority, and no other party or authority in such prosecutions, and that the proceedings are so conducted and the record show it. The cases cited by counsel for plaintiffs in error (Harriman vs. The State, 2 G. Green, 270, and Lovel vs. State, 45 Ind., 550-1,) sustain this view. In the case of the State vs. Gleason, 12 Fla., 247, 253, the court did not deem it very material that the information should upon its face express the words of the Constitution, but directed it to be so amended out of caution, the information being deemed the process in quo warranto proceedings. The indictment in form purports to be a prosecution in the name of the State, and the attorney of the State prosecutes for the State. The court recognized no other authority than that of the State, and this is sufficient. The plea tendered “ to the jurisdiction ” was therefore properly overruled, and the motion to withdraw the plea of not guilty for the purpose of filing such plea was well refused. In fact the plea proposed was not a plea to the jurisdiction.
[949] II. A motion for leave to withdraw the plea of not guilty and to file a' plea in abatement of the indictment was made upon petition setting forth that in Madison county, where the indictment was found, the County Commissioners were white men and former slave-holders; that there were in said county eight hundred colored men, registered voters, in all respects qualified to serve as jurors ; that the colored voters in said county exceed in number the white voters by five hundred, and yet only thirty-eight colored men were chosen on the list of three hundred persons selected from whom the jurors were to be drawn, and “ that this unjust exclusion of them from the list of persons from whom the jurors were to be drawn as aforesaid was on account of their color and former condition of servitude, and the grand jury which presented said indictment were drawn from said list,” whereby petitioners were practically deprived of rights guaranteed by the Constitution — they being colored men and of the African race and having been slaves.
The petition speaks of u this unjust exclusion ” of colored men as being by reason of their color and former condition of servitude’; but it does not before appear that there had been any unjust exclusion, nor was a plea in proper form tendered, nor had it been previously tendered before or after the change of venue from Madison to Hamilton county. But the general rule js that a plea in abatement should be put in before pleading in bar. (1 Wharton Cr. Law, 359, u.) By pleading not guilty the accused waives matter in abatement. (McQuillan vs. State, 3 Sm. and Mar., 587; 1 Allen, 4; 1 Bish. Cr. Pro., §§123, 756.) It may have been within the discretion of the court to permit the accused to withdraw the plea of not guilty for the pur.pose of pleading in abatement, but such discretion should never be reviewed or set aside. In this case the indict[950] ment was found in Madison county and the accused were arraigned and pleadéd there and then obtained a change of venue. All the witnesses and records to prove the manner of selecting the grand jurors were in that county, and it would have occasioned great delay and expense to try the issue attempted tobe set up after the cause had been sent to Hamilton county. It would have been an abuse of discretion to have granted the motion at that stage, especially asthe accused had counsel present at the time of pleading in bar. The court therefore did not err in refusing the motion to withdraw the plea and for leave to plead in abatement.
. The fourth assignment of error seems to have been alleged under a misapprehension of the ruling of the court. The petition was not stricken out.
Th & fifth error assigned relates to the refusal to remove the cause to the court of the United States. This assigm ment is not insisted upon.
III. The sixth error assigned is the refusal of the court to quash the venire of petit jurors.
The motion to quash was made upon two grounds : 1st. “ Because the venire was not drawn according to law ; and, 2d, because the County Commissioners, in the selection of the list of 800 names at their regular meeting in January, 1881, from which the grand and petit jurors to serve at the Circuit Court were drawn, discriminated against colored men on account of their race, color and previous condition of servitude.”
The accused filed an affid'avit in support of the motion stating on information and belief that there were in the county at least 200 colored men qualified to serve as jurors, and that all of them except six were wilfully excluded from the list by the County Commissioners ; that the whole' voting population was about 1,300, and that the discrimi[951] nation in refusing to place a larger proportion of colored men on the list of 300 was on account of their race, color and previous condition. The State-Attorney filed an affidavit denying specially, on information, the allegations contained in defendants’ affidavit; defendants’ attorney moved to strike out the latter affidavit, which motion was granted so far as to refuse to cousider it as evidence, but retained it so far as to make an issue as to the allegations of the affidavit of the accused.
There was no evidence offered in support of the motion except the affidavit of the accused, which was- general in its allegations and stated nothing upon their own knowledge The facts being put issue or not admitted by the State, it became necessary for the accused to prove their allegations. Not having done so there was no evidence on -which the motion to quash the venire could be granted.
The seventh and eighth assignments . are not insisted upon.
IV. The ninth, seventeenth and eighteenth errors assigned are that the court allowed the State-Attorney more than five peremptory challenges.
Four persons called as jurors were challenged peremptorily by the State after it had so challenged five, and the challenges were allowed by the court. The statute allows challenges as follows : “ In capital cases the prisoner shall have twenty peremptory challenges and the State five.”
Where two are jointly indicted and tried for a capital offence each prisoner is allowed twenty peremptory challenges, but the law does not allow more than five io the State as to both. To allow the State to challenge five for each would in effect give the State ten for each prisoner, because each challenge affects each prisoner alike. Counsel for the Plaintiffs in Error cite several authorities to sustain-this position : Proffatt on Jury Trials, §164; Schoeffler vs. [952] State, 3 Wis., 823; Mahan vs. State, 10 Ohio, 232; State vs. Earle, 24 La. An., 38; Wiggins vs. State, 1 B. J. Lea, Tenn., 738.
We have found no other cases directly in point. It is unnecessary to consider this question further. It is clear that the court erred in allowing more than five peremptory challenges to the State, and an exception having been taken to the action of the court there was material error affecting the rights of the defendants.
Y. The tenth and eleventh errors assigned are .that the court allowed the State-Attorney to ask persons summoned on special venire and called as jurors whether they had been present-at the court during the preceding days, and in sustaining a challenge by the State for cause, it having heen found that they had been present.
It appears that these persons were summoned by virtue of a special venire, issued under the order of the court, directing the sheriff to summon one hundred good and lawful men from the county at large to serve as jurors. The persons referred to were challenged by the State-Attorney for cause, they having boon present in attendance at the court and were therefore considered as bystanders, and not from the county at large. The statute provides for the sum-moiling of jurors “ from^by-standers or from the county at-large.” It evidently refers to persons who have been in attendance upon the sessions of the court as by-standers and to those who have not been so in attendance as from the county at large.
Yery much must in the nature of things be left to the sound discretion of" the Judge who presides at the trial in respect to the excusing of jurors. An arbitrary exercise of this discretion without probable cause could not be sustained, and yet the Judge may have abundant reason to exclude persons from a jury in a given case, where the [953] juror himself would have no ground to ask to be excused, and there may be no valid ground of' challenge. In a ease like the present there is frequently much excitement or interest felt in the community, and .numbers attend at the term of the court out of curiosity, interest, partizanship or excitement, and the particular case is canvassed with more or less of the elements of sympathy or prejudice, or both, leaving impressions and opinions in the minds of listeners. "We can well conclude from the character of the order directing the sheriff to summon jurors from the “ county at large ” instead of “ by-standers ” that the purpose in excluding those who had been in attendance at this term, which was being hold for the trial of this case, was that the Judge and the State-Attorney desired to have upon the jury only men who had not been influenced or impressed by the surroundings, and to exclude .those who are sometimes anxious to get upon juries and frequent the courts for that purpose. In other words, it is evident that the prosecuting attorney- and the Judge desired to obtain an unprejudiced jury. There was, in this view, cause apparent to the Judge for excluding from the jury persons who were included in the class that he had directed should not be summoned for valid reasons.- We .will not here say that there was good ground of challenge of the persons referred to, but we cannot say that the act of discharging them was arbitrary and without cause. See J. D. C. vs. J. F. H., 16 Fla., 555, and cases cited.
VI. The twelfth error assigned is that the court allowed the State-Attorney to withdraw a peremptory challenge and then to challenge for cause, and to interrogate the person as to cause.
We do not find the precise case in the books. Manifestly, however, the matter is somewhat within the discretion of the court, but it should not be permitted unless the person [954] challenged is present so that he may be examined as to cause, or unless it is discovered that he is a person disqualified by law from being a juror. But to allow a peremptory challenge of a person not so disqualified to be withdrawn after the person had absented himself would, in effect, increase the number of peremptory challenges, and should not, in such case, be allowed. If the challenge for cause is not sustained the peremptory challenge must stand.
VII. The thirteenth error assigned is the refusal of the court to permit the counsel for the accused to ask E. P. Jones, called as a juror: “If you should be chosen upon this jury do you not believe that a verdict of acquittal in this case, notwithstanding the evidence might warrant it, would create prejudice against you among your friends knd neighbors ?” and his refusal to permit such counsel to ask William Knight, who was called as a juror: “ From what you have heard of the state of the public mind do you not believe that a verdict of acquittal in this case would create great prejudice against you if you. should be chosen on the jury?” Knight had previously-answered that he had not formed or expressed an opinion as to the guilt or innocence of the accused ; that he had no bias, prejudice or ill-will against the accused,.and that he. felt perfectly free to give a fair and impartial verdict upon the evidence; and his refusal to allow such counsel to ask-John M. McCully, called as a juror: “ If you should be chosen on this jury is not the state of the public mind, in your opinion, such in your community that a verdict of acquittal, notwithstanding the evidence may warrant it, would create a prejudice and social ostracism against you-among your friends and acquaintances?”
The object to be attained by allowing the examination of persons drawn as jurors is to ascertain their qualifications and whether they would be absolutely impartial in their. [955] judgment. From this examination the court may determine whether they should be allowed or not to sit as jurors, and the parties may determine whether they will challenge either from cause or peremptorily ¡ The parties have the right to ascertain the status of the candidate by asking him any pertinent question. We think the questions here propounded were not properly addressed to the person drawn as a juror. He might be inquired of as to whether he was conscious of any circumstances which might influence him in giving a verdict other than upon a fair consideration oí the evidence in the case. But there is no known rule authorizing an inquiry the answer to which might tend to degrade him or produce a prejudice against himself, or ostracism against himself and his family. When a juror takes an oath to try a ease and render a verdict according to the evidence given in court, he falsifies his oath if he gives a verdict from other considerations. This oath is the protection of suitors in respect to the subject of the inquiry. In a capital case the accused has a large number of challenges to be used at discretion for his protection.-
VIII. Th & fourteenth error assigned is that the court erred in not allowing Jesse Thomas, called as a juror, to answer the question proposed to him by. defendants’ counsel: “ Notwithstanding your opposition to capital punishment do you believe if you should be sworn upon this jury you could give a verdict according to the evidence ?” Thomas had stated on his voir dire that he was “ opposed to capital punishment.”
The statute in capital cases disqualifies “ persons (to be jurors) whose opinions are such as to preclude them from finding any defendant guilty of any offence punishable with death.” (Act of 1868, McC.’s Dig., 447, s. 13.) Thomas had not- said his opinions-were such as to prevent» -him from conscientiously finding a verdict of guilty ; he [956] had said only that he was opposed to capital punishment. The question was a proper one, tending to find whether his opposition to capital punishment was such as to disqualify him. He was not disqualified solely by reason of his being opposed to capital punishment, unless such opposition was such as to preclude him from finding a verdict of guilty. We do not find, however, that he was excluded by the court for this reason, and we cannot therefore say that an error was committed prejudicial to the accused. (Burt vs. Panjaud, 99 U. S., 180; Metzger vs. State, 18 Fla.) As before remarked, courts have much discretion in determining the qualifications and fitness of persons to be jurors.
IX. The fifteenth and sixteenth assignments of error are put upon the ground that the court refused to allow certain questions put by counsel for the accused to McCully and Lee, summoned as jurors. The record does not disclose why these persons wTere excluded from the jury, or upon whose challenge or for what reason. It is not therefore apparent whether any error was committed by the ruling. Burt vs. Panjaud.
X. The nineteenth error assigned is the refusal of the court to permit counsel for the accused to ask the State witness (Church) the question : “ Immediately after the difficulty did you notice any marks of violence about or on the person of Savage; if so state the locality and character thereof?”
This ruling of the court was made upon the ground that the question was not in cross-examination of anything brought out by the State, but was competent testimony for defence through their witnesses.
The witness had testified to seeing the deceased and Savage in the room where they met; heard scuffling, saw Savage, on looking round, with his arm around Paterson’s neck, his hand fastened in Paterson’s coat-collar ; went to[957] wards them; saw Savage shoot Paterson with a pistol; after that the parties scuffling, Paterson pushing against Savage, trying to get loose; saw Savage fire again, and during the affair both had moved from one part of the room to another, and James finally shooting at Paterson, who fell, and in the course of the affair Savage partly fell, etc. The testimony of the witness Church up to this point covered some ten or more pages of the record.
The objection and the ruling were based upon the fact that the witness had not testified as to seeing marks of violence on the person of Savage, and .therefore that it was not in the course of cross-examination to ask the question.
It is a well-established rule in the United States that a cross-examination of witnesses is, at the strictest, confined to “ facts and circumstances connected with the matters stated in the direct examination.” 14 Pet., 461; 1 Greenl. Ev., §445.
There is another familiar rule that when a witness testifies to certain facts relating to a transaction in his presence he should testify to the whole of it. Now this witness testified to seeing Paterson and Savage and James and what they did and their position and condition at the time of the affair. It was certainly in the line of the cross-examination to inquire of this witness if he saw anything else, and what else he saw at the time as to the condition of the parties directly concerned in the matter of which he had testified. And it was proper cross-examination, not only for the purpose of proving by him any surrounding, facts other than those testified to, but for the purpose of testing the correctness of the statements already made, and for these objects the cross-examination is not to be confined to what the witness had already stated. He may be inquired of as to all he saw, and all the facts and circumstances connected with the matters already stated, which includes as well the [958] condition of the partios as their acts. Some of their acts and something as to their condition had been stated, and the defendants were entitled by leading questions or otherwise to draw out anything else the witness had observed at the time as to the condition of either of the parties.
The fact that the matter inquired of was afterwards testified to by other witnesses does not affect this question. The defendants were entitled to inquire on cross-examination as to alt the witness saw after he had testified to part of it.
XT. Upon the twentieth error alleged as to the dying declarations ” of Paterson, nothing need be said except that they are always received as evidence, it being first established that the person making them is conscious of approaching death and has no hope of living and the circumstances of the cause of the death are the subjects of the declarations. We examined the legal question in Dixon vs. The State, 13 Florida, 638, and refer to the rule as there stated. We think the testimony before us as to his dying-declarations was proper evidence, as showing the condition of the parties, the encounter, the means of death, the persons engaged and who committed the fatal acts, as though the person making the declarations was a witness before the court. The portions of such declarations to the effect that Paterson had nothing to defend himself with, and that he was “ robbed of (his) life ” are not parts of the res gestae. and should not be called out if it can be avoided. Tf these expressions are testified to, the court will, of course, instruct the jury, if another trial is had, that they are not evidence. So far as the declarations related to facts occurring at the time of the encounter, the weapons used and the parties using them, what was said and what was done, they are competent, and the court should as far as possible confine the testimony to these matters as constituting the res gestae.
[959] XII. The twenty-first error alleged is that the court permitted the witness Florid to answer questions relating to defendant, James, snapping his pistol at the witness. This circumstance occurred at the time of the difficulty and between the shots said to have been fired by the accused at Paterson. The testimony was not objectionable; it showed that James was there, armed with a pistol and endeavored to use it.
The tivcnty-second ground of error assigned, relating to the ruling of the court upon the question by the State Attorney as to whether witness had seen other guns about Madison like those in the hands of the accused, on the day before the killing, is unimporrant, as this testimony does not appear to be material or pertinent to the case.
As to the twenty-third alleged error, referring to the exclusion of testimony to the effect that extreme ill-feeling and prejudice existed among political opponents, cannot be sustained for the same reason. The investigation would be endless and boundless.
The twenty-fourth and twenty-fifth assignments were not insisted upon.
XIII. The twenty-sixth and twenty-seventh errors assigned are that the court erred in the charge to the jury. After charging at length relative to the law of homicide, the Judge concluded with the following propositions:
“ 2. If you believe from the evidence that Paterson, on1 passing unarmed, not having arms exposed to view', where Savage was standing, accused, Savage of perjury and did nothing more, that Savage using strong language in reply immediately sprang upon Paterson and grasped him to his body, until he, Savage, could draw his pistol from his pocket for the purpose of shooting Paterson, and that he did then and there draw his pistol and intentionally shoot Paterson, killing him, the act was not justifiable on the [960] ground of self-defence, but is murder in the first degree, and if James was present, aiding and abetting, he was guilty of the same offence as principal in the second degree.”
“ If you believe from the evidence that Paterson being unarmed on passing Savage unarmed (for the law presumes that they were both unarmed unless they bore them in public view) insulted Savage by using mere words, that Savage retorted by using insulting language, Paterson had no right in law to strike Savage, but if he did with his fist only, Savage had the right to strike back, to repel force by force, and no more, but if he sprang upon Paterson and shot him to death, under the circumstances as stated in the last foregoing proposition, he carried his resistance too far and the act was not justifiable on the ground of lawful self-defence ; it may be manslaughter in the second or third degree, according to the means used, and James, if he was present, aiding and abetting Savage, he is guilty of the same offence as principal in the second degree.
“3. If you believe from the evidence that Paterson had a sudden quarrel with Savage and struck him in the face, under .the circumstances referred to, a severe blow, such a one as must have inflamed the passions into a heat, that the passions of Savage were actually thrown into a heat, so that thei’eby the reason of Savage was for the time overthrown, or his mind so clouded that immediately he drew a weapon, a pistol, and-fired on Paterson, without a design to effect his death and killed him, the offence is manslaughter in the second or third degree; in the second degree if it was done in a cruel and unusual manner; in the third degree if done by a dangerous weapon; and James, if he was present aiding and abetting Savage, they are both guilty of the same offence.”
“ 4. If you believe from the evidence that this blow, [961] this provocation, was not a severe but a slight blow with the fist, and that a dangerous v:eapon was used by Savage, and Paterson thereby immediately killed, these facts create a strong presumption of malice, a wicked intention to do the injury, and rebuts the presufhption that it was done in a heat of passion and without a design to effect death.”
“ 5. If you believe from the' evidence that Paterson, under the circumstances just stated, struck Savage a severe blow calculated ordinarily to inflame his passions into a heat, but that in fact in this case Savage was not in a heat of passion, but acted with deliberation on a grudge or from a wicked and depraved heart, and not from the provocation (the blow) it is not manslaughter, but murder in the first degree; and if James was present, aiding and abetting Savage in the act, he is also guilty of murder in the first degree.”
“ 6. If you believe from the evidence that Savage, without any other cause or excuse than insulting words on the part of Paterson to him, grabbed Paterson deliberately and held him until he, Savage, could draw his pistol for the purpose on his (Savage’s) part to kill Paterson, and that Savage did then and there, while Paterson was in that position, intentionally shoot Paterson, inflicting the mortal wound as alleged, of which Paterson died as alleged, and that Paterson had no pistol in his hands, nor before Savage grabbed, or did any act that indicated a purpose to, draw one, the killing is not justifiable nor excusable, nor manslaughter, but murder in the first degree on the part of Savage, and if you believe from the evidence that Howard E. James was then present aiding and abetting Savage in such killing, by drawing a pistol after the scuffle or encounter commenced, with intent to assist or encourage Savage, then the act of Savage was, in contemplation of law, the act of James, and he is equally guilty with Savage as prin[962] cipal in the second degree of murder in the first degree, and you may find them both guilty.”
Each of these paragraphs was duly excepted to by the accused.
In the paragraph marked “2” we find'language not strictly correct in this: the words “ and intentionally shoot Paterson, killing him,” should under our statute read thus : “And shoot Paterson, intending to kill and did kill him,” etc. This is obvious because the law makes the premeditated intent to kill necessary to constitute murder in the first degree.
In the paragraph marked “ 4,” instead of the words “ rebuts the presumption,” etc., it should read “ tends to rebut the presumption,” etc.
In each of the paragraphs marked 2, 5 and 6 these words are substantially repeated: “And if James was present aiding and abetting he was guilty of the same offence as jrrincipal in the second degree.” In each of the paragraphs last named this instruction is erroneous.
In Chitty’s Criminal Law, Vol. 1, p. 258, we find this language: “ But to constitute a principal in the second degree there must be not only a presence and an aiding and abetting, but a participation in the felonious design, or, at least, the offence must be within the compass of the original intention.” This is the doctrine of the common law. The charge should be in effect that if James was present aiding and abetting Savage, knowing or believing that Savage intended to kill Paterson, or with a “ premeditated design ” to kill Paterson, aided and abetted Savage in his act, he was equally guilty with- Savage.
The reason is that one who is guilty of murder in the first degree must be charged and proved to the satisfaction of the jury to have done the act charged'with a formed design to effect the death, and this is the law as to the princi. [963] pal in the second degree as well as in the first degree. In other respects the law of the case is well formulated in each ot the propositions excepted to.
After the Judge had concluded his charge to the jury-counsel for the accused submitted .the following in writing and requested that the same be given in charge to the jury:
“ In this case the State is required to prove malice, deliberation and premeditation. There should be time and opportunity for deliberate thought, and after the mind eoncieves the thought of taking life the conception should be meditated upon, and a deliberate determination formed to do the act; but it makes no difference how soon after the fatal resolve is carried into execution.”
And at. the same time counsel for the accused submitted the following in writing, and requested' that the same be given in charge to’the jury, to-wit: “ In order to justify a verdict of murder in the first degree it is not enough for the State to show that the defendants, or either of them, during the rencounter in which the fatal wound was given, considered whether he or they would flee from the combat. It must be shown beyond a reasonable doubt that prior to the infliction of the mortal wound, a premeditated, formed design existed in the minds of the prisoners to take the life of the deceased, and that sufficient time elapsed between the-conception of the design to take life and the infliction of the mortal wound for them to meditate and deliberate upon the act of killing.”
The Judge refused to give the instructions so prayed, the last upon the ground that his principal charge substantially covered the whole ground. Reading the whole charge we find it to have been very laboriously prepared, covering, as we believe, the whole law of this case. With the exception of the particulars indicated we have discovered noth[964] ing to criticise in its exposition of the established law of homicide.
In respect to the propositions in the instructions asked for, they had been substantially and correctly given in the body of the charge.
In The People vs. Clark, 7 N. Y., 3 Selden, the court thus lay down the rule: “ If there be sufficient deliberation to form a design to take life, and to put that design into execution by destroying life, there is sufficient deliberation to constitute murder, no matter whether the design be formed at .the instant of striking the fatal blow or whether it be contemplated for months. It is enough that the intention yrecedes the act, although that follows instantly. The law has no favor to extend, either to the rapid or slow execution of such a design.” The statute oí New York is substantially in the language of our statute of 1868, except that in that State there was but one degree of murder at the time the case in B Selden was tried. The question of premeditation is one of fact, like other facts, to be determined by the jury.
In Drum’s case (8 P. F. Smith, 16,) it is said: “ It is true that such is the swiftness of human thought no time is so short in which a wicked man may not form a design to kill, and frame the means of executing his purpose; yet this suddenness is opposed to premeditation, and a jury must be well convinced upon the evidence that there was time to deliberate and premeditate. The law regards, and the jury must find, the actual intent, that is to say, the fully-formed purpose to kill, with so much time for deliberation and premeditation as to convince them that this purpose is not the immediate offspring of rashness and impetuous temper, and that the mind has become fully conscious of its own design. If there be time to frame in the mind fully and consciously the intention to kill, and to [965] select the weapon or means of death, and to think and know beforehand, though the time be short, the use to be made of it, then there is time to delibérate and premeditate.” This was said in the case of a sudden affray, when the circumstances made it a serious question whether the act was premeditated or was the result of sudden and rash resentment. Jones vs. Com., 75 Pa. St., 403, quotes and endorses the foregoing as a fair exposition of the law under the statutes of that State. The law of Pennsylvania reads: “ All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate and premeditated killing, * * * shall be deemed murder in the first degree.” And so we find that upon the precise point under consideration, the question of deliberation., which is a vital element in the crime of murder in the first degree, as defined by the Pennsylvania statute, is con: struéd also in New York, under a statute like ours, that it is enough, that the intention precedes the act, without regard to length of time, if there be time enough to form a design to take life and to put that design into execution.
The language of the instructions prayed is not quite sustained by the authorities. It is'that “ there should be time and opportunity for deliberate- thought, and after the mind conceives the thought of taking life the conception should be meditated upon and a deliberate determination formed to do the act.” There are here three stages of mental progress necessary to be established by the State according to this proposition : the conception of the thought of taking life,, meditation upon the conception and thought, and finally deliberate determination after meditation followed by the execution of the original conception. These mental processes may be metaphysically the correct series necessary for every slayer to experience before being .guilty of murder in the first degree ; but the law imposes, after all, [966] its penalties if the conception, the intention formed and the act, however closely following each other, are proved to exist and are imbued with malice. 61 Mo., 555, per Wagner, J.; 64 Mo., 321-2.
The Judge having given- charges to the point in the language of approved authorities, it was not error to refuse to repeat them in other forms.
XIV. The sentence directs among other things that the Plaintiffs in Error be hanged by the sheriff of Hamilton county on the day to be named in the Executive warrant and within the walls of the jail of such county.
Our statute is like that obtaining in Massachusetts at the time of the Webster case, excepting that it provided for the execution to take place within the walls of a prison of the county in which the conviction was had, or within the enclosed yard of the prison; whereas, under ours, it_is to take place within the walls or enclosure of a jail in the county where such prisoner may be confined. In that case (5 Cush., 407,) the Supreme Court say: “ It is not the duty or the province of the court to fix the time or place ” of the execution. The Governor, under our statute, is to fix the time, and his warrant should issue to and direct that it be executed by the sheriff of the county where such prisoner may, at the time of its issue, be confined, within the walls or enclosure of the jail or prison of such county. The sheriff may, in his discretion, execute it within the walls or enclosure. The sentence is erroneous to the extent indicated above.
The point was not suggested in argument, but for the purpose of settling the question we consider it.
Eor reasons stated, the judgment is reversed, the verdict set aside, and a new trial ordered.