The opinion of the court was delivered by
Barrett, J.
Whether the statement of the respondent, which the government was permitted to prove by the witness Slayton, was made under and by reason of promise of favor that induced the respondent to make it, was a question addressed to the court; and the evidence bearing on that question was addressed to the court. The finding of the court against the prisoner upon the evidence, and the admission of the testimony showing the statement, was not error in law, unless such finding was unwarranted by the evidence bearing on the alleged promise and inducement, as the result of which, it is claimed that the statement, or confession, as it is called, was made.
The only evidence bearing on that subject, was the testimony given by the witness on his direct examination by the prisoner’s counsel, and by the presiding judge. Did the evidence thus given show, that said statement was caused to be made by such promise of favor, or such representation of benefit to the respondent as would render it inadmissible ?
That testimony of Slayton does not show, that the respondent was asked or advised about telling anything in relation to himself, as connected with the murder, or with the murdered man, or his wife; but only in relation to Chester.
It does show that what Slayton was seeking to elicit, was in relation to Chester ; and it was as to that, that he was saying to the prisoner, it would be better for him to tell; and it was as to [44]*44thdt, that the prisoner understood Slayton to be asking. This is evinced by the reply he made, viz., that he should “ never swear any murder against the Carr breed.” Moreover, the evidence does not plainly show, that, in saying what he did, the prisoner understood himself, as making any confession, or stating anything that would make it better for himself in his then condition, having reference to the homicide.
What he said to Slayton, showed to Slayton, that he was casting the blame on Chester ; not confessing, or designing to confess, or to say anything that would connect himself with the act, or crime of killing. So the case falls outside of the propositions of the law, and of the cases which exclude confessions or admissions, induced by promise and hope of favor and benefit. Inasmuch as any promise of favor, was on the score of his telling what he knew about Chester’s connection with the matter, and not of his own, the idea of a confession or admission in the sense of the law, was not involved. Confession or admission, in that sense, means something, to the effect, that the party himself had some criminal, or questionable relation to the alleged crime. This is shown by all the books and cases in which it is treated.'
We are not disposed to disturb, or question what was held in The State v. Walker, cited in the argument. This case, in what occurred between the witness and the prisoner, is at contrast, rather than in analogy with that.
The cross-examination that ensued, after the witness had testified to the prisoner’s statement, did not bear on the legal propriety of thus admitting him to testify. That cross-examination bore only upon the credit and weight to be given by the jury, to his testimony, as to that statement. Without criticism of the manner of the examination and cross-examination of the witness in the prisoner’s behalf, it occurs to remark, especially in view of the examination by the presiding judge, that courts are interested to know what witnesses wish, and mean to be understood by what they testify, and when that is discovered, application and effect are given to their testimony, according to their meaning, however much they may have become involved and obscure, in the course of the examination.
[45]*45II. Exception to the charge. The evidence was all before the jury; and it was for them to find from it, whether the killing was by the respondent; and if so, whether the killing was murder, and if murder, whether it was in the first or the second degree. The only material evidence and facts reported to this court on the subject of the degree, are, that respondent and the deceased went together to the forest, where the dead body was found, in an unfrequented place in the forest, with no one present except the parties to the affray ; that the deceased was first wounded by a shot from respondent’s shot gun, in the back of the head, neck and right shoulder; then by a bullet from his revolver, entering the brain, near the right ear; then three shots from the same revolver, after death, entering the chest and vital organs.
Did this tend to show, or to countenance the .conjecture, that the intention to kill, “was formed only a moment before ” the act of killing ? If not, then it was the duty of the court, not to charge as requested. And we think it did not within any legitimate limits, to.be assigned to the period of time indicated by the word, “ moment,” as used in the request. Of course, unless that expression indicated a period of time, that, of itself, would distinguish between murder in the first and second degrees, the request could not be complied with in the terms, in which it was made ; and the court would have either to flatly disregard it, on the one hand, or explain to the jury, on the other, the relation of the state of mind to the fatal act, that would make the act of the one degree, or of the other. That expression, .“ formed only a moment before,” would not mark and express the distinction in question. So the court proceeded to state, and explain to the jury the law, as applicable to the case in hand, as represented by the evidence, constituting the matter to be considered and decided by the jury.
In State v. Tatro, 50 Vt. 483, the subject of the statute, as to murder in the different degrees, was examined and considered; and as a result, it was announced, that “ the statute has in no degree altered the common law definition of murder. The killing a human being by poison, or lying in wait, or purposely using a deadly weapon to that end, is murder in the first degree ; and the purpose and intent must be determined by the circumstances that [46]*46surround each case.” The charge was a practical application of this doctrine to the case in hand. That application we regard as legitimate and fully warranted by the soundest reason, and by authority. A case, cited in 2 Whart. Crim. Law, s. 1085, holds, that what premeditation meant, “is, that the design must be formed before the act, by which the effect is produced, is performed, though such premeditation may be, but for a moment.” In an early case, in Pennsylvania, 4 Dal. 145, upon full consideration, the true view of this subject was ably developed by Ch. J. McKean. In the course of that decision it is said, “ But.letitbe supposed that a man, without uttering a word, should strike another on the head with an axe, it must, on every principle, by which we can judge of human actions, be judged a premeditated violence.” In Commonwealth v. Daley, 4 Penn. Law Jour. 156, cited, 2 Whart. s. 1114, it was said, “ It is true the act says the killing must be wilful, deliberate and premeditated. But every premeditated act is, of course, a wilful one ; and deliberation and premeditation simply mean that the act was done with reflection, and conceived beforehand. No specific length of time is required for such deliberation. It would be a most difficult task for human wit to furnish any safe standard in this particular. Every case must rest on its own circumstances.
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The opinion of the court was delivered by
Barrett, J.
Whether the statement of the respondent, which the government was permitted to prove by the witness Slayton, was made under and by reason of promise of favor that induced the respondent to make it, was a question addressed to the court; and the evidence bearing on that question was addressed to the court. The finding of the court against the prisoner upon the evidence, and the admission of the testimony showing the statement, was not error in law, unless such finding was unwarranted by the evidence bearing on the alleged promise and inducement, as the result of which, it is claimed that the statement, or confession, as it is called, was made.
The only evidence bearing on that subject, was the testimony given by the witness on his direct examination by the prisoner’s counsel, and by the presiding judge. Did the evidence thus given show, that said statement was caused to be made by such promise of favor, or such representation of benefit to the respondent as would render it inadmissible ?
That testimony of Slayton does not show, that the respondent was asked or advised about telling anything in relation to himself, as connected with the murder, or with the murdered man, or his wife; but only in relation to Chester.
It does show that what Slayton was seeking to elicit, was in relation to Chester ; and it was as to that, that he was saying to the prisoner, it would be better for him to tell; and it was as to [44]*44thdt, that the prisoner understood Slayton to be asking. This is evinced by the reply he made, viz., that he should “ never swear any murder against the Carr breed.” Moreover, the evidence does not plainly show, that, in saying what he did, the prisoner understood himself, as making any confession, or stating anything that would make it better for himself in his then condition, having reference to the homicide.
What he said to Slayton, showed to Slayton, that he was casting the blame on Chester ; not confessing, or designing to confess, or to say anything that would connect himself with the act, or crime of killing. So the case falls outside of the propositions of the law, and of the cases which exclude confessions or admissions, induced by promise and hope of favor and benefit. Inasmuch as any promise of favor, was on the score of his telling what he knew about Chester’s connection with the matter, and not of his own, the idea of a confession or admission in the sense of the law, was not involved. Confession or admission, in that sense, means something, to the effect, that the party himself had some criminal, or questionable relation to the alleged crime. This is shown by all the books and cases in which it is treated.'
We are not disposed to disturb, or question what was held in The State v. Walker, cited in the argument. This case, in what occurred between the witness and the prisoner, is at contrast, rather than in analogy with that.
The cross-examination that ensued, after the witness had testified to the prisoner’s statement, did not bear on the legal propriety of thus admitting him to testify. That cross-examination bore only upon the credit and weight to be given by the jury, to his testimony, as to that statement. Without criticism of the manner of the examination and cross-examination of the witness in the prisoner’s behalf, it occurs to remark, especially in view of the examination by the presiding judge, that courts are interested to know what witnesses wish, and mean to be understood by what they testify, and when that is discovered, application and effect are given to their testimony, according to their meaning, however much they may have become involved and obscure, in the course of the examination.
[45]*45II. Exception to the charge. The evidence was all before the jury; and it was for them to find from it, whether the killing was by the respondent; and if so, whether the killing was murder, and if murder, whether it was in the first or the second degree. The only material evidence and facts reported to this court on the subject of the degree, are, that respondent and the deceased went together to the forest, where the dead body was found, in an unfrequented place in the forest, with no one present except the parties to the affray ; that the deceased was first wounded by a shot from respondent’s shot gun, in the back of the head, neck and right shoulder; then by a bullet from his revolver, entering the brain, near the right ear; then three shots from the same revolver, after death, entering the chest and vital organs.
Did this tend to show, or to countenance the .conjecture, that the intention to kill, “was formed only a moment before ” the act of killing ? If not, then it was the duty of the court, not to charge as requested. And we think it did not within any legitimate limits, to.be assigned to the period of time indicated by the word, “ moment,” as used in the request. Of course, unless that expression indicated a period of time, that, of itself, would distinguish between murder in the first and second degrees, the request could not be complied with in the terms, in which it was made ; and the court would have either to flatly disregard it, on the one hand, or explain to the jury, on the other, the relation of the state of mind to the fatal act, that would make the act of the one degree, or of the other. That expression, .“ formed only a moment before,” would not mark and express the distinction in question. So the court proceeded to state, and explain to the jury the law, as applicable to the case in hand, as represented by the evidence, constituting the matter to be considered and decided by the jury.
In State v. Tatro, 50 Vt. 483, the subject of the statute, as to murder in the different degrees, was examined and considered; and as a result, it was announced, that “ the statute has in no degree altered the common law definition of murder. The killing a human being by poison, or lying in wait, or purposely using a deadly weapon to that end, is murder in the first degree ; and the purpose and intent must be determined by the circumstances that [46]*46surround each case.” The charge was a practical application of this doctrine to the case in hand. That application we regard as legitimate and fully warranted by the soundest reason, and by authority. A case, cited in 2 Whart. Crim. Law, s. 1085, holds, that what premeditation meant, “is, that the design must be formed before the act, by which the effect is produced, is performed, though such premeditation may be, but for a moment.” In an early case, in Pennsylvania, 4 Dal. 145, upon full consideration, the true view of this subject was ably developed by Ch. J. McKean. In the course of that decision it is said, “ But.letitbe supposed that a man, without uttering a word, should strike another on the head with an axe, it must, on every principle, by which we can judge of human actions, be judged a premeditated violence.” In Commonwealth v. Daley, 4 Penn. Law Jour. 156, cited, 2 Whart. s. 1114, it was said, “ It is true the act says the killing must be wilful, deliberate and premeditated. But every premeditated act is, of course, a wilful one ; and deliberation and premeditation simply mean that the act was done with reflection, and conceived beforehand. No specific length of time is required for such deliberation. It would be a most difficult task for human wit to furnish any safe standard in this particular. Every case must rest on its own circumstances. The law, reason and common sense unite, in declaring, that an apparently instantaneous act may be accompanied with such circumstances as to leave no doubt of its being the result of premeditation.”
The statute names several modes of killing, that would make the killing murder in the first degree ; and then says, “or by any other kind of wilful, deliberate or premeditated killing,” etc., not defining any mode or means of doing it. Therefore, where the murder is done, not by the specified mode and means that make it murder in the first degree, it is to be determined, whether the killing was wilful, deliberate or premeditated, by whatever mode or means it was done. If it was premeditated, it would be murder in the first degree. That is to say, if the killing was murder, then if it was done with premeditation, it would be in the first degree. That term, “ premeditated,” was not meant to require any particular length of time, that such premeditation [47]*47should have been going on, prior to the fatal act. But if, in fact, it did precede the act, it gave character to the crime. It was meant to distinguish between an act done with murderous intent, with a purpose of mind to kill, and an act done upon sudden impulse, without meditation, or murderous intent.
We think the subject was properly presented by the charge ; and that the full benefit of the statute in its true intent and meaning was accorded to the respondent. The present occasion does not require further pursuit of the subject. The result is, the respondent takes nothing by his exceptions. They are overruled, and judgment and sentence is to be rendered upon the verdict.