STRAUP, J.
Defendant was convicted of first degree murder, sentenced to life imprisonment, and' appeals. The principal questions relate to the court’s charge.
The defendant is about twenty-seven years of age. At the time of the homicide he was in the employ of the Pinkerton Agency as a detective. He had been married three or four years. For a year or more prior to the homicide, he and his wife had considerable trouble and numerous quarrels, chiefly on account of attentions the defendant claimed other men gave his wife. They roomed at hotels and apartments, separated several times, reunited, and again separated. A day or two before the homicide, the defendant attempted another reconciliation. She refused to longer live with him, and took rooms at a hotel separate and apart from him. On the night of the homicide, he, after midnight, entered his wife’s room, and, as shown by the evidence on behalf of the state, created a disturbance by loud talking, cursing,' and swearing, and flourishing a revolver. Attendants at the hotel rapped on the door and requested him to be quiet. They also telephoned to the police station. A guest of the hotel, who had met the defendant and drank with him in the evening, and who was attracted or disturbed by the noise, went to the door of the room where the defendant and his wife were, heard him swearing and cursing and calling her names, and heard her say, “please don’t point that gun at me.” The guest rapped on the door, told the defendant who he was, and asked him to quiet down. The defendant hesitated in •opening the door, stating that he did not know whether the guest was the person whom he represented himself to be or a “cop,” and threatened to kill the first person who entered the room. He finally opened the door, but at the same time pointed a loaded revolver at the guest, commanding him to [541]*541“throw up” his bauds, .amd bade him enter. The guest did1 so. The defendant had no clothes on, except a small undershirt. The wife, in her night clothes, was in bed. The defendant was agitated, excited, and' under the influence of liquor. The guest succeeded in quieting him, and persuaded him to lay the gun on the dresser. The wife attempted to get it, but the defendant reseized it before she got hold of it. Shortly thereafter the deceased, .a policeman, and two other policemen, entered the room. The deceased walked by the ■guest and toward1 the defendant, amd, addressing him, said, “What is the trouble ?” As further shown by the state, the ■defendant replied: “There is no trouble.” At that, without provocation or warning, the defendant suddenly drew the gun, held by him behind his leg, and shot the deceased, who then was but three or four feet away. The deceased lunged forward, grabbed the gun, and in the struggle both fell to the floor. The other two policemen beat the defendant on the head and face, and disarmed him. The officers testified that while the defendant showed evidence of being somewhat under the influence of liquor, or of recently having drunk intoxicants, he nevertheless well knew what he was doing and understood all that was said to and by him. Five or six hours thereafter the defendant, at the police station, was interviewed by press reporters. To them, upon questions propounded to him, he related his domestic trouble, told them of his wife’s infidelity, their separations and reunions, his .excessive drinking of intoxicants, their final separation, and his wife’s refusal to longer live with him, his infatuation for her, his pleadings and entreaties that she go with him to reside elsewhere, where her environments would be different, his drinking intoxicants all day and all night up to shortly before the homicide, and his resolve to enter his wife’s room, kill her, and then kill himself. He told them that he remembered going to her room, that, in a vague way, he remembered that some sort of a struggle took place there, but that he had mo recollection of shooting the deceased, nor that the gun' was discharged, nor that the policemen had beat and disarmed him, and that he had no knowledge that the deceased [542]*542bad been shot until his wife, shortly before the interviews with the reporters, told him of the occurrence.
The defendant was a witness in his own behalf, and in-detail related his domestic trouble, his mental distress, his excessive drinking of liquors during their trouble, and his lack of all memory of shooting the deceased, substantially as he related those things to the reporters. He further testified on the morning of the day preceding the homicide he drank a bottle of gin, and during the day and night before the-homicide much whisky and other intoxicants, and that just before entering his wife’s room he imagined mad dogs on the street attempting to pursue him, but held back by ropes, and that he fled from them. Several witnesses testified that they saw the defendant drinking much liquor on the afternoon and night before the homicide; that he was drunk, and acted wildly, and talked incoherently. His wife testified that he entered her room very drunk, greatly agitated and excited, and that he fell on the floor and with difficulty arose- and undressed himself; that he crawled on his hands and knees with the gun in his hand, peered under the bed, stared at her, acted wildly, made some disturbance, placed the revolver under the pillow, and, as she attempted to get it, re-seized it and flourished it; and that when the deceased entered the room, and walked toward the defendant, and attempted to take the gun from him-, a struggle ensued, and that the gun was accidentally discharged. She testified that the defendant for some time drank excessively, and she and a physician testified that (about six months prior to the homicide the defendant was in a state of acute delirium tremens and was taken to a hospital. Two physicians, on behalf of the defendant, on hypothetical questions submitted to them, testified that the defendant at the time of the homicide was in a state of delirium tremens or alcoholic insanity, and in their opinion was then irresponsible. A physician, for the state, on a hypothetical question submitted to him by the state, testified that in his opinion- the defendant was not then suffering from such or other mental derangement, and that he was responsible for his acts and conduct; but, on a [543]*543hypothetical question submitted to him by the defense, testified that in his opinion the defendant was suffering from alcoholic insanity and was irresponsible at the time of the homicide.
1 The state, upon the evidence adduced by it, contended that the defendant willfully and deliberately shot the deceased, ••and that he was guilty of first degree murder. There is, of ■course, sufficient evidence to justify such a conclusion and to support the verdict as rendered. On the other hand, the defendant sought to excuse or alleviate the charged homicide on the grounds: (1) That in the deceased’s •attempt to disarm the defendant the gun was accidentally and unintentionally discharged; (2) that at the time of the homicide the defendant, because of his deep intoxication, was incapable of deliberation and premeditation, or of forming or entertaining the design or intent to kill; and (3) because of his mental condition, due to delirium tremens or alcoholic insanity, he was bereft of reason and _ understanding and incapable of comprehending or controlling the act committed by him.
2, 3 In accordance with the first theory, the defendant requested the court to charge: “If the jury believe from the evidence there wias no intentional shooting, and1 that the defendant did not, at the time the shot was fired, point the gun at the deceased, or intend to fire the shot from the pistol that resulted in the death of the deceased, but that the same was accidentally fired while the deceased was attempting to take the gun from the possession of said defendant, then you ■cannot find the defendant guilty. In determining whether or not the. deceased was accidentally shot, you have the right to take into consideration, in determining this fact, the situation of the parties, the condition of the defendant’s mind at the time in question, their relation to each ■other at the time the shot was fired, the position of the defendant at the time with respect to the position of the deceased, and the place where, and the manner in which, the fatal wound was inflicted, and all other- circumstances surrounding the parties at the time the shot was fired.” This [544]*544tbe court refused, by stating tbat it was “given in substance.” There is some evidence to render such a charge applicable. The facts embodied in the request were in substance testified to by the defendant’s wife. Whether her-testimony was true or false was a question for the jury. The-defendant was entitled to a submission of the case on such theory. This the state does not dispute. It contends, however, that the substance of the request was- given. It was. refused by the court, not because of a belief that there was no evidence to render it applicable, but for the reason indorsed on the request, “given in substance.”
The court evidently thought that there was some evidence-calling for a charge on the subject. With that conclusion we-assent. The further inquiry, therefore, is: Was the proposition correctly stated- in the request; and, if so, was it in substance given? The first is not disputed; the second is. What the court charged is that homicide is excusable “when-committed by 'accident and misfortune in doing any lawful act by lawful means with usual and ordinary caution- and without any unlawful intent,” and that “an accident is an event happening without the concurrence of the will of the-person' by whose agency it was caused; it is an event which takes place without one’s direct intention; and when a homicide appears to be excusable, as defined above, the person indicted cannot be convicted of any degree of crime.” Abstractly, the proposition is well stated. But the duty of the-court is not always discharged by merely giving the jury lan abstract and lexical definition of a thing, as was done here. Litigants are entitled to have the court declare the law applicable to the particular facts of the case; to charge concretely, not abstractly. A charge which applies the law to-the facts of the case, and states to the jury the crucial question or questions involved, which they, upon the evidence, must answer, is much more helpful to them, and conduces-far more to a just administration of the law, than mere abstract propositions of law, dissertations on sound theories, or lexical definitions of things,' concerning the application-of which the jury are left in doubt or allowed to make as-[545]*545they might think proper. Wholesome observations on this are made by the Chief Justice in the recent case of Shepherd v. Railroad Co., 41 Utah, 469, 126 Pac. 692. The general and abstract charge as here given applies as well to different facts of a hundred or more cases as to the one in hand. We think the defendant was entitled to a charge substantially as requested, and that it was not given.
4 We need not determine whether the ruling refusing the request and charging as was done was such a prejudice as to call for a reversal, for we think the complaint made of the following charge is more serious and prejudicial. The court charged:
“(20) If you should find that the defendant fired the shot in question, and that, when he did so he was drunk, the fact of his being drunk, if you find it to“be a fact., does mot render the act less criminal, and in that sense it is not available as an excuse; but there is nothing in this to exclude drunkenness as evidence upon the question as to whether the act was deliberate and premeditated. Presumptively, every killing is murder; but, so far as the degree is concerned, no presumption arises from the mere fact of killing, considered separately and apart from the circumstances under which the killing occurred. The question of degree is one of fact, to be determined by the jury from the evidence in the case, and drunkenness, as evidence of a want of premeditation, may properly be considered. Drunkenness neither excuses the offense nor avoids the punishment which the law inflicts, when the character of the offense is ascertained and determined, but evidence of drunkenness is admissible with reference solely to the question of premeditation. In cases of premeditated murder the fact of drunkenness is immaterial. A man who is drunk may still act with premeditation, as well as a sober one, depending upon the degree of intoxication, and may be equally responsible for the consequences of his act. In murder in the first degree, it is necessary to prove the killing was premeditated, which involves, of course, an inquiry into the state of mind under which the [546]*546party committed it, and' in the prosecution of sueb an inquiry bis condition, as drunk or sober, is proper to be considered. The weight and effect to be given to it is a matter for the jury to determine, and it is sufficient for the court to say to the jury that it should be received with caution, 'and carefully examined in connection with all the circumstances and evidence in the case.”
The court also charged the jury that if they, from a deliberation upon the whole of the evidence submitted to them, entertained a reasonable doubt as to whether the defendant at the time of the homicide was suffering from alcoholic insanity or delirium tremens to the extent that he was incapable of distinguishing between right and wrong, and of comprehending the nature and quality of the act committed by him, they should 'acquit him. The jury evidently believed and found that the defendant was not so suffering ■ from such mental derangement, and found that issue against him; and there is evidence to justify such a finding. But in the quoted charge we think the court too much restricted the jury’s consideration of the evidence of the defendant’s drunkenness, and stated the law in that regard rather misleading, conflicting, and to his prejudice. The evidence in respect of the extent of the defendant’s intoxication at the time of the homicide is conflicting. There is, however, considerable evidence to show that he then was drunk, agitated, and excited.
We have a statute (Comp. Laws 1907, sec. 4070) which provides:
“No act oomjmitted by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition. But whenever the actual existence of any particular purpose, motive, or intent is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated ^t the time, in determining the purpose, motive, or intent with which he committed the act.”
[547]*547The charge which the court gave is not as broad as the statute. In one portion of it the court told the jury that drunkenness could be considered in determining “whether the act was deliberate and premeditated;” and in another, “evidence of drunkenness is admissible with reference solely to the question of premeditation;” and then, immediately following this, the jury were told that “in cases of premeditated murder the fact of drunkenness is immaterial,” not that drunkenness is immaterial, if the jury found that the defendant with malice and premeditation committed the homicide, but that in all “cases of premeditated murder the fact of drunkenness is immaterial;” and then the court admonished the jury that in first degree murder it was necessary to prove premeditation, and that that involved the “inquiry into the state of mind” of the defendant, and for that purpose “his condition, as drunk or sober, was proper to be consid'ered.” It is difficult to see just what the jury understood or what idea they got from all this. By some portions of the charge they would understand that they could consider the fact of drunkenness solely upon the question of premeditation. Then they were told that “in cases of premeditated murder the fact of drunkenness is immaterial.” If the jury followed the first direction, they were misled; for that portion of the charge restricted the jury’s consideration of drunkenness more narrowly than the statute, which. provides that the. jury may consider the fact of drunkenness, not “solely to the question of premeditation,” but “in determining the purpose, motive, or intent with which he committed the act,” in cases where the existence of a particular purpose, motive, or intent is a necessary element to constitute a particular species or degree of crime, as is the case in the charged offense.
Independently of a statute, it is- the general rule that, while voluntary intoxication does not excuse crime, and is usually not a defense thereto, yet such condition of the accused at the time of the commission of the offense may be considered in determining the purpose, motive, or intent, where these elements become a material question of inquiry. [548]*548And where one is charged with, the commission of first degree murder, involving a specific intent to commit the crime of homicide, the accused' may show, in order to reduce the degree of the offense, that he was in such a state of voluntary intoxication at the time of the commission of the crime as to be mentally incapable of forming the necessary intent, or of entertaining or forming a design to take life, and as bearing on the existence or nonexistence of malice, and to explain and determine the accused’s conduct with reference to the desiga, purpose, motive, and intent with which the act was committed. (Extended notes to eases in 13 L. R. A. (N. S.) 1024, and 36 L. R. A. 470; 12 Cyc. 172; 21 Cyc. 674, and oases there cited.) This, in effect, is what the statute declares. The charge abridged it, and deprived the defendant of the full benefit of it.
When the court told the jury that “in cases of premeditated murder the fact of drunkenness is immaterial,” the court, if it did not give them a wholly incorrect principle, gave them a charge which is misleading and apparently in direct conflict with other portions of the charge. If by the language used the court meant what it fairly implies, and what the words ordinarily convey, that portion of the charge is erroneous. If, on the other hand, the court meant to express the thought that, though the defendant at the time of the commission of the offense was drunk, yet if the jury believed beyond a reasonable doubt that he was not so drunk as to be incapable of deliberation and premeditation, and of forming or entertaining .as specific intent or design to take life, and that he willfully, deliberately, with malice aforethought, and with the specific intent or design to take the life of the deceased, shot and killed him, the fact of drunkenness was immaterial, then the court did not, by the language referred to, use language which, fairly or reasonably conveys that meaning'. The court here dealt with the subject of the defendant’s voluntary intoxication, and directed the jury the purpose for vfliich it could be considered by them in determining the defendant’s guilt of the charged offense. Again, if by the charge the court meant that drunkenness was imma[549]*549terial, if tbe jury found tbat the defendant committed “premeditated murder,” them such a charge is incongruous; for in determining whether the defendant committed “premeditated murder,” the jury had the right to consider the fact of the defendant’s intoxication in connection with all the other evidence. The jury should not be invited to determine, without considering the fact of drunkenness, whether the accused committed premeditated murder, and after having so determined, and so ascertained the character of the offense, then to consider drunkenness, and regard it as immaterial. As well let a jury determine the defendant’s guilt as charged, and make up their verdict, and then consider his evidence in excuse or mitigation, and disregard it as immaterial, because the verdict is made up.
True, in other portions of the charge the jury were instructed :
“(16) Whenever the actual existence of any particular purpose, motive, or intent is a necessary element to constitute any particular species or degree of 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.”
Here the court left it to the jury to determine whether the existence of a particular purpose, motive, or intent was a necessary element of the charged offense, and then, in paragraph 20, directed them that “in cases of premeditated murder the fact of drunkenness is immaterial,” and1 that “evidence of drunkenness is admissible solely to the question of premeditation.” Thus, when the charged is looked at as a whole, it is conflicting, misleading, and confusing, as to the purpose for which the jury could consider the defendant’s condition of voluntary intoxication, if they found he was in such condition at the time of the homicide.
[550]*5505,6 [549]*549We think the court was also unfortunate in paragraph 20 by charging the jury, in connection with the subject there charged on, that “presumptively every killing is murder.” On a trial for murder, the burden of proving malice and an intent to kill is on the prosecution. That burden does not [550]*550shift, but remains with the prosecution throughout the trial. Of course, it is not essential that the intent and malice be shown by direct evidence. They may be presumed from the fact of the killing, where no attendant and explanatory facts and circumstances are shown; and where the attendant facts and circumstances of the killing are shown, they may be inferred as inferences of fact. There is abundant authority for holding that where the killing is proved, and no accompanying circumstances appear in evidence, the law presumes that the killing was done maliciously. But the law in this country is also about as well settled that, where the attendant facts and circumstances of the killing “are shown in evidence, whether on the part of the prosecution or the accused, the character of the killing is to be determined by considering them, and1 it is then not a matter for presumption which operates in the absence of explanatory evidence, but for determination from the circumstances shown in evidence.” (21 Oye. 875-880, and cases there cited.) Here the attendant facts and circumstances of the killing were shown in evidence, both by the .prosecution and the defendant. The inferences to be drawn and found from them as to intent and malice, under such circumstances, were inferences of fact “which the jury must draw, if such seems to them to be their duty, and not one of law, which the court may impose upon their deliberation, and then upon that assumption shift the burden upon the prisoner, and require him to prove that no crime has in fact been committed.” (People v. Downs, 123 N. Y. 558, 25 N. E.. 988.) To the same effect are: Wharton on Homicide (3 Ed.), p. 220; Lucas v. State, 78 Neb. 454, 111 N. W. 145; Kennison v. State, 80 Neb. 688, 115 N. W. 289; Territory v. Lucero, 8 N. M. 543, 46 Pac. 18; Territory v. Gutierrez, 13 N. M. 138, 79 Pac. 716; Raines v. State, 81 Miss. 489, 33 South. 19; Stokes v. People, 53 N. Y. 164, 13 Am. Rep. 492; 2 Chamberlayne, Modern Evidence, 1137 et seq.
But it is said that, because of our statute (Comp. Laws 1907, sec. 4856) and the holding of our territorial courts (People v. Tidwell, 4 Utah, 506, 12 Pac. 61; People v. Cal[551]*551laghan, 4 Utah, 49, 6 Pac. 49; and People v. Dillon, 8 Utah, 92, 30 Pac. 150), the charge in such particular is proper. The section reads:
“Upon a trial for murder, tlie commission of the homicide hy the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, shall devolve upon him, unless the proof on the part of the prosecution tends to show that the crime committed amounts only to manslaughter or that the defendant was justified or excusable.”
The territorial courts, in the eases referred to, held that under the statute, upon proof of the killing, without a showing by the prosecution of circumstances in excuse, mitigation, or justification, the burden of proof, the onus probandi, shifts to the defendant, to prove by a fair preponderance of the evidence facts in mitigation, excuse, or justification; that is, in cases where the issue of self-defense, insanity, or any other defense of excusable or justifiable homicide is raised and relied on by the defendant, he, in order to avail himself thereof, is required to prove it by a fair preponderance of the evidence, a clear shifting of the burden of proof. Sven though such an interpretation of the statute should1 be adopted, still the charge referred to is not justified in a case where, as here, the attendant facts and circumstances of the killing are shown and are in evidence; for, as already pointed out, when such is the ease, the inferences of intent and malice and the character of the killing are to be determined as matter or inferences of fact, from a consideration of all the facts and circumstances in evidence, and not upon legal presumptions operating in the absence of explanatory evidence. And in such case it is not proper, nor justifiable by the statute, for the court, as was here done, to impose on the deliberation of the jury the legal presumption, and require them to presume a murder from the bare fact of the killing, regardless of the attendant facts and circumstances in evidence.
But these early territorial cases have been greatly modified, if not repudiated, by this court in the very recent ease of State v. Vacos, 40 Utah, 169, 120 Pac. 497. In that case [552]*552.Mr. Chief Justice Frick, having the statute referred' to under consideration, and after reviewing the Utah and California cases, said:
“We are clearly of the opinion, therefore, that in any case coming within the purview of section 4856 the duty or burden is cast upon the defendant to produce or bring forward the evidence in support of justification or excuse; but he is not required to establish the justification or excuse by a preponderance of the evidence before he is entitled to avail himself of that defense. All that he is required to do is to produce sufficient evidence of justification or excuse, which, when considered with all the other evidence in the case, will create a reasonable doubt in the minds of the jurors whether the homicide in question was justified or excusable or not.”
We think this a correct statement of the law, and the proper interpretation of the statute. It was concurred in by a unanimous court, while the territorial cases were by a divided court. The opinion clearly points out the distinction between “burden of proof,” the onus prohandi, the necessity of establishing the existence of a fact or a proposition by. evidence which preponderates to a legally required extent as against all counter evidence, and “burden of evidence,” the necessity of mere duty of proceeding or going forward and producing or bringing forward evidence in support of a proposition of fact. It is the latter, and not the former, which the statute casts on the defendant — not the necessity of establishing a justification or excuse as against presumptions or counter evidence, but the duty of proceeding or going forward and producing or bringing forward evidence of justification or excuse, when the commission of the homicide by the defendant is shown, without explanatory or attending circumstances. The burden of proof, however, to show malice, and a willful and intentional killing, and every other element necessary to constitute the charged offense, at no stage of the proceeding shifts, but remiains with the prosecution throughout the trial; and if upon the whole of the evidence, including that produced by the defendant, or the circumstances in mitigation, justification, or excuse brought [553]*553forward by him, or otherwise shown in evidence, the jury entertain a reasonable doubt as to the defendant’s guilt of any element necessary to constitute the charged offense, or one included therein, the defendant is entitled to an acquittal. The charge that “presumptively every killing is murder” was intended to give, and did give, the jury to understand that “presumptively” the killing of the deceased by the defendant was murder, regardless of the attending facts and circumstances connected with the killing and shown in evidence, and, in the language of the court in the case of People v. 'Downs, swpra, had the effect “to shift the burden of proving his defense upon the prisoner, and deprived him as to that defense of the benefit of a reasonable doubt,” and to give the jury to understand “that a conviction must follow unless the prisoner justified or excused the act, and that to secure acquittal he must be able to show a legal justification or excuse, and the jury must reach that conclusion if it would acquit.” In other words, notwithstanding the attendant facts and circumstances shown in evidence of the killing, the court, nevertheless, imposed upon the deliberation of the jury the legal presumption, and required! them to assume murder from the bare fact of the killing of the deceased by the defendant, from which a conviction would naturally follow, unless the defendant, to the satisfaction of the jury, had successfully met or overcome the presumption, thus shifting' and casting on him, not the “burden of evidence,” but the “burden of proof” — a doctrine repudiated by the Nacos Case. We think the judgment of the court below should' be reversed, and the case remanded for a new trial. Such is the order.
FRICK, C. J., concurs.