By the Court,
NORCROSS, C. J.:
A rehearing was granted in this case in order that further consideration might be given to the following instruction:
'"Irresistible passion,’ as’used in these instructions, means something more than mere anger or irritation. It" means that at the time of the act the reason is disturbed or obscured by passion to an extent which might render ordinary men of fair average disposition liable to act rashly, or without due deliberation or reflection, and from passion rather than judgment.
"Nor will irresistible passion, if proved to have existed, be sufficient to reduce the degree of the offense where the killing was done with express malice, as heretofore defined; under our statute express malice necessarily renders any murder, murder of the first degree.
"And if the jury should find from the evidence the [415]*415existence of facts and circumstances establishing beyond a reasonable doubt that the defendant had such a reckless disregard, of human life as necessarily includes a formed design against the life of Bessie Andy, the killing, if it amounts .to murder, would be on express malice, and consequently would be murder of the first degree. ”
In the former opinion in this case (38 Nev. 64, ante), this instruction was not considered. A more extended examination of the instruction, with a view to its bearing upon the peculiar facts of this case, convinces us that it is both erroneous and prejudicial.
The court had previously instructed the jury, in the language of the statute, that: • .
"Murder is the unlawful killing of a human being, with malice aforethought, either express or implied.
"Express malice is that deliberate intention unlawfully to take away the life of a fellow creature which is manifested by external circumstances capable of proof.”
"Malice shall be implied when no considerable provocation appears, or when all the circumstances of the killing show an abandoned and malignant heart.”
The jury were also instructed as follows:
"In cases where the unlawful killing is not perpetrated by means of poison, or lying in wait, or torture, or in the perpetration, or attempted perpetration, of any of the enumerated felonies, a difficulty is sometimes experienced in .drawing the distinction between murder of the first degree and murder of the second degree; but this difficulty is more apparent than real, and that there may be no confusion in the minds of the jury I will briefly restate the distinction. The real test to be applied in such cases is the presence or absence in the mind, of the slayér, at the time of- the commission of the murder, of a deliberate and premeditated intent to kill. In order to constitute murder of the first degree, the unlawful killing must be accompanied by a deliberate and clear intent to take life. The intent to kill must be the result of deliberate premeditation. It must be formed upon preexisting reflection,- and not upon a sudden heat of. passion sufficient to preclude the idea of deliberation.”
[416]*416The expression,'"irresistible passion,” was used in none of the instructions given, excepting the one quoted supra. The expression appears in two rejected instructions, one of which dealt with the law of manslaughter. Reading the definitions of "irresistible passion” and "express malice” into the instructions and we may have as a resultant something like this: Nor will the fact that the killing was done " without due deliberation, ” if proven so to have been done, be sufficient to reduce the degree of the offense if the killing was done with deliberate intention.
[1] It is contended that irresistible passion and express malice may coexist, and that the instruction is not fundamentally erroneous. For illustration, it is said that if A. forms a deliberate design unlawfully to take the life of B., but that before A. is-ableto carry out the preconceived design something intervenes to cause in A. an irresistible passion, such subsequently aroused passion would not operate to reduce the degree of homicide. It might be sufficient observation upon the illustration to say that in such a case it would be proper to instruct the jury that the subsequent irresistible passion would not operate to change the previously formed deliberate design, so as to effect a substituted and different causation for the killing. Under such a state of facts, it would be the duty of the court to instruct with reference to such facts so that the jury would not be confused. No such facts are presented in this case, and we need only consider what we think to be true as a general proposition of the law of homicide, to wit, that irresistible passion and express malice cannot coexist. If irresistible passion is "proven to have existed,” the homicide could not have been committed with express malice, and it could not be murder of the first degree. Authority exists in support of the proposition that implied malice and sudden passion may coexist, in which case the offense is not reduced to the grade of manslaughter. As said in Wharton on Homicide (3d ed.), sec. 163: ■
" If malice existed, ■ the crime is murder, and not manslaughter, though sudden passion coexisted and the [417]*417homicide was the product of both. * * * If the provocation is inconsiderable, the law. implies malice, and the homicide is murder; if it is great, malice will not be inferred, and it will be deemed to be manslaughter. ”
In Commonwealth v. Eckerd, 174 Pa. 187, 34 Atl. 305, it was held, in effect, that passion, even though sudden, must be upon sufficient provocation to repel an implication of malice. In Brewer v. State, 160 Ala. 66, 75, 49 South. 336, it was held that where the evidence showed that the defendant acted with malice, the fact that such malice may be accompanied with passion or anger aroused by deceased will not reduce the offense to manslaughter. See, also, Bohanan v. State, 15 Neb. 209, 18 N. W. 129; State v. Ashley, 45 La. Ann. 1036, 13 South. 738; State v. Johnson, 23 N. C. 354, 35 Am. Dec. 742.
While malice and passion may coexist and a homicide be the result of both,"express malice” and "irresistible passion,” as those terms are defined in the statute, cannot coexist. In express malice there is premeditation and deliberation, which are wanting in irresistible passion. As said in Nye v. People, 35 Mich. 19, it would be a "perversion of terms to apply the term 'deliberate’ to any act which is done on a sudden impulse. ”
See, also, Brown v. Commonwealth, 86 Va. 466, 10 S. E. 745.
[2] The instruction complained of in this case not only erroneously assumes that irresistible passion and express malice may coexist, but that if they do coexist, the element of express malice renders the killing murder in the first degree. The proposition of law that express malice, if determined to exist, renders the killing murder of the first degree, taken by itself, may be conceded to be a correct statement of the law. Taken in connection with the other part of the instruction, it renders the whole instruction confusing, contradictory, erroneous, and prejudicial. If the facts shown by the evidence were in this case sufficient in the minds of the jury to cause in the defendant a heat of passion insufficient to reduce the crime to manslaughter, but sufficient to
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By the Court,
NORCROSS, C. J.:
A rehearing was granted in this case in order that further consideration might be given to the following instruction:
'"Irresistible passion,’ as’used in these instructions, means something more than mere anger or irritation. It" means that at the time of the act the reason is disturbed or obscured by passion to an extent which might render ordinary men of fair average disposition liable to act rashly, or without due deliberation or reflection, and from passion rather than judgment.
"Nor will irresistible passion, if proved to have existed, be sufficient to reduce the degree of the offense where the killing was done with express malice, as heretofore defined; under our statute express malice necessarily renders any murder, murder of the first degree.
"And if the jury should find from the evidence the [415]*415existence of facts and circumstances establishing beyond a reasonable doubt that the defendant had such a reckless disregard, of human life as necessarily includes a formed design against the life of Bessie Andy, the killing, if it amounts .to murder, would be on express malice, and consequently would be murder of the first degree. ”
In the former opinion in this case (38 Nev. 64, ante), this instruction was not considered. A more extended examination of the instruction, with a view to its bearing upon the peculiar facts of this case, convinces us that it is both erroneous and prejudicial.
The court had previously instructed the jury, in the language of the statute, that: • .
"Murder is the unlawful killing of a human being, with malice aforethought, either express or implied.
"Express malice is that deliberate intention unlawfully to take away the life of a fellow creature which is manifested by external circumstances capable of proof.”
"Malice shall be implied when no considerable provocation appears, or when all the circumstances of the killing show an abandoned and malignant heart.”
The jury were also instructed as follows:
"In cases where the unlawful killing is not perpetrated by means of poison, or lying in wait, or torture, or in the perpetration, or attempted perpetration, of any of the enumerated felonies, a difficulty is sometimes experienced in .drawing the distinction between murder of the first degree and murder of the second degree; but this difficulty is more apparent than real, and that there may be no confusion in the minds of the jury I will briefly restate the distinction. The real test to be applied in such cases is the presence or absence in the mind, of the slayér, at the time of- the commission of the murder, of a deliberate and premeditated intent to kill. In order to constitute murder of the first degree, the unlawful killing must be accompanied by a deliberate and clear intent to take life. The intent to kill must be the result of deliberate premeditation. It must be formed upon preexisting reflection,- and not upon a sudden heat of. passion sufficient to preclude the idea of deliberation.”
[416]*416The expression,'"irresistible passion,” was used in none of the instructions given, excepting the one quoted supra. The expression appears in two rejected instructions, one of which dealt with the law of manslaughter. Reading the definitions of "irresistible passion” and "express malice” into the instructions and we may have as a resultant something like this: Nor will the fact that the killing was done " without due deliberation, ” if proven so to have been done, be sufficient to reduce the degree of the offense if the killing was done with deliberate intention.
[1] It is contended that irresistible passion and express malice may coexist, and that the instruction is not fundamentally erroneous. For illustration, it is said that if A. forms a deliberate design unlawfully to take the life of B., but that before A. is-ableto carry out the preconceived design something intervenes to cause in A. an irresistible passion, such subsequently aroused passion would not operate to reduce the degree of homicide. It might be sufficient observation upon the illustration to say that in such a case it would be proper to instruct the jury that the subsequent irresistible passion would not operate to change the previously formed deliberate design, so as to effect a substituted and different causation for the killing. Under such a state of facts, it would be the duty of the court to instruct with reference to such facts so that the jury would not be confused. No such facts are presented in this case, and we need only consider what we think to be true as a general proposition of the law of homicide, to wit, that irresistible passion and express malice cannot coexist. If irresistible passion is "proven to have existed,” the homicide could not have been committed with express malice, and it could not be murder of the first degree. Authority exists in support of the proposition that implied malice and sudden passion may coexist, in which case the offense is not reduced to the grade of manslaughter. As said in Wharton on Homicide (3d ed.), sec. 163: ■
" If malice existed, ■ the crime is murder, and not manslaughter, though sudden passion coexisted and the [417]*417homicide was the product of both. * * * If the provocation is inconsiderable, the law. implies malice, and the homicide is murder; if it is great, malice will not be inferred, and it will be deemed to be manslaughter. ”
In Commonwealth v. Eckerd, 174 Pa. 187, 34 Atl. 305, it was held, in effect, that passion, even though sudden, must be upon sufficient provocation to repel an implication of malice. In Brewer v. State, 160 Ala. 66, 75, 49 South. 336, it was held that where the evidence showed that the defendant acted with malice, the fact that such malice may be accompanied with passion or anger aroused by deceased will not reduce the offense to manslaughter. See, also, Bohanan v. State, 15 Neb. 209, 18 N. W. 129; State v. Ashley, 45 La. Ann. 1036, 13 South. 738; State v. Johnson, 23 N. C. 354, 35 Am. Dec. 742.
While malice and passion may coexist and a homicide be the result of both,"express malice” and "irresistible passion,” as those terms are defined in the statute, cannot coexist. In express malice there is premeditation and deliberation, which are wanting in irresistible passion. As said in Nye v. People, 35 Mich. 19, it would be a "perversion of terms to apply the term 'deliberate’ to any act which is done on a sudden impulse. ”
See, also, Brown v. Commonwealth, 86 Va. 466, 10 S. E. 745.
[2] The instruction complained of in this case not only erroneously assumes that irresistible passion and express malice may coexist, but that if they do coexist, the element of express malice renders the killing murder in the first degree. The proposition of law that express malice, if determined to exist, renders the killing murder of the first degree, taken by itself, may be conceded to be a correct statement of the law. Taken in connection with the other part of the instruction, it renders the whole instruction confusing, contradictory, erroneous, and prejudicial. If the facts shown by the evidence were in this case sufficient in the minds of the jury to cause in the defendant a heat of passion insufficient to reduce the crime to manslaughter, but sufficient to [418]*418prevent the killing from being with that deliberate premeditation required to constitute murder in the first degree, it would be the duty of the jury to bring in a verdict of murder in the second degree. (21 Cyc. 732.) The evidence was such in this case as to make it of the greatest importance to the defendant that the jury be correctly instructed upon the law of murder in the first and in the second degree. The defendant had taken Bessie Andy, the deceased, and the father and mother of the latter to a Thanksgiving Day dinner at a Chinese restaurant and, having finished the dinner, were on their way to the Indian camp which was the home of the father and mother of the deceased, when they met the white man Odell and the half-breed Indian or Mexican. Prior to this meeting there is nothing to indicate but that the relationship between defendant and the Indian girl, Bessie Andy, was the most cordial. Defendant testified that he had been living with Bessie Andy for several years previous in the relation of husband and wife. When they met the other parties on the street some casual words of greeting were spoken. Then something was said in the Indian language by Bessie Andy to the half-breed and by him to her. What the conversation was does not appear from the testimony of the state’s witnesses. The defendant testified that the half-breed wanted Bessie to go with him to Golconda, and threatened that if she did not do so he would kill Bessie and the defendant. Whatever this conversation was, it caused defendant to become suddenly enraged and to make a violent assault upon Bessie Andy. He knocked her down with his fist, and was beating her when Odell and the half-breed interfered in her behalf. Odell testified that the half-breed struck defendant,' and that he also struck defendant several times in the face; that he had his arm around defendant’s neck and was hitting him when defendant drew his knife from his pocket. Odell and the half-breed then ran. Defendant chased the halfbreed into a nearby saloon and stabbed him. Immediately thereafter he came out of the saloon to where Bessie [419]*419Andy was standing and stabbed her to death. The whole proceeding did not exceed a minute or two in time. From a relationship apparently of the most friendly character a change suddenly takes place, and within a few seconds or minutes defendant kills one with whom he has been most intimately associated for years. There can be no doubt of defendant’s being in passion. The degree of that passion as affecting deliberation and premeditation was a matter for the jury to consider in determining the degree of guilt from instructions clearly defining the law of murder in its different degrees.
[3j The last paragraph of the instruction in question we think also objectionable and in a case like this, without further elucidation, liable to be misleading. The paragraph appears to be adopted from a note in 21 Cyc. 731, and is based on an instruction given in the case of Burt v. State, 38 Tex. Cr. R. 397, 40 S. W. 1000, 43 S. W. 344, 39 L. R. A. 305, 330. The circumstances of the killing as disclosed by the evidence in the Burt case would necessarily establish a formed' design, and of itself be conclusive proof of express malice in a sane person. The defense in the Burt case was insanity. If sane, the circumstances of the killing precluded every other consideration but first-degree murder. For illustration, if a homicide is committed by binding and weighting the body, then throwing the same into water so death is necessarily produced by drowning, the method of accomplishing death conclusively establishes a formed design against the life of the deceased. Where death is produced by the common methods of stabbing or shooting, unless accompanied by other peculiar circumstances, the mere fact of stabbing or shooting would not of itself preclude other considerations negativing a formed design against the life of the deceased.
For the reasons given, the judgment is reversed, and the cause remanded for a new trial.