Wright, J.
The death of McCarty was caused by drowning. It was the indirect result of the act of the prisoner Wilson. The blow inflicted would not have produced death, but it caused temporary insensibility, and when McCarty fell, or was knocked into the canal by its force, he was unable to -help himself, and was drowned. The questions on the trial were: 1st. Was Wilson guilty of any offence; and 2d. If so, was it murder or manslaughter in one of the degrees defined by statute ? These were questions for the jury, under proper instructions from the court.
It appears from the bill of exceptions, that the presiding judge prefaced his charge to the jury by the statement that it was not claimed by the prisoner’s counsel that the defendant could be convicted either of manslaughter in the first or second [641]*641degrees, but that if he was guilty of any crime, it was either murder, or manslaughter in the third degree.
It is undoubtedly true, that there was nothing in the circumstances under which the death was effected, to bring the case within the statute definitions of manslaughter in the first or second degrees, unless it be assumed that the sixth section of the statute defining manslaughter in the first degree, is applicable to a case where a party causing death without design, is engaged in an assault and battery. Some judges have taken this position, whilst others have held that, in order to bring a case within the definition of manslaughter in the first degree, it is necessary to show that the accused was committing, or attempting to commit, some other offence than that of intentional violence upon the person killed. (Darry v. The People, 2 Park. Cr. R., 634; The People v. Butler, 3 Id., 377; The People v. Rector, 19 Wend., 605.) But was the proposition that, if the prisoner was guilty of any crime, it was either murder or manslaughter in the third degree, strictly correct? Of this I entertain serious doubt. The statute defines what shall be murder, and also four degrees of manslaughter. It also declares what shall be justifiable or excusable homicide. Manslaughter in the third degree is the killing of another in the heat of passion, without the design to effect death, by a dangerous weapon, in any case except such wherein the killing is declared to be justifiable or excusable.
In the fourth degree, it is defined to be the involuntary killing of another by any weapon, or by means neither cruel nor unusual, in the heat of passion, in any other cases than such as are declared by the statute to be excusable homicide. After defining murder, justifiable and excusable homicide, and the four degrees of manslaughter, it is provided that “ every other killing of a human being, by the act, procurement or culpable | negligence of another, where such killing is not justifiable or excusable, or is not declared in this chapter murder, or in this title manslaughter of some other degree, shall be deemed manslaughter in the fourth degree. (2 B. S., 662, §19.)
[642]*642Mow this was not a case of murder, unless the killing was perpetrated from a pernreditated design to effect the death of McCarty. It was not a case of manslaughter in the first or second degrees. Mor was it manslaughter in the third degree, unless the killing was in the heat of passion, and without a design to effect death, and by a dangerous weapon. For the case to have fallen within this degree, it was not enough that the killing was in the heat of passion, and without the design to effect death, but it must also have been by a dangerous weapon. If the killing was not effected by the use of a dangerous weapon, though the heat of passion existed, and there was the absence of design to effect death, it would not be manslaughter in the third degree. But if the killing was in the heat of passion, and without the design to effect death, but not by the use of a dangerous weapon, I see not why a conviction might not properly be had of manslaughter in the fourth degree; and if so, the instruction that Wilson, if guilty of any crime, it was either murder or manslaughter in the third degree, was erroneous. I use the term instruction, for what the judge said to the jury was in the nature of an instruction, whilst directing their attention to the statutory definitions'of murder and manslaughter in the different degrees, and interpreting those provisions. But the prisoner’s counsel appear to have been satisfied with this branch of the charge, and took no exception.
It is now well settled that, under our statutes, to constitute the offence of murder, there must be a premeditated design to effect the death of the person killed, or, in other words, an intention to kill. The design may be long meditated, or it may be conceived at the moment the fatal blow is given; but it must be found to exist, else it is not murder. There must be, what the common law did not require, the existence of an actual intention to kill. In this case, unless Wilson, when he pushed or knocked McCarty overboard from the canal boat, precipitating him into the water, formed the design, at the instant, to kill the latter, it was not murder. Such intention may be inferred from the circumstances under which the violence is inflicted, and sometimes from the act itself, for men are [643]*643to be presumed to intend the natural and inevitable conse- f quences of the acts which they willfully perform; but unlessj there be such an intention, the act cannot be more than maa-j slaughter. The effect of our statute is to explode the whole common law doctrine of implied malice and the power of i recent provocation, to reduce the act from murder to man- • slaughter. In the absence of the intent to kill, the act must, be justifiable or excusable homicide or manslaughter, within} some one of the degrees defined by statute—Was the judge therefore correct, whilst speaking of the blow inflicted by Wilson, in instructing the jury that, if the natural consequences of a blow is to precipitate a man into the water, and he drown, such act is murder, unless explained away by evidence or circumstances attending the transaction? Or was he correct in the charge, “ That should a man stand on the edge of a dock, and another push him into the river, the pusher is not entitled to say to the other, you must swim; if he be drowned, such act is murder, unless explained away by evidence of the circumstances attending the transaction, for the law presumes that a man intends the consequences of his acts, unless otherwise explained ?” Either of the cases put to the jury would, at' common law, have been prima facie murder, for malice would have been implied from the act itself, and the burden of proof | to explain or reduce the grade of the offence to manslaughter would have been shifted upon the accused. But under ourf statutes, another ingredient was wanting to constitute the crime | of murder: viz.: an actuaOntention, by Ine lnnicabn^flthe blow, or the push into the water, to lnil. ~ltis true that the jury would be at liberty to infer this intention in a proper case from the act itself, upon the salutary rule of the commc law, that a man is held to intend that which, in the ordina] course of things, would be the natural result of his acts jr1out no legal implication of a felonioi innocence of the transaction, or sl&ugktenf^Itseehis apparent to me mat me learned judge nad in view the common law rule, that in every homicide by vigas to throw upon the accused [644]*644* lence, the law implies malice, so as to make it prima fade I criminal, throwing the onus
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Wright, J.
The death of McCarty was caused by drowning. It was the indirect result of the act of the prisoner Wilson. The blow inflicted would not have produced death, but it caused temporary insensibility, and when McCarty fell, or was knocked into the canal by its force, he was unable to -help himself, and was drowned. The questions on the trial were: 1st. Was Wilson guilty of any offence; and 2d. If so, was it murder or manslaughter in one of the degrees defined by statute ? These were questions for the jury, under proper instructions from the court.
It appears from the bill of exceptions, that the presiding judge prefaced his charge to the jury by the statement that it was not claimed by the prisoner’s counsel that the defendant could be convicted either of manslaughter in the first or second [641]*641degrees, but that if he was guilty of any crime, it was either murder, or manslaughter in the third degree.
It is undoubtedly true, that there was nothing in the circumstances under which the death was effected, to bring the case within the statute definitions of manslaughter in the first or second degrees, unless it be assumed that the sixth section of the statute defining manslaughter in the first degree, is applicable to a case where a party causing death without design, is engaged in an assault and battery. Some judges have taken this position, whilst others have held that, in order to bring a case within the definition of manslaughter in the first degree, it is necessary to show that the accused was committing, or attempting to commit, some other offence than that of intentional violence upon the person killed. (Darry v. The People, 2 Park. Cr. R., 634; The People v. Butler, 3 Id., 377; The People v. Rector, 19 Wend., 605.) But was the proposition that, if the prisoner was guilty of any crime, it was either murder or manslaughter in the third degree, strictly correct? Of this I entertain serious doubt. The statute defines what shall be murder, and also four degrees of manslaughter. It also declares what shall be justifiable or excusable homicide. Manslaughter in the third degree is the killing of another in the heat of passion, without the design to effect death, by a dangerous weapon, in any case except such wherein the killing is declared to be justifiable or excusable.
In the fourth degree, it is defined to be the involuntary killing of another by any weapon, or by means neither cruel nor unusual, in the heat of passion, in any other cases than such as are declared by the statute to be excusable homicide. After defining murder, justifiable and excusable homicide, and the four degrees of manslaughter, it is provided that “ every other killing of a human being, by the act, procurement or culpable | negligence of another, where such killing is not justifiable or excusable, or is not declared in this chapter murder, or in this title manslaughter of some other degree, shall be deemed manslaughter in the fourth degree. (2 B. S., 662, §19.)
[642]*642Mow this was not a case of murder, unless the killing was perpetrated from a pernreditated design to effect the death of McCarty. It was not a case of manslaughter in the first or second degrees. Mor was it manslaughter in the third degree, unless the killing was in the heat of passion, and without a design to effect death, and by a dangerous weapon. For the case to have fallen within this degree, it was not enough that the killing was in the heat of passion, and without the design to effect death, but it must also have been by a dangerous weapon. If the killing was not effected by the use of a dangerous weapon, though the heat of passion existed, and there was the absence of design to effect death, it would not be manslaughter in the third degree. But if the killing was in the heat of passion, and without the design to effect death, but not by the use of a dangerous weapon, I see not why a conviction might not properly be had of manslaughter in the fourth degree; and if so, the instruction that Wilson, if guilty of any crime, it was either murder or manslaughter in the third degree, was erroneous. I use the term instruction, for what the judge said to the jury was in the nature of an instruction, whilst directing their attention to the statutory definitions'of murder and manslaughter in the different degrees, and interpreting those provisions. But the prisoner’s counsel appear to have been satisfied with this branch of the charge, and took no exception.
It is now well settled that, under our statutes, to constitute the offence of murder, there must be a premeditated design to effect the death of the person killed, or, in other words, an intention to kill. The design may be long meditated, or it may be conceived at the moment the fatal blow is given; but it must be found to exist, else it is not murder. There must be, what the common law did not require, the existence of an actual intention to kill. In this case, unless Wilson, when he pushed or knocked McCarty overboard from the canal boat, precipitating him into the water, formed the design, at the instant, to kill the latter, it was not murder. Such intention may be inferred from the circumstances under which the violence is inflicted, and sometimes from the act itself, for men are [643]*643to be presumed to intend the natural and inevitable conse- f quences of the acts which they willfully perform; but unlessj there be such an intention, the act cannot be more than maa-j slaughter. The effect of our statute is to explode the whole common law doctrine of implied malice and the power of i recent provocation, to reduce the act from murder to man- • slaughter. In the absence of the intent to kill, the act must, be justifiable or excusable homicide or manslaughter, within} some one of the degrees defined by statute—Was the judge therefore correct, whilst speaking of the blow inflicted by Wilson, in instructing the jury that, if the natural consequences of a blow is to precipitate a man into the water, and he drown, such act is murder, unless explained away by evidence or circumstances attending the transaction? Or was he correct in the charge, “ That should a man stand on the edge of a dock, and another push him into the river, the pusher is not entitled to say to the other, you must swim; if he be drowned, such act is murder, unless explained away by evidence of the circumstances attending the transaction, for the law presumes that a man intends the consequences of his acts, unless otherwise explained ?” Either of the cases put to the jury would, at' common law, have been prima facie murder, for malice would have been implied from the act itself, and the burden of proof | to explain or reduce the grade of the offence to manslaughter would have been shifted upon the accused. But under ourf statutes, another ingredient was wanting to constitute the crime | of murder: viz.: an actuaOntention, by Ine lnnicabn^flthe blow, or the push into the water, to lnil. ~ltis true that the jury would be at liberty to infer this intention in a proper case from the act itself, upon the salutary rule of the commc law, that a man is held to intend that which, in the ordina] course of things, would be the natural result of his acts jr1out no legal implication of a felonioi innocence of the transaction, or sl&ugktenf^Itseehis apparent to me mat me learned judge nad in view the common law rule, that in every homicide by vigas to throw upon the accused [644]*644* lence, the law implies malice, so as to make it prima fade I criminal, throwing the onus of explanation on the accused; telse what is meant by the language, “ Unless explained away by evidence or circumstances attending the transaction ?” “If,” says the judge, “ the natural consequences of a blow is to pre- * cipitate the man into the water, and he drown, it is murder, unless explained away by evidence,” &c. How explained away, and by whom ? Certainly, by the prisoner. “ To strike a blow, the natural consequence of which is to precipitate another into the water, and that other drown, it is murder.” This is the instruction. Why, unless it be that the law implies malice, and an actual intention to kill need not exist. It is virtually saying that it is not incumbent upon the prosecution to satisfy the jury of a conceived design to effect death by the person inflicting the blow, before there can be a conviction" for murder; but that the act of inflicting a blow under circumstances that will necessarily precipitate the person into the water, and he drown, is sufficient prima fade (the law inferring that the act was malicious), to establish guilt. It seems to me, that, taking the charge together, it proceeded upon the idea that the homicide was per se criminal, and that if the destruction of McCarty’s life resulted from the act of the prisoner, it ’ was murder, unless explained away by proof on the part of the prisoner. This ruling shifted the burden of proof, and * relieved the prosecution from the necessity of satisfying the » jury of the intent to take life, the existence of which fact it was just as necessary for the prosecution to establish, and which was as much of, the essence of the crime, as the killing. Should it be said that the illustrations given of what would be ¿ murder, were not applicable to the facts of the case, and are Á therefore to be treated as mere abstract propositions, it is not difficult to perceive that they were calculated to mislead the jury. The circumstances under which McCarty was drowned were few and simple. He and Wilson were hands on board * of boats navigating the canals of the State. McCarty’s boat, with two others, were lying in the canal, near the railroad bridge, at West Troy. About 3 o’clock in the morning, the [645]*645boat on which Wilson was employed arrived from Buffalo, and came too along side of one of the boats. Whilst they were engaged in securing and managing her lines, an altercation arose between Wilson and McCarty. Whether they had ever met before does not appear, but abusive words passed between them, and threats of fighting. McCarty was near the stern or side of his boat, when Wilson stepped upon her deck. As the latter approached McCarty, he picked up from the deck a blunt instrument and inflicted a blow with it upon the head of McCarty. The latter was so near the side of his boat that, being stunned by the blow, he fell into the water of the canal, or the force of the blow precipitated him into the water. Wilson dropped the weapon on the boat, and took a pole and attempted to get the body out of the water, but failing, called to the men of the other boats. The blow producing a concussion of the brain, rendering him insensible, McCarty could do nothing to extricate himself from the water, and he drowned.
Mow, that the destruction of the life of McCarty resulted from the act of Wilson was manifest, but certain it is that it was not murder, unless at the time of striking the blow he designed to kill him. This was a controlling question in the case in characterizing the act as murder, and it was a fact that the jury must find before a conviction could legally be had. Indeed, in my view, it was the principal question. The jury might have found the actual intention to kill, from the circum- f stances attending the act, or inferred it from the act itself, if a murderous weapon was used, or the blow was inflicted in a dangerous place, or the natural and inevitable consequences of such blow was to produce insensibility, and from McCarty’s position on the boat to precipitate him into the water in that state. But instead of saying to the jury that they must find the actual intention to kill at the time of inflicting the blow^' which precipitated McCarty into the water, before they could convict of murder. I cannot but think that the charge of the judge was calculated to mislead them, if nothing more, by the abstract propositions (if they are to be so called), enunciated in this part of it. But the judge did not intend them as abstract [646]*646propositions. He was speaking of the case in hand when he told the jury that pushing a man into the water, if he were standing on the edge of a dock, or that if the natural consequences of a blow be to precipitate the man struck into the water, and he drown, the acts were murder. The jury must naturally have understood from the charge, that in order to find the verdict that they did, they need only determine that the prisoner pushed or knocked McCarty into the water, and that he drowned. This would be ignoring the true criterion of the crime of murder, the intent to hill, and cannot be correct unless it is true that every killing, not explained by the defendant, is per se murder.
- In the judge’s explanation to the jury of the statutory offence of manslaughter in the third degree, he stated “ that the ‘heat of passion’ means a quarrel—an altercation in which the party killed is immediately concerned; that is, the ‘ heat of passion ’ must not be all on one side; there must be sufficient cause for it.” And again, after the jury had returned into court, and inquired whether they could find a verdict in any other form than guilty or not guilty, the presiding judge further charged, among other things, in these words: “ It is questionable whether words even of the most aggravated character would be allowed to produce the heat of passion meant by the statute, which would reduce the grade of the offence.” «The idea sought by the judge to be conveyed to the jury in his explanation of the term “heat of passion,” in his first charge, probably was, that if in a paroxysm of unprovoked anger one kill another, or instigated by brutal passion, not excited by such other, the assailant kills his victim, it is not that “ heat of passion ” which forms one of the statutory ele^rnents of manslaughter. As a principle, this was undoubtedly correct. If the intention to kill exists, it is not the less murder that the killing occurred under the excitement of unpro- . voked and brutal passion. I cannot but think, however, that the judge was unfortunate in the use of terms to convey the idea to the jury. Is it always necessary to the existence of that “ heat of passion” contemplated by the statute, that there [647]*647should be a quarrel or altercation in which the party killed is immediately concerned? I think not. If the contemplated “ heat of passion ” actually exists, it would palliate the offence, if the accused should, whilst thus excited, kill some other than the one engaged in the altercation with him. Again, said the judge, “ the heat ot passion must not be all on one side; there must be sufficient cause for it.” Now, would not the jury from this probably understand that the statute “heat of passion” could not exist where there was no manifestation of excitement or passion on the side of the party assailed ? Such a view would certainly be a mistaken one. The test which the statute makes, is as to the “ heat of passion ” of the accused. He may be severely injured, and his passions excited by the acts of one who is entirely cool and deliberate. Again, what was meant by the expression, “ There must be sufficient cause for 1 the heat of passion ?’ ” Or, rather, what would the jury probably understand by it? Why, that there must be sufficient in the conduct of, the party assailed to provoke :and heat the passions of the assailant. What conduct would be sufficient, was not explained. Whether an assault, or words alone, or words added to an assault. Subsequently, however, the judge instructed the jury substantially, that the use of words alone, even of the most aggravated character, would not be allowed in law to produce the heat- of passion meant by the statute, which would reduce the grade of the offence; that is, that an excited or heated passion, provoked by words alone, even of the most aggravated character, is not that “heat of passion” meant by the statute in defining the offence of manslaughter. This was virtually saying to the jury that in nt> case where a party, acting under an excitement provoked by words alone, assaults another, and death, not intended, is the result of the assault, can the offence be reduced to manslaughter. In the' prisoner’s case there was no pretence that in making the assault upon McCarty he was acting under any other excitement than that provoked by words; and this declaration of the law was equivalent to saying to the jury that they could not find the prisoner guilty of manslaughter in the third degree, even [648]*648though the killing was by a dangerous weapon, and unintentional. Was the law, therefore, in this respect correctly expounded ? I think not. The law, respecting the infirmities of oar nature, attaches a less degree of criminality to acts of violence perpetrated under an excitement provoked by the assailed. The passions may be heated as effectually by words as by acts; and an assault may be provoked oftentimes as readily by the former as the latter. In cases of assault of the person, it has always been held that provocation by words has gone far to mitigate the legal wrong. It cannot be that the accused must always show a combat and a sufficient provocation. It is enough that the passions are heated by the acts or conduct of the one upon whom the assault is made, and it matters not whether- this state is produced by acts or words, if either the one or the other are naturally calculated to produce it. It is conceded, in the points of the counsel for the People (what is undoubtedly the law), that if parties become excited by words, and one of them, acting under the excitement provoked by words, attempt to chastise the other with a weapon not deadly, he may be held for manslaughter, though death, not intended, is inflicted. This could not be, if the law would not allow, as the judge charged, “ the heat of passion ” meant by the statute to be produced or provoked by “ words even of the most aggravated character.”
Upon the trial, the coroner, who was a physician, and who had held the inquest and made the post-mortem examination, was called as a witness. He described with particularity the wound discovered on the right side of the head of McCarty, and expressed the opinion that only one blow was given, and that blow produced concussion of the brain, causing insensibility. He expressed the further, opinion that McCarty was by the blow rendered insensible so that he could not help himself, and he drowned in the water of the canal. The prosecution then put to him the following question: From your examination of the wound that you have described, what kind of an instrument, was it caused by, in your opinion ? This question was objected to as not being the subject matter [649]*649of an opinion; but the objection was overruled by the court, and the witness answered: “ That wound, in my opinion, was caused by a blow from some blunt instrument.”
The same question was put to another physician who assisted in the post-mortem examination, the same objection taken and overruled, and his answer was, “I think it was caused by some blunt instrument like the head of an axe or hammer.” I am not satisfied that the court ruled correctly in this respect, and I think it would be difficult to sustain the ruling upon principle. The kind of instrument used was of course a material element in showing malice aforethought; but the question here is, was the evidence admitted to show it legal and competent ? Whether any, and what kind of instrument was used, was a fact for the jury to find. Physicians are allowed to express opinions on matters pertaining to their particular science or profession, for the reason that, from the nature of the subject, facts disconnected from such opinions cannot be so presented to a jury as to enable them to pass upon the question with the requisite knowledge and judgment. On a subject not of science or skill, or involving no peculiar experience or knowledge, opinions of witnesses are inadmissible. To answer properly whether the wound discovered on McCarty’s head was produced by a sharp or blunt weapon, required no peculiar scientific knowledge; and after the physicians had described minutely the character of the wound and the indentation of the skull bone, and expressed the opinion that concussion of the brain was produced by the blow, the jury were just as competent as these professional experts to find or guess what kind of a weapon caused the skull bone to be pressed in as described, and whether it was blunt or otherwise. It is obvious that a great variety of weapons would produce such an injury as was found on the head of the deceased; and if there was to be any guessing on the subject, the jury, and not the witness, was alone competent to do it. From the description given of the wound, it was just as manifest to the jury as to the witness that it was caused by some blunt and not sharp weapon. But this was not the purpose of the inquiry. That [650]*650purpose was to get these experts to express an. opinion as to the particular instrument with which the blow was inflicted. This was accomplished by the reply of the second witness, that he thought the wound was caused by .some blunt instrument, like the head of an axe or hammer. In the absence of any weapon identified as being used by the prisoner, the theory of the prosecution that the weapon was an axe or hatchet, or hammer, was sought to be sustained not by the proof of facts tending to show the particular kind of instrument used, but by the opinions of witnesses. These witnesses were experts in matters pertaining particularly to their profession, and as such were permitted to express opinions; but when the question was one not of skill, and it was obvious that the jury were quite as competent as themselves to determine the question, such opinions were inadmissible. These scientific witnesses were certainly not better able to judge of the peculiar kind of blunt instrument that pressed in the skull of the deceased, the thickness of the bone, than the jury. Their skill "did not enable them to say whether it was an axe or hammer, or any other weapon. All that they could say was, that a blunt substance of the dimension of the wound had been applied to McCarty’s skull with sufficient force to press in the skull the thickness of the bone. This the jury was just as competent to determine as the witnesses, and the prisoner was entitled to the opinion of the jury, and not the witnesses, whether the instrument used was an axe or hammer, or other dangerous weapon.
I am of the opinion that there should be a new trial. One thing is quite manifest, that the prisoner did not intend to destroy the life of McCarty by drowning him; but when he struck the blow that cast the latter into the water, if the design existed to effect death, it would be murder. If the killing was not actually intended, it could be but manslaughter.
The prisoner was entitled to have this question of intent distinctly presented to the jury; and if, from the evidence, they found it to have existed 'at the time of raising the weapon and striking the blow, they might properly convict him of the higher offence. So also, if the jury found that under [651]*651an excitement growing out of a quarrel or altercation with the deceased, the assault was made with a dangerous weapon, but without the formed design of effecting death, the only proper conviction would be for manslaughter.
The judgment of the Oyer and Terminer should be reversed, • and a new trial ordered.
Hogeboom, J., concurred; Gould, J., dissented.
Judgment reversed.