Appeal from the District Court, Tenth Judicial District, Sierra County.

The defendant was indicted for the crime of murder in the second degree of one Lawrence Nolans, on or about April 25th, 1867, in Sierra County, and was, at the July Term of the District Court, within and for said county, tried and convicted of said offense. The defendant appealed from the judgment, and from an order denying his motion for a new trial. The motion for a new trial was based upon the alleged error of the Court in giving, on behalf of the people, certain instructions to the jury, and the refusal of the Court to give to the jury certain instructions asked on behalf of defendant.

■ The instructions given by the Court were as follows, to wit:

“ Murder is the unlawful killing of a human being, with malice aforethought, either express or implied. The unlawful killing may he effected by any of the various means by which death max be occasioned.

“ 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. All murder which shall be perpetrated by means of poison, or lying in wait, torture, or any other kind of willful, deliberate, and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, or burglary, shall be deemed murder of the first degree; and all other kinds of murder shall be deemed murder of the second degree; and the jury before whom any person indicted for murder shall be tried, shall, if they find such person guilty thereof, designate by their verdict whether it be murder of the first or second degree.

“ Under our statute, an indictment for murder is sufficient ‘ if a man of ordinary intelligence can understand therefrom that, under such circumstances as show a felonious intent, a mortal wound was inflicted by the defendant upon the deceased, of which wound he died within a year and a day. from its infliction.’

“ In dividing murder into two degrees, the Legislature •intended to assign to the first, as deserving of greater punishment, all murders of a cruel and aggravated character, and to the second, all other kinds of murder which are murder at common law, and to establish a test by which the degree of every case of murder may be readily ascertained. That test may be thus stated : Is the killing willful, (that is to say, intentional,) deliberate, and premeditated ? If it is, the case falls within the first, and if not, within the second, degree. There are certain kinds of murder which carry with them conclusive evidence of premeditation. These the Legislature has enumerated in the statute, and has taken upon itself the responsibility of saying that they shall be deemed and held to be murder of the first degree. These cases are of two classes. First, where the killing is perpetrated by means of poison, etc. Here the means used is held to be conclusive evidence of premeditation. The second is where the killing is done in the perpetration or attempt to perpetrate some one of the felonies enumerated in the statute. Here the occasion is made conclusive evidence of premeditation.

“ Where the case comes within either of these classes, the test question, 1 Is the killing willful, deliberate, and premeditated V is answered by the statute itself, and the jury have no option hut to find the prisoner guilty in the first degree. Hence, so far as these two cases are- concerned, all difficulty as to the question of degree is removed by the statute. But there is another and much larger class of cases included in the definition of murder in the first degree, which are of equal cruelty and aggravation with those enumerated, and which, owing to the different and countless forms which murder assumes, it is impossible to describe in the statute. In this class the Legislature leaves the jury to determine, from all the evidence before them, the degree of the crime, hut prescribes for the government of their deliberations the same test which has been used by itself in determining the degree of the other two classes, to wit: the deliberate and preconceived intent to kill. It is only in the latter class of cases, that any difficulty is experienced in drawing the distinction between murder of the first and murder of the second degree, and this difficulty is more apparent than real. The unlawful killing must be accompanied with a deliberate and clear intent to take life, in order to constitute murder of the first degree. The intent to kill must be the result of deliberate premeditation. It must be formed upon a preexisting reflection, and not upon a sudden heat of passion sufficient to preclude the idea of deliberation. There need be no appreciable space of time between the intention to kill and the act of killing—they may he as instantaneous as successive thoughts of the mind. It is only necessary that the act of killing be preceded by a concurrence of will, deliberation, and premeditation on the part of the slayer, and if such is the case, the killing is murder in the first degree, no matter how rapidly these acts of the mind may succeed each other, or how quickly they may be followed by the act of killing.

“To justify a person in killing another in self defense, it must appear that the danger was so urgent and pressing, that in order to save his own life, or to prevent his receiving great bodily harm, the killing of the other was absolutely necessary, and it must appear also that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further struggle before the mortal blow was given.

“Drunkenness shall not be an. excuse for any crime, unless such drunkenness be occasioned by the fraud, contrivance, or force of some other person or persons, for the purpose of causing the perpetration of an offense. But, as in all cases where a jury find a defendant guilty of murder, they have to determine the degree of crime, it becomes necessary for them to inquire as to the state of mind under which- he acted, and in the prosecution of such an inquiry his condition, as drunk or sober, is proper to be considered.

“Where the homicide is not committed by means of ■poison, lying in wait, or torture, or in the perpetration or the attempt to perpetrate arson, rape, robbery, or burglary, the degree of the offense depends entirely upon the question whether the killing was willful, deliberate, and premeditated; and upon that question it is proper for the jury to consider evidence of intoxication, if such there be, not upon the ground that drunkenness renders a criminal act less criminal, or can be received in extenuation or excuse, but upon the ground that the condition of the defendant’s mind at the time the act was committed must be inquired after, in order to justly determine the question as to whether his mind was capable of that deliberation or premeditation which, according as they are absent or present, determine the degree of the crime. As between murder in the second degree and manslaughter, the drunkenness of the offender can form no legitimate matter of inquiry, for manslaughter is the unlawful killing of a human being, without malice, express or implied, and without any mixture of deliberation.

“ The killing being proved, the burden of proving circumstances of mitigation to justify or excuse the homicide will devolve on the accused, unless the proof on the part of the prosecution sufficiently manifests that the crime committed only amounts to manslaughter, or that the accused was justified or excused in committing the homicide. If you find the defendant has committed a public offense, hut have reasonable doubt in which of two or more degrees he is guilty, then you can find him guilty of the least of such degrees only.”

The instructions refused were as follows, to wit:

“ 1. In all cases of crime indictable under the statutes of California, the indictment must be direct and certain as regards the offense charged.

“ 2. In this case the indictment is for murder in the second degree, and is, therefore, as to the offense, direct and certain, and the defendant can be tried at this time for no greater offense.

“8. If you find that the defendant did threaten the life of the deceased, that must not he taken into account against him, unless you believe his action finally was to carry 'out such threats; or, in other words, if you believe the then present attitude of the deceased created the motive for defendant’s action, then any previous threats to him could not amount to anything, and the only questions would be, did he act with such degree of malice, wickedness or wantonness as to make the case murder in the second degree; or did he act from such a sudden and uncontrollable passion as to make the offense, if any, manslaughter; or did he act in necessary self defense ?”