Turley

It appears by the bill of exceptions that the homicide in question was committed by the prisoner with a deadly weapon; that the supposed “provocation given by the deceased were words of reproach only;” and that these were uttered by the deceased when very drunk, and when the prisoner was walking away from him. The jury found the prisoner guilty of murder in the first degree, and he was thereupon adjudged to suffer death. The • appeal is taken from the judgment and from an order denying a new trial.

1. The first error relied upon is the refusal to give the seventh instruction asked by the prisoner, which instruction was in the following words: “ If there is a reasonable doubt whether the defendant at the time of the homicide was capable of deliberation or premeditation, you must not find him guilty of murder in the first degree.”

The court, however, gave another instruction (the ninth), asked by the prisoner, and which is in the following words: “Even if you find that the killing was malicious, and therefore murder, yet before you can find that it was murder in the first degree, you must be satisfied beyond a reasonable doubt not only that the defendant knew his act was wrongful,…