Evans

The defendant has been convicted of the crime of murder and sentenced to imprisonment for life. He now appeals to this court.

The following instruction given to the jury is assailed as containing an unsound declaration of law: “If the jury believe from the evidence that the defendant, with malice aforethought, or without considerable provocation, inflicted a wound upon Robert Holland, and that Robert Holland died from the wound so inflicted by the defendant, and that there was no justification for the infliction of said wound, the defendant must take the whole consequence of his wrongful act, and the jury find him guilty of murder.” We 'have been referred to no instruction in the reports of this state couched in language at all similar to the foregoing, and we apprehend there is none. It has been suggested by this court upon many occasions in the past that it is always dangerous to attempt the statement of well-established principles of law in new and different ways. Approved instructions bearing upon the question of malice -in cases of murder may he found in the reports of this state by the score. It would have been .much better to have followed the lines there marked out. It is…

I dissent. The jury are specifically instructed that if the defendant inflicted a mortal wound without malice and without considerable provocation, and there was no justification, they must find him guilty of murder. This error is not cured by any number of other instructions defining murder. It is error to give contradictory instructions. The jury cannot determine between them, nor in this case can we tell which they accepted. Besides, it was telling the jury that they must find the defendant guilty if he inflicted the mortal wound, and there was no considerable provocation, notwithstanding these definitions; or, perhaps, it was an instruction to the effect that if there was no considerable provocation, as matter of law the killing was deemed to have been done with malice aforethought. This, I think, is the reasonable and natural construction of the instructions on this subject taken together. Of course, the jury is bound to accept all as correct.

It has been held, and I think properly, that when some essential qualification is omitted from some particular instruction, the case will not necessarily be reversed if the omitted qualification is supplied elsewhere, but if…