Express malice was not proved. If malice can be implied, killing is murder; if not, manslaughter. When homicide is proved, presumption is that it is in second degree. If state would elevate it to first degree it must show characteristics of that degree; if defendant would reduce it to manslaughter, burden is on him. State v. Melvern, 72 P. 489. *Page 242
Malice aforethought and premeditation have often been confused. Intention may be instantaneous as successive thoughts of mind, but premeditation implies reflection for some appreciable time, else how does it differ from sudden heat of passion, which is characteristic of manslaughter? Malice may be presumed, intention may be inferred, but deliberate design must be proved. Cases holding malice and premeditation may be presumed from class of weapons used are not applicable here. Henning v. State, 55 Am. Rep. 756; 13 R.C.L. 742.
Murder in second degree has all elements of murder in first degree except deliberation. State v. Darling, 97 S.W. 592.
To constitute first degree, killing must be deliberate and premeditated. State v. Hunt, 47 S.E. 49.
Long period of habitual intoxication or narcotic stupefication may extenuate. Instant condition to such degree that nonresponsibility can be predicated will preclude any presumption of premeditated design. It was error to deny application for new trial on ground of newly discovered evidence showing such condition. People v. Gerdvine, 104 N.E. 129; Cooke v. State, 35 S. 665; Rev. Laws, 6282; Roberts v. People, 19 Mich. 423.
There is grave doubt as to exact cause of death. Most likely cause is blood clot on brain caused by fall to floor, not blow of fist. Express malice was clearly proved. Defendant said, "I will kill you. I will kill you," while beating his prostrate mother.
In this state, premeditation and deliberation do not have separate meanings, but are synonymous. State v. Lopez, 15 Nev. 407. They may be inferred from circumstances of crime where facts show, as matter of logic, deliberate intent. Decision on question is peculiarly *Page 243 within province of jury. 1 Wharton Criminal Law (11th ed.), sec. 507; 30 C.J. 142; 13 R.C.L. 768; State v. Millian, 3 Nev. 409.
"Any other kind of willful, deliberate and premeditated killing" is totally separate classification from "all murder which shall be perpetrated by means of poison, etc.," and principle of ejusdem generis does not apply. 29 C.J. 1105; People v. Vinunzo, 180 N.W. 502.
Applications for new trials on ground of newly discovered evidence are viewed with suspicion. Such applications are not granted as matter of right, but lie in sound discretion of court. Such evidence must in fact be new, not merely cumulative or impeaching. Due diligence must be shown. State v. Wilberg,45 Nev. 192; Stats. 1917, 423; 16 C.J. 1182.
To render slayer guiltless of higher degree, intoxication must have made him utterly incapable of forming intent. If person has any intent or does any premeditating, he is guilty of higher degree. Case of People v. Leonardi, 38 N.E. 372, holding there need not be entire lack of intent represents minority view. How can there be a fractional part of an intent? Condition of mind merely excited by intoxicating drink yet capable of forming specific intent is distinguished from such prostration of faculties as renders forming of intent impossible. State v. Johnny, 29 Nev. 203; 16 C.J. 108; 29 C.J. 1060.
Insanity in this state is affirmative defense to be proved by defendant by preponderance of evidence. State v. Lewis, 20 Nev. 333. Burden of proving mitigation is on defendant. Rev. Laws, 6399.
OPINION John H. Randolph was convicted of murder in the first degree. A motion for a new trial having been denied, he has appealed from the sentence inflicting the death penalty and from the order denying his motion for a new trial.
Three points have been made to support the contention *Page 244 that the judgment and order should be reversed, viz.: First, that the trial court erred in instructing the jury as to the distinction between first and second degree murder; second, that the verdict is contrary to the evidence; and third, that a new trial should have been granted because of newly discovered evidence.
The evidence shows that the defendant is a man about 45 years of age; that he had long been addicted to the use of drugs, and on two or three occasions had been committed for treatment for the habit. It further appears from the testimony that on or about the night of June 30, 1925, he was residing with his mother in Reno, Nevada, and about 1:30 a.m. went home in an intoxicated condition and was helped into the house by one Gaffney; that he found his way into his mother's room where she was in bed; that he requested her to get up and make him a cup of coffee, and was told that she was sick and could not do it. He then requested her to get up and help him undress for bed, to which she replied that she was too sick, but she finally started to get out of bed to help him, at a moment when he began to use vile language toward her, whereupon she threw a glass of water in his face. He then assaulted her, knocking her down. He then jumped on her and caught her by the throat and was in the act of choking her, declaring, "I will kill you; I will kill you," when roomers in the house came in and pulled him off. His mother was a woman weighing about 350 pounds and was between 70 and 75 years of age. At the request of the mother, the police were called. When they arrived, he went to his mother and asked her to tell them it was all a mistake. She replied, "Not this time." She was removed to a hospital, where she died three days later, the autopsy showing several bruises about the head and body. It appears he had kicked her in the abdomen. The immediate cause of death was the injuries received on the head.
The only evidence introduced in behalf of the defendant was that going to show his years of dissipation and the effect thereof upon his physical and mental *Page 245 condition. There was no evidence to the effect that he was, or had ever been, insane.
1. We will first consider the second contention. Our statute defines murder to be the unlawful killing of a human being, with malice aforethought, either express or implied. The unlawful killing may be effected by any of the various means by which it may 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. In 1919 the legislature enacted:
"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 by 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, or which shall be committed by a convict in the state prison serving a sentence of life imprisonment, shall be deemed murder of the first degree." 1919 Stats. p. 468.
Counsel for defendant concedes that malice might have been implied by the jury but contends, as we understand him, that it must have been proven that the killing was willful, deliberate, and premeditated before the jury could have been justified in bringing in a verdict of murder of the first degree, and that there was no such proof. Just how counsel thinks deliberation and premeditation should be proven is not made clear. One thing is evident, however, and that is, if we accept his theory, proof of deliberation and premeditation could never be made in a case depending entirely upon circumstantial evidence. But it does not seem that it should be necessary to determine his contention, for it seems there is positive evidence in this case of a willful, deliberate, and premeditated design to kill. Defendant assaulted his mother, kicking her in the abdomen and knocking her down, got upon her, and while in the act of choking her, said, "I will kill you; I will kill you." *Page 246 This utterance, we must presume, was the expression of his real design. His mother died three days later as the result of his misconduct. To us it seems that no clearer case of willful, deliberate, and premeditated design to kill can be conceived. It is true that the immediate cause of death was the blows on the head, but the assault continued up to the moment the defendant was pulled off of the deceased, and his utterances during the making of the assault showed the state of mind of the defendant.
2. We will now take up the contention that the court erred in giving instruction No. 2, which reads:
"The court instructs the jury that, 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 in which the legislature makes the malice which is implied from the circumstances of the killing, whether voluntary or not, to stand in the place of that express malice — the deliberate intention unlawfully to take away the life of a fellow creature — which is, in all other cases, essential to the crime of murder in the first degree; 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.; the second is where the killing is done in the perpetration, or attempt to perpetrate, some one of the enumerated felonies. Where the case comes within either of these classes, the test question, `Is the killing willful, deliberate, and premeditated?' is answered by the statute itself, and the jury have no option but to find the prisoner *Page 247 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, but prescribes for the government of their deliberation the same tests which have 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 be 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."
3. In the case of State v. Harris, 12 Nev. 414, a very similar instruction was given, and, though a portion of it was criticized, it was not held erroneous. The instruction in the instant case was drawn to meet the criticism in the Harris Case. The instruction was again assailed in State v. Hymer, 15 Nev. 49, and in State v. Gee Jon, *Page 248 46 Nev. 418, 211 P. 676, 217 P. 587, 30 A.L.R. 1443, in each of which it was held that the instruction was not prejudicial. It is settled in this state that such an instruction is not erroneous, and we decline to consider the matter further. In this connection we may state that, though it does not seem to be made as a real ground for reversal of the judgment, something is said to the effect that, under the rule of ejusdem generis, the portion of the statute which provides, "All murder which shall be perpetrated by means of poison, or lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing," is limited to murder committed by means of poison, lying in wait, or torture. Such is not the law. The correct rule is stated in 29 C.J. 1105, as follows:
"The fact that the statute provides that all murders which shall be perpetrated by means of poison or lying in wait or any other kind of willful, deliberate, and premeditated killing shall constitute murder of the first degree does not require the application of the doctrine of ejusdem generis so that it shall be construed as applicable only to acts of the same general nature or class as those enumerated."
See, also, People v. Vinunzo, 212 Mich. 472, 180 N.W. 502; People v. Bealoba, 17 Cal. 389; Com. v. Jones, 1 Leigh (28 Va.), 598.
4. Did the court err in refusing to grant a new trial upon the ground of newly discovered evidence? We think not. The evidence sought to be introduced goes simply to the mental condition of the defendant some time prior to the assault, ranging from two hours and a half to a few minutes. At most this evidence could be only cumulative, since the witness Gaffney was the last person to see the defendant prior to the making of the assault and he testified to the condition of the defendant when he helped him into the house. The ruling of the trial court was right.
No error appearing, it is ordered that the judgment and order appealed from be affirmed, and that the district court make the proper order for carrying into *Page 249 execution by the warden of the state prison the judgment rendered.