I agree with Mr. Justice HUDSPETH in part as to the effect of the amendment of section 9, chapter 145, of the Session Laws of 1925, quoted by him.
Finding provisions similar to those embodied in the amendment contained in chapter 48, Laws 1929, in statutes of many other states, I do not think the circumstance of whether it was an adoption of the Oklahoma similar statute is greatly important. It reflects the adoption of a policy well known. Nor do I attach importance to the wording of the title to the amendatory act. If this language refers to chapter 145, Laws 1925, it is inaccurate because that chapter did not relate solely to forms of indictment and information, but, as its title and the body of the act shows, it relates to "Procedure in Criminal Cases." If the title to the amendatory act refers to section 9 of chapter 145, Laws 1925, alone, it is too narrow a description, because that section, as it was originally enacted, related to verdicts as well as to indictments and informations. The language of the amendment: "Provided the jury trying the cause may find the defendant or defendants guilty of any offense the commission of which is necessarily included in *Page 59 that with which he or they are charged," deals with verdicts and not with indictments and informations. It should be noted that the provisions of that section both as originally enacted and as amended declare: "Where the same acts may constitute different offenses the accused may be guilty of, the different offenses may be set forth in separate counts in the same indictment or information and the accused may be convicted of either offense."
It is further provided that: "The same offense may be set forth in different forms or degrees under different counts."
In Bandy v. State, cited in the prevailing opinion, the Ohio Supreme Court thought that section 1035, U.S.R.S., U.S. Comp. St. § 1701, 2 Fed. Stat. Anno., 2d Ed., p. 690 (18 USCA § 565), reading: "In all criminal causes the defendant may be found guilty of any offense the commission of which is necessarily included in that with which he is charged in the indictment * * *" was "substantially similar" to Ohio statute, § 13692, Gen. Code, which reads: "Upon an indictment, the jury may find the defendant not guilty of the offense charged but guilty of an attempt to commit it, if such attempt is an offense at law. When the indictment charges an offense including different degrees, the jury may find the defendant not guilty of the degree charged and guilty of an inferior degree thereof," etc.
This view confirms mine that the proviso added in 1929 to section 9, chapter 145, Laws 1925, while specifically giving the jury the power to find the defendant guilty of a necessarily included offense, it may be fairly said that the legislative intention was to give the jury power also to find the defendant guilty of inferior necessarily included degrees of the sameoffense charged. If this is not so, then greater strictness would be required in reference to different degrees of the sameoffense than in case of different included offenses, and there seems to be no reason therefor.
That there is a difference between included offenses and included degrees of the same offense is recognized in the enactment by our Legislature. Offenses may be distinct and yet included. For instance, voluntary manslaughter is an offense included in homicide, yet it is not a degree of murder. For the purposes of this discussion, I assume with the majority that the view of the Ohio Supreme Court in Bandy v. State, supra, is correct, and that our statute does not mean that a conviction of a lesser included offense or a lesser included degree of the same offense can be sustained if there is an entire absence of evidence upon which to rest the verdict.
The holding of the territorial Supreme Court in Territory v. Salazar, 3 N.M. 321, 5 P. 462, that: "In a prosecution, on an indictment for murder in the first degree, where the instruction given to the jury is as to murder in the second degree, while the evidence was sufficient to convict of murder in the first degree, the instruction, though erroneous, being more favorable to the defendant than the evidence would warrant, he can not complain," suggests an inquiry as to whether the *Page 60 views thus expressed are in conflict with the holdings in State v. Pruett and State v. Trujillo. The decision in Territory v. Salazar, supra, has never been directly criticized, modified, or overruled. It is to be noted that the territorial Supreme Court in that case found that the evidence in the case did not require the court to submit to the jury the fourth degree of murder. This was apparently because the court thought that evidence of an intentional killing did not establish the offense of an unintentional killing. As to whether evidence produced by the prosecution in a homicide case showing clearly and without dispute that the killing was willful, deliberate, and premeditated, which is an intentional, malicious killing, would sustain a verdict of voluntary manslaughter, which is an unlawful killing of a human being without malice, upon a sudden quarrel or in the heat of passion, or of involuntary manslaughter, which is an unintentional killing occurring in the commission of an unlawful act not amounting to a felony or in the commission of a lawful act which might produce death, in an unlawful manner or without due caution and circumspection, I do not undertake to say. We are not here dealing with different offenses, even though they may be necessarily included in the offense of homicide. We have but to consider degrees of the same offense, to wit, murder.
Under our statutes, murder is defined as: "The unlawful killing of a human being, with malice aforethought, either express or implied." Comp. St. 1929, § 35-301.
Under the first clause of section 35-304, Comp. St. 1929, one of the kinds of unlawful killings of a human being which is defined as murder in the first degree is: "All murder which shall be perpetrated by means of poison or lying in wait, torture, or by any kind of wilful, deliberate and premeditated killing."
In the case at bar, the appellants claim that the evidence is not sufficient to show their connection with the crime. In this respect, they argue that the evidence does not support the verdict. They do not claim that the evidence is not sufficient to have sustained a verdict of murder in the first degree if the jury had rendered such a verdict. To the contrary, they claim that the evidence proved murder in the first degree or it proved nothing.
In endeavoring to discover the principles which should control our decision in a case like the one at bar, great care should be exercised lest we become confused as to the proof required to sustain a verdict of murder in the first or second degree as those degrees are defined in our statute. Appellants assert that, where the killing is by torture "or the homicide is committed in the perpetration of a felony, neither deliberation nor premeditation or intention to kill are necessary elements of first degree murder." They cite State v. Welch, 37 N.M. 549,25 P.2d 211. The cases are not parallel. The majority do not admit them to be so. I assume that in a murder case, where the charge is that, the defendant unlawfully killed the deceased "in the perpetration of or attempt to perpetrate a felony," it is not necessary for the prosecution to either allege or prove that the killing was either willful, deliberate, or *Page 61 premeditated. If the proof would warrant the jury in concluding that the defendant had killed the deceased "in the perpetration of or attempt to perpetrate a felony," the state need go no further. Under the first clause of the statute, it is necessary for the prosecution to prove that the defendant intended to kill the deceased; second, that the killing was with malice aforethought; third, that the malice was of the character known as express or intensified malice (deliberation). It seems to be conceded in conference that, if the killing were by means other than "poison, or lying in wait, torture," if the prosecution has proved by clear, convincing, and undisputed evidence the presence of these elements or ingredients of murder in the first degree, and there is no evidence on the part of the state from which any inferences could be drawn which would warrant the submission of the issue of murder in the second degree, and the defendant has brought forth no evidence to controvert or impair the testimony of the state, the trial judge would not be required to submit the issue of murder in the second degree. (Whether the amendment to section 9, chapter 145, Laws 1925, heretofore referred to, has changed this situation as far as the duties of the trial judge are concerned, I express no opinion.) Yet, if the trial judge made a mistake and submitted a charge of murder in the second degree, and the jury should find the defendant guilty of murder in the second degree, the verdict could not be set aside because it was more favorable to the defendant than he was entitled to. It seems to be admitted that under such circumstances the evidence thus satisfying the requirement of murder in the first degree will sustain a conviction of murder in the second degree because the verdict of not guilty in the first degree has served only to eliminate deliberation which elevates murder in the second degree to murder in the first. But the majority inquire: "Where the law descends to particulars and prescribes that a murder perpetrated by means of torture is murder in the first degree, and the jury finds that the homicide was thus effected, how can it be said that murder in the second degree is included?" As well ask, How can a willful, deliberate, premeditated murder be second degree murder? Let the thought be carried a little further by asking: How can a guilty man be innocent; and how can a verdict of not guilty be rendered in either supposed case?
I am not referring to classes of cases where the evidence is conflicting. I am referring to murder cases (absent perpetration by means of poison, lying in wait, torture) where, in the view of the trial judge, the evidence is clear or convincing and undisputed that a willful, deliberate, and premeditated killing has occurred and the defendant is the killer — a case so strong on behalf of the state that the court would not be required to submit the issue of murder in the second degree. The element of deliberation has been establishd by clear and overwhelming evidence of threats by the defendant, ill will and hostility (the ordinary characteristics of evidence adduced to establish deliberation), and, if the court makes a mistake, and submits second degree, and the jury find the defendant guilty of second degree, murder, *Page 62 the verdict may not be set aside because the error of the trial court is not prejudicial to the defendant and the verdict is sustained by the evidence because the evidence which is sufficient to prove all of the elements of murder in the first degree is sufficient to prove all but deliberation.
Believing, as I do, that this case is distinguishable from State v. Welch, I am in agreement with much that was said by the Supreme Court of Nevada in State v. Lindsey, 19 Nev. 47,5 P. 822, 823, 3 Am. St. Rep. 776, where statutes like ours were under consideration, that, where the means employed to effect the killing are poison, lying in wait, or torture, the case stands precisely the same as in any case not enumerated in the statute where there is a willful, deliberate, and premeditated killing. The means employed to kill if within the enumeration of the statute carry with them conclusive evidence of the elements which raise murder from the second degree to first degree. I think that is all that can be claimed for the enumerated means. In Aguilar v. Territory, 8 N.M. 497, 46 P. 342, 344, the court says that: "If the murder is perpetrated by means of poison, lying in wait, torture * * * the law presumes that the acts by which the murder has been thus committed have been done with that premeditation and deliberation which constitute the crime murder in the first degree."
Is it any more shocking to the intelligence and consciences of the reviewing judges that the jury shall flagrantly "stultify itself by returning a verdict contrary to what it knows to be the law" when the issue of the existence of the elements of deliberation has been answered in the affirmative by a presumption erected by the statute which dispenses with the proof of the facts than it is for them to flagrantly disregard other conclusive proof established by undisputed and overwhelming evidence of the character appropriate to establish deliberation?
While mentioning these judicial criticisms of the frailties of juries, I think it well to say a word in extenuation. The Nevada court, in State v. Lindsey, said:
"A judge should always inform the jury of the degree which the law attaches to murder, by whatever means the crime may have been committed; but in every case it is the province of the jury, if the prisoner is found guilty, to determine and fix the degree by their verdict, and the courts cannot deprive the jury of their right to fix the degree by imperatively instructing them, in a case where the crime was committed by administering poison (or in any other case), that if they find the prisoner guilty they must find him guilty of murder in the first degree. Robbins v. State, 8. Ohio St. 193: Beaudien v. State, 8 Ohio St. 638: Rhodes v. Commonwealth, 48 Pa. 398; Lane v. Commonwealth, 59 Pa. 375; Shaffner v. Commonwealth, 72 Pa. 61 [13 Am. Rep. 649].
"Wharton, in discussing the degrees of murder, says: `But, however clear may be the distinction between the two degrees, juries not infrequently make use of murder in the second degree as a compromise, when they think murder has been committed, but are *Page 63 unwilling, in consequence of circumstances of mitigation, to expose the defendant to its full penalties.' 2 Whart. Crim. Law, § 1112.
"In Rhodes v. Commonwealth [48 Pa. 398], supra, the court said: `Under proper instructions from the bench, it is not only the right of the jury to ascertain the degree, but it is the right of the accused to have it ascertained by them. * * * No doubt cases of murder in the first degree have been found in the second, but this must have been anticipated when the statute was framed, and has certainly been observed under its operation, and yet it has remained upon our statute-book since 1794 unaltered in this regard. Possibly the very distinction of degrees was invented to relieve such jurymen's consciences as should be found more tender on the subject of capital punishment than on their proper duties under evidence. Many men have probably been convicted of murder in the second degree, who, really guilty of the higher crime, would have escaped punishment altogether but for this distinction in degrees so carefuly committed by the statute to juries.'
"The jury have the undoubted power to fix the crime in the second degree when it ought, under the law and the facts, to be fixed in the first. `We need not speculate about why it was so provided. It is sufficient that it is so written, and we cannot change, alter, or depart from it.' Lane v. Commonwealth, supra."
If the suggestion is valid, and I think it is, that the distinction into degrees was invented for the purpose suggested by the Pennsylvania court, and also the Legislature has placed it in the power of the jury to state in their verdict the degree of which the defendant is guilty, they ought not to be much blamed if their verdicts are not technically correct.
That the rule is not different in the cases where the means of committing a deliberate and premeditated murder by means of poison or torture is referred to in the annotation in 21 A.L.R. 603, as follows:
"Under a statute requiring that if the jury find the defendant guilty of murder they shall ascertain in their verdict whether it is murder in the first or second degree, it has been held that a jury may find a defendant guilty of murder in the second degree, although the evidence shows a homicide by poisoning, and such an offense is by statute made murder in the first degree. State v. Dowd (1849) 19 Conn. 388. In that case the court said: `In most of the cases mentioned in the statute as constituting the crime of murder in the first degree, the lesser crime is manifestly included. Thus, if the charge were that the murder was committed by the accused while lying in wait, the jury might find that it was not so committed, and convict him only of the lesser offense. So, if it were averred that the act was done by him while attempting to commit the crime of arson or rape, the jury might find that part of the charge untrue, and still convict the prisoner of murder in the second degree. Now, if the same rule applies to a case where the charge is for murder by poisoning, then the conviction in this case was legal. The language of the statute *Page 64 strongly favors such a construction. It provides that murder perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate, and premeditated killing, shall be murder in the first degree; thereby implying that in all cases the crime must be the result of a wilful, deliberate, and premeditated act. Hence, if any case can be supposed where murder may be committed by means of poison, and not be the result of such an act, then a conviction of murder in the second degree may be legal. And we do not feel ourselves authorized to say that the case under consideration might not have been one of that description; and, consequently, that the verdict is not right. Indeed, we are rather inclined to consider such the fair construction of the statute, especially as it is a highly penal one, and such construction operates against the greater severity.' See to the same effect, State v. Greer (1895) 11 Wash. 244, 39 P. 874. The latter case was cited with approval in State v. Howard (1903) 33 Wash. 250, 74 P. 382, wherein the homicide appeared to have been perpetrated in committing a rape, but the evidence that it was so committed was not conclusive.
"Likewise, under a statute providing that whenever a crime is distinguished into degrees, the jury, if they convict the defendant, must find the degree of the crime of which he is guilty, it has been held that a jury may find the defendant guilty of manslaughter on evidence which is clearly sufficient to prove murder in the first degree by poison, under the statute relating to murder by poison. State v. Phinney (1907)13 Idaho, 307, 12 L.R.A. (N.S.) 935, 89 P. 634, 12 Ann. Cas. 1079."
A leading case which is very persuasive is State v. Yargus,112 Kan. 450, 211 P. 121, 27 A.L.R. 1093. This is so particularly on account of a similarity of definition of murder in the first degree and murder in the second degree therein contained to that afforded in State v. Smith, 26 N.M. 482, 194 P. 869, 870. In the Yargus Case, wherein the defendant, charged with committing murder in the first degree by means of poison, was convicted of murder in the second degree, the statute on which the charge was based provided that every murder committed by means of poison "shall be deemed murder in the first degree," and that a murder "committed purposely and maliciously, but without deliberation and premeditation," shall be deemed murder in the second degree. The court reviews at some length the propriety, under such circumstances, of the submission to the jury of second degree or a conviction therefor. Assuming that the evidence did not show an absence of deliberation and premeditation by committing murder by poison, the court declares that, nevertheless, the error of submission to the jury of second degree murder was not prejudicial to the defendant.
The greater offense, it is said, includes the less — has allelements thereof, together with deliberation and premeditation; and if, as claimed by the appellant, the use of poison to commit murder involves deliberation and premeditation, she was benefited, and not injured by the instruction in question. *Page 65
In the Yargus Case the court said: "The greater offense included the less; it had, in any view, all the elements of the less, and possibly two which it lacked — deliberation and premeditation."
In State v. Smith, supra, we held that, in a case where the prosecution attempts to prove murder in the first degree perpetrated by lying in wait, and the defendant pleads self-defense, the court properly instructed the jury on murder in the second degree. The theory of the opinion is similar to that of the Supreme Court of Kansas in the Yargus Case, that is, that murder in the second degree is included in murder of first degreewith deliberation added, to constitute murder in the first degree. We there said: "It is conceded by the state and by the appellant that the act of lying in wait supplies the element which raises the crime to the grade of murder in the first degree, and that, if such fact — that is, lying in wait — is proven, together with the elements that constitute murder in thesecond degree, it is not necessary for the state to go further and prove deliberation."
It is further said: "In all cases of murder then we have premeditated malice"; that is to say, there are some elements that are common to both degrees. Again it is said: "We have then in this case a murder committed without that deliberate intention to take away the life of a fellow creature, or, as it is sometimes stated, without deliberation. It was a killing with malice, but without deliberation, and without the lying in wait. If the lying in wait is eliminated, as it must be in this case,for the verdict was not murder in the first degree, thereremains an unlawful or felonious killing unexplained to the satisfaction of the jury by the defendant's evidence of self-defense. From this unlawful killing without justification or excuse, for the jury disregarded the evidence of self-defense, the jury found the defendant guilty of murder in the second degree, which is murder with malice, but without deliberate intention or without deliberation, or without lying in wait, butwith all the other elements of murder present, namely, a killing that was willful or intentional, premeditated or thought of before (aforethought), felonious or unlawful — that is, without justification or excuse."
And again:
"The jury were entitled to draw this inference, that is, that the defendant was guilty of second degree murder, from the evidence and the killing and the failure of the defendant to satisfy them as to his plea of self-defense. The fact that the state failed to prove murder by lying in wait or murder in the first degree to their satisfaction beyond a reasonable doubt, and the defendant did not prove justification by self-defense, left to the jury the right to say, under the evidence or absence ofevidence of deliberation, that the homicide thus committed was murder in the second degree, or, as heretofore stated, murder with malice, but without deliberation. This malice the jury could infer from the evidence or absence of evidence, or it would have been implied in this case as a matter of law if the jury, as an inference of fact, found *Page 66 the essential conditions under the statute for the implication; that is, that no considerable provocation appeared, or that all the circumstances of the killing show a wicked and malignant heart. We are unable topoint to any specific evidence, or say that particular evidenceis evidence of murder in the second degree, by the inferences drawn from facts and circumstances or the absence of facts and circumstances tending to prove deliberation justified the jury in taking the view that the homicide was one with malice, as above defined, and without deliberation, but with all the otherelements of murder present."
In the definition of murder, we find the courts and law-writers constantly referring to its "elements" and to the elements of the two degrees thereof.
Experience in the administration of the law of crimes has caused the erection of certain presumptions which are sometimes referred to as "presumptive evidence."
One of the most famous of these is the presumption in favor of innocence. "The law presumes the innocence of a person charged with crime until the contrary is proved beyond a reasonable doubt." Lawson in his work on "Law of Presumptive Evidence" agrees with Mr. Rufus Choate that this presumption "is in the nature of evidence for the defendant," and that "it is equal to one witness" — in theory at least. At page 640, Prof. Lawson, discussing the nature of a presumption, says: "Presumption is allowed to prove facts, even in criminal cases; and one of the highest modes of proof is to show the existence of circumstances which could not have existed if the fact proved had not existed. And what is this kind of proof but presumption. A single circumstance may have little strength, and of itself afford no foundation; but when joined to many more of the same nature, all fitting each other and having the same relation, the whole united may form an arch strong enough to support a presumption of the most important fact."
An intentional killing with a deadly weapon or means stripped of all its incidents and surrounding circumstances is presumed to be murder in the second degree. The burden is on the prosecution to raise it to the first degree, and on defendant to reduce the grade of the crime. 30 C.J. Homicide, § 358.
In Aguilar v. Territory, supra, this well-known presumption seems to be recognized: "While the death and the weapons or means used to produce death, may, in and of themselves, be sufficient to show murder, yet alone they raise no presumption as to the degree of the murder. If any presumption as to the degree is to be raised from these facts, it is the second degree; and, if the territory would lift the crime from this to the higher degree, it can do so only by the proof of such additional facts and circumstances in relation to the crime as will permit the court to charge, and the jury to determine, that it was done with that deliberation and premeditation which will make it murder in the first degree."
Lying in wait is not of itself a means of taking life, but merely evidence to prove the elements of deliberation and premeditation. *Page 67 Wharton on Homicide, § 110. Homicide by poison is not necessarily murder at common law, and, if it is not, it is not murder in the first degree under the statute. Wharton on Homicide, § 109. The placing of deadly poison with fatal consequences in a cistern of drinking water, done with a wicked and malignant heart, might be an act "greatly dangerous to the lives of others, indicating a depraved mind regardless of human life," so as to be murder in the first degree. But it is doubtful whether evidence of such act would be sufficient where the charge is a felonious intent to murder a particular person; it having been decided that this statutory provision does not apply to cases of death produced by acts affecting a single individual, or where there is an intent to kill any particular individual. 29 C.J. Homicide, § 84. If poison were administered fatally to a particular individual, the person administering it might be innocent of any offense or guilty of murder or manslaughter, according to the circumstances of the case.
In the Territory v. Vialpando Case, 8 N.M. 211, 42 P. 64, our territorial Supreme Court said that torment judicially inflicted was not the torture meant by our murder statute, and I venture to add that pain, anguish, pang, and suffering inflicted by a surgeon in the performance of an operation, and the patient dying as a result thereof, are not what is meant by our statute.
My argument is that evidence which would warrant the jury in finding a verdict of first degree murder because the elements of second degree are proved, and element of deliberation is proved by virtue of the presumptive evidence afforded by the statute where the means employed to effect death is poison or torture, would not eliminate proof by the same evidence of the elements of murder in the second degree any more than the proof of the existence of such elements of second degree would be eliminated where the proof of deliberation and premeditation is established by uncontroverted evidence of hostility, threats, ill will, and other circumstances appropriate to establish such deliberation and premeditation. In either case the included evidence which establishes the existence of second degree murder is there, and the finding by the jury even in flagrant disregard of the evidence, presumptive or otherwise, and contrary to their obligations and in the teeth of the law that the elements of deliberation and premeditation (express malice) did not exist, does not eliminate proof of implied malice and the proved elements of murder in the second degree.
Do not the means employed by the defendants to kill the deceased show wicked and malignant hearts which is sufficient to constitute implied malice which is sufficient to satisfy the required element of implied malice to establish second degree murder? Express malice necessarily renders any murder one in the first degree. Because a jury has said that proof of certain facts which would warrant an inference that both implied malice and express malice have been established have said by their verdict that express malice has not been established, is there any reason for us to say that the proof does not establish implied malice? As I understand them, *Page 68 the majority would answer in the negative, except where the express malice has been established by presumptive evidence afforded by the statute where the means employed to effect death are those particularly enumerated as illustrations of kinds of willful, deliberate, and premeditated killings.
In Bandy v. State, 102 Ohio St. 384, 131 N.E. 499, 504, 21 A.L.R. 594, the court said: "So far as generalizations are possible in case of murder in the first degree, it may fairly be said that in murder in the first degree, where there is charged an unlawful killing, intentionally done, with deliberate and premeditated malice, the general rule would be that the lesser degrees would not only be included in the formal charge, but suggested or supported by some of the evidence in the case, and that therefore a refusal to charge upon the lesser degrees should be the exception. Whereas, in cases of murder in the first degree, where an intentional killing was charged in the commission of some felony enumerated in the statute, there would doubtless be a more equal division as to whether or not the evidence showed any lesser degree than the one literally charged. Probably in this class of cases it might be said that the lesser degrees would be the exception."
They had a case before them of the latter kind.
The difference is, I think, that in cases of that sort, like State v. Welch, the elements of malice, intention to kill, deliberation, and premeditation are not elements of the offense to be proved. There "homicide" committed in the perpetration of a felony is murder in the first degree, though not willful, deliberate, or premeditated. Under the first sentence of our statute defining murder in the first degree, murder is the willful, deliberate, and premeditated killing of a human being such as by means of poison, lying in wait, torture. The enumeration of these means shows the kind of deliberation and premeditation contemplated. These elements are not absent as they are in "homicide" committed in the perpetration of a felony.
In an article in volume 94, Central Law Journal, 114, written by Hon. James E. Garrigues, formerly justice of the Supreme Court of Colorado, under the title "Murder and Malice — Express and Implied," is impressed the idea I am trying to delineate. After showing that murder in the first degree is based on express malice and murder in second degree on implied malice, he says:
"Every conviction of first degree murder, based on express malice, includes implied malice, but proof of implied malice does not include proof of express malice. But the proof might, and often does, show both implied and express malice, and murder in the first degree, and still the jury return a verdict of second degree murder, based on implied malice, or manslaughter, which would not be reversible error, because the defendant could not take advantage of a verdict in his favor. * * *
"The phrase, `deliberate intention unlawfully to take away the life of a fellow creature,' used in the definition of express malice, is synonymous with `deliberation and premeditation.' *Page 69 Premeditation and deliberation are elements in the proof of express malice. Proof of a deliberate intention, executed, unlawfully to take away the life of a fellow creature, proves express malice. Such deliberate intention is synonymous with premeditation. There is no difference in meaning between the definition of express malice and the deliberation and premeditation necessary to constitute murder of the first degree. No material distinction exists between deliberate and deliberation — both are synonymous with a premeditated killing.
"It is evident that the statutory definition of express malice is synonymous with deliberation and premeditation. If one forms such deliberate, specific intention, unlawfully to kill, and carries it into execution, he is guilty of murder of the first degree, and such intention may be implied by the jury from the facts and external circumstances proven on the trial, and when so implied, is proof as a fact, of express malice.
"At common law there were no degrees of murder, and no distinction in value between implied and express malice. As a punitive measure, our statute divides murder into degrees without affecting the definition of murder, which is the unlawful and malicious killing of a human being. At common law, the distinction between express and implied malice had no practical value, and little attention was paid to it, because it made no difference whether malice was implied or expressed, it was murder in either event. The punishment was the same, and there were no degrees, and no distinction in the punishment. This accounts for the general use of the term malice in the books, and the lack of any distinction as to whether they refer to express or implied malice, because it made no difference. Often, it is difficult to know whether opinions and textbooks refer to express or implied malice, for the reason the distinction is without a difference. Both are of the same value, and no attention is paid to the distinction. In fact, there was no distinction. But, under a statute where a conviction of murder of the first degree, based upon premeditation and deliberation, may carry with it a death sentence depending upon express malice, and is impossible of proof without proof of malice in fact, the distinction between implied and express malice becomes of the utmost importance.Every case of first degree murder, of course, necessarilyincludes implied malice; but implied malice, standing alone, willnot sustain first degree murder. A case resting alone upon proof of implied malice is lacking in proof of a specific intention to take life. At common law, as we have said, no importance was attached to this distinction, because there was no difference in value between implied and express malice, and the distinction amounted to nothing; but this is not true under the statute.
"Because the evidence makes out a case of implied malice, does not inhibit the jury from also finding express malice. Malice,both implied and expressed, might be shown by the same proof; thekilling might be unlawful, and no considerable provocationappear; or the circumstances of the killing might show anabandoned and malignant heart, which *Page 70 would constitute proof ofimplied malice; and the same evidence might also show adeliberate intention unlawfully to take human life, whichintention might be inferred by the jury, constituting proof infact of express malice. So upon the same proof, malice might be both express and implied malice, in which event the jury should return a verdict of murder of the first degree. But upon proof of implied malice only, without proof of express malice, it would be murder of the second degree. In fact it would be hard toconceive of a case of first degree murder that did not includesecond degree murder and voluntary manslaughter. To illustrate: Any unlawful killing of a human being without legal provocation may show conditions under which the statute says malice shall be implied. If, in addition to proof of implied malice, the evidence on the trial shows such deliberate intention to kill, this would be proof, as a fact, of express malice. Indeed, any specific, deliberate intention, unlawfully to take away the life of a fellow creature without legal provocation, carried into execution, constitutes a killing without considerable provocation appearing, and shows an abandoned and malignant heart, and is proof of both implied and express malice, and is murder in bothdegrees. The evidence which might warrant the jury in returning averdict of murder of the first degree would include proof ofimplied malice, and murder in the second degree. The degree ofguilt being left to the jury, it follows they might, and we knowthey do, in cases where the evidence showed murder of the firstdegree, return a verdict of murder of the second degree, just asthey often return a verdict of not guilty when the evidenceshowed, beyond any reasonable doubt, defendant guilty ofmurder." (Italics supplied.)
In an able article by Hon. Rollin M. Perkins, professor of law, State University of Iowa, and legal advisor of the American Law Institute on criminal procedure and on administration of the criminal law, entitled, "A Re-examination of Malice Aforethought," it is said: "It would be an unreasonable burden upon the prosecution to require it in every murder case to prove not only the killing of the deceased by the defendant, but also the non-existence of every conceivable set of circumstances which might be sufficient to constitute either innocent homicide or guilt of manslaughter only. Thus the state is not required, in order to make out a prima facie case of murder, to prove (in addition to the killing of the deceased, by the defendant) that the defendant was not so insane as to be wanting in criminal capacity, or that the killing was not an accident, or that it did not result from the privileged use of deadly force, or that it did not result from the sudden heat of passion engendered by great provocation, or other matters of this kind. To require such proof, moreover, would constitute an absurd waste of time. This difficulty is avoided by a rule of law in the form of a presumption. It has sometimes been said that every homicide is presumed to be with malice aforethought and that it devolves upon the prisoner to prove circumstances which will justify, excuse or mitigate the act. This, however, is quite generally recognized to be an overstatement of the position. If the evidence *Page 71 introduced by the state, while showing the killing of the deceased by the defendant, should at the same time establish some basis of justification or excuse, the defendant would be entitled to a directed verdict of acquittal without the introduction of evidence on his part. Hence it is necessary to put the matter in this form: Every homicide is presumed to have been committed with malice aforethought `unless the evidence which proves the killing itself shows it to have been done without malice.' Since this is a presumption in the true sense it merely places upon the defendant the burden of going forward with the evidence. It is rebuttable and may be overcome by evidence which throws a different light upon the situation or which establishes exculpating or mitigating circumstances. If no such evidence is offered, a conviction of murder is proper because of the `presumed malice.'"
Suppose the accused were charged merely with second degree murder, would the fact that the prosecution proved an unlawful killing and the evidence showed both implied and express malice, entitle him to an acquittal?
In the case at bar, the jury found an unlawful intentional killing of the deceased upon proof sufficient to show both implied and express malice and sufficient to prove murder inboth degrees.
The indictment was in the common-law form. It was not alleged that the means employed to effect death constituted torture. Assuming this to have been unnecessary, it also appears that the jury were not instructed that, if they believed the killing to have been accomplished by the means alleged, presumptive evidence would be afforded of deliberation and premeditation (express malice). The failure to so instruct placed a heavier burden upon the prosecution than necessary, since the jury were left to the task of finding existence of deliberation and premeditation from such evidence of these facts as is ordinarily adduced to establish them. If it was error to fail to instruct as to significance of torture as an evidentiary matter, it was favorable to defendants. If heed is to be given to appellants' argument that the acts the jury said they committed in themselves proved deliberation and premeditation, they ought not to have taken advantage of the situation which placed additional burdens on the prosecution.
It is hardly fair to the state to entertain the proposition of appellants that the evidence shows murder in the first degree because the proof of the means of killing is statutory presumptive evidence sufficient to prove those facts essential to first degree murder when the jury were not advised that they could so consider.
While it is not necessary to speculate as to why the jury failed to find the existence of express malice (deliberation and premeditation), I think a word as to the evidence of intoxication of the defendants is not out of place. Wharton on Homicide, at page 10, says: "Murder in the second degree rests upon implied malice and the jury may find the existence of implied malice which will subject the accused to a charge of murder in that degree, though his intoxication was such as disproved express malice." *Page 72
Since the state had the burden of proving deliberation and premeditation in order to elevate the murder to first degree, some doubt would be cast upon the probative effect of the state's evidence by evidence introduced by the state itself, showing intoxication of defendants.
The question of whether intoxication of accused may be invoked by him in a case where the killing is by poison, lying in wait, or torture, for the purpose of rebutting deliberation and premeditation, does not arise, because, so far as the jury was informed, this was not a case coming within the statutory enumeration of examples of willful, deliberate, and premeditated killing. And; too, the evidence of intoxication was not adduced by defendants, but was put in by the prosecution. So I think intoxication as affecting capacity to deliberate, being one of the facts of life which the jury are credited with knowing, may properly have been considered by them in weighing the presumptive evidence of deliberation. If, as said in State v. Diaz, 36 N.M. 284,13 P.2d 883, 887, "The common knowledge of the intelligent jury may serve fairly as to presumption of innocence, self-defense, or circumstantial evidence," I do not see why it may not serve also as to the effects of intoxication on the ability to "deliberate."
These considerations, to my mind, absolve this jury from the imputation of flagrant disregard of duty, etc.
It in a measure also explains the court's action in submitting an instruction in second degree. When the evidence of intoxication offered by the prosecution without objection from defendants came in, the court doubtless thought it had a bearing on the issues, and may have intended to instruct upon its consideration by the jury, but have overlooked doing so. If it is a correct speculation that the jury may have had their consideration affected by it beneficially to appellants, it was just as good for them as if the jury had been guided by proper instructions. See State v. Brigance, 31 N.M. 436, 246 P. 897.
I understand the law to be that, if there is any evidence which may reasonably create a doubt, however slight, in the mind of the jury as to whether the killing were willful, deliberate, and premeditated, it is the duty of the court to instruct as to the law of both degrees.
In State v. Le Duc, 89 Mont. 545, 300 P. 919-927, the court expressed a doubt in a case where the evidence warranted a verdict of first degree murder whether a verdict of guilt in second degree could be sustained by the presumption that an unlawful killing of a human being with a deadly weapon or means is murder in the second degree or whether some substantive evidence would not be required to support it. Here we have held that a finding of fact by the court sustained by "presumptive evidence" would not be disturbed on appeal. Weeks v. Bailey,33 N.M. 193, 263 P. 29. I do not know why the rule should be otherwise in a criminal case, especially where the presumption is one which the law has evolved out of motives of charitable consideration — for the frailties of men, and the benefit of the accused. And more particularly in a case where the appellants rely for *Page 73 reversal upon presumptive evidence to establish that the jury should have found them guilty of first degree murder or not guilty. But, as I have endeavored to show, this presumptive evidence, though substantial, is a lesser reliance.
The idea that one accused of murder has a right in a case where the evidence warrants a conviction of murder in the first degree to gamble on the verdict and obtain a submission of first degree or nothing was exploded in State v. Diaz, 36 N.M. 284,13 P.2d 883. Public policy as reflected in the amendment to section 9, chapter 145, Laws 1925, does not permit him to go free because a merciful jury are unwilling by their verdict to visit the extreme penalty on him, and so find him guilty of a lower degree of the same offense.
I think the error, if any, in the submission of the issue of second degree murder, is not one of which the appellants may properly complain.