(concurring in part.)- — -In a prosecution for murder in the first degree alleged to have been committed from a premeditated design to effect the death of the person killed, where no conflicting or misleading specific instructions are given to the jury by the court, a charge is not erroneous which taken as a whole in effect instructs the jury that if from the facts and circumstances in evidence they believe beyond a reasonable doubt that the defendant unlawfully killed the person alleged to have been killed, and thnt such unlawful killing. was done by the defendant from a premeditated design to effect the death of the person killed, they should find the defendant guilty of murder in. the first degree. But in such a prosecution a charge that taken as a whole in effect instructs the jury that they may find a verdict of murder in the first degree for an unlawful killing of a human being doné from only a mere intent to kill the person killed, is erroneous; and if a verdict of murder in the first degree is rendered under- such a *123charge, a new trial should be granted, unless it clearly appears from a consideration of the entire evidence that no othér verdict could legally have been rendered, in which case no possible injury could have resulted to the defendant, and the charge would be harmless error.
In a criminal prosecution where a premeditated design is an essential element of the pífense, it is not ordinarily, in the absence of a proper request, incumbent upon the court to give to the jury a definition of the phrase “a premeditated design.” It is presumed the jury understand the meaning of a premeditated design. Lovett v. State, 30 Fla. 142, 11 South. Rep. 550. If, however, the court does give to the jury a definition of a premeditated design the definition should be accurate and complete as applicable to the allegations and proofs in the particular case.
A premeditated design may be something more than a mere intent. As used in the statute defining murder in the first degree, the .phrase “a premeditated design to effect the death” means a design to effect the death that was thought upon for any length of time, however short a time, before the act which effected the death from the premeditated design. The word “premeditated” has reference to, and is descriptive of, the design that the statute makes an essential element of the crime. A premeditated design to effect the death of a human being is a design to kill a human being, which design was thought upon before the act that unlawfully effected the death. The killer must have thought upon the design to kill during some time however short before the fatal act. The thought upon the design to kill may have been for any length of time considered by the jury from the evidence as being sufficient for the killer, under the circumstances of the particular case, to have had in his mind a premeditated design to kill a human being. There must have' been some time however short for *124thought, and there must have been thought upon the design to kill before the fatal act. -The fatal act may-have immediately followed the premeditated design to kill, but it must have been unlawfully committed from the premeditated design to kill. In defining the offense of an unlawful killing of a human being done from a premeditated design^ to effect the death of the person killed or any human being, the law fixes no particular length of time for the design to be premeditated or thought upon by the killer before the unlawful killing. So long as there was some' time for a design to kill a human being to have been premeditated or thought upon by the slayer before the unlawful fatal act, the sufficiency of the time is for the determination of the jury from the facts and circumstances in evidence in each case.
The essentials of a conviction for murder in the first degree charged to have been committed from a premeditated design to effect the death of the person killed or any human -being, are that there has been an unlawful killing of a human being by the accused, that the killing was done from a premeditated design to effect the death of the person killed or any human being. This requires that the accused shall have unlawfully killed the human being alleged, that such unlawful killing was done from a design to kill a human being, and that such design was premeditated or thought upon by the accused before the unlawful killing. It is for the jury, under proper charges, to determine solely from the facts and circumstances in evidence, whether there was sufficient time for the accused to have had in his mind a premeditated design to kill a human being before the unlawful killing alleged, and whether the accused had such premeditated design, and whether there was an unlawful killing by the accused of the person alleged, and whether such unlawful killing was done from a premeditated design to kill a human being. The *125jury should be instructed as to these essentials in all cases where the allegations and proofs make it proper.
When one paragraph of the general charge of a court to the jury contains a technically incomplete abstract definition of a word or phrase in common use, the meaning of which the jury are presumed to under-, stand, and such technically incomplete abstract definition is so given as not to confuse or mislead the jury, and in other paragraphs of the charge proper instructions applicable to the specific case are given to the jury by the court, and no conflicting or misleading specific instructions are given, the technically incomplete abstract definition is not reversible error. See Davis v. State, decided this term.
In defining premeditated design the trial court in its general charge in effect instructed the jury that premeditation is defined as meaning intent before the act, that design means intent and both words imply premeditation, that the premeditation must be of sufficient duration for forming “a distinct and conscious intent to kill.” 'By this the court evidently meant to charge the jury that premeditation is essential to the intent or design from which murder in the first degree is committed. The definition as given is purely abstract, and taken with the view here suggested, it is, even though technically incomplete, not misleading or confusing to the jury, and when taken in connection with proper specific charges upon the different grades of unlawful homicide applicable to the case, the definition as given would not be reversible error, at least in the absence of conflicting or misleading specific instructions in the case.
The opinion prepared by Mr. Justice Parkhill is concurred in except as here indicated.
The Chief Justice concurs in this opinion.
*126Cockrell, J. — The criticism directed against the charge taken from the opinion of this court in the Ernest case is confined to the idea that it reduces the statutory phrase “premeditated design” to a “mere intent,” and that such charge is erroneous irrespective of the nature .of the defense.
In the Garner case as in the Cook case this court unanimously held that a man’s mind may be so influenced by drink as to render him incapable' of premeditation, and in such exceptional cases he may “intend” to kill without the reasoning capacity that can rise to the dignity of “premeditation.” A general charge is not subject to criticism because it does not provide for every possible exception.
It is objected that the charge eliminates the idea of premeditation and substitutes therefor a “mere” or “simple” intent; it is admitted that" design and intent are practically synonymous. A correct analysis of the charge presents to my understanding another meaning; it retains the premeditation required by the statute and does not at all eliminate it.
Had the charge stopped with the clause “Premeditated design to kill means an intent to kill,” the criticism might go unchallenged; but it cannot be so isolated. That part of the charge may be said- to differentiate to the minds of the jury the crime of murder from accidental killing, and it proceeds at once and in the same sentence to tell them that the “intent to kill” the court is speaking of has within its meaning the idea of premeditation, that is, implies premeditation. The sentence immediately following tells them that in order to find the existence of premeditation that they must find that sufficient time elapsed to enable the slayer to form a distinct and conscious intent to kill. Is this eliminating from the statutory crime the idea of pre*127meditation and presenting as a substitute a “mere” or “simple” intent to kill ?
While the charge may not be ideal, I do not consider it seriously objectionable. It came originally from the supreme court of Wisconsin which has the identical statutory definition of murder in the first degree and since the decision of the Ernest case in 1883 has been a favorite charge of the circuit judges as an examination, even the most cursory, of the records of this court will show. See Com. v. Tucker, 189 Mass. 457, 76 N. E. 127, 7 L. R. A. (N. S.) 1056.
To say that a general charge to the effect that one who having a distinct and conscious intent to kill does kill, deprives the jury of a due consideration of whether the man of ordinary intelligence and reasoning power must premeditate before forming that distinct and conscious intent to kill a human being, is to my mind an over-refinement. No distinct and conscious intent to kill a human being can be formed by the average man of ordinary intelligence and perception without some premeditation, and as a general proposition in the domain of mind study, I can see no flaw in it. If the peculiarities of the mentality of the slayer at the time of the homicide call for an exception to this general proposition, it may be given in a separate charge; but this exception does not destroy the general rule.
On the other questions discussed, I concur in the opinion prepared by Judge Parkhill.