Dissenting. — I am unable to concur. The majority opinion quotes instruction No. 23, and it will be unnecessary to repeat it here. In my opinion, the giving of this instruction was prejudicial error. Under C. S., sec. 8997, the jury has the absolute right to find a defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment, or of an attempt to commit the offense. Therefore, where the charge upon which a defendant is being tried is first degree murder, the jury may bring in a verdict of guilty of murder in the second degree or of manslaughter. It is essential under such circumstances that the jury be correctly *635instructed as to the distinctions between the degrees of homicide.
The statement contained in instruction No. 23 that “it is sufficient if it appears from the evidence beyond a reasonable doubt that there was a design or determination distinctly formed in the mind of the defendant at any moment before or at the time the blow was struck or the killing took place,” is not merely an inaccuracy in an instruction defining first degree murder. It excludes the necessary elements of deliberation and premeditation. It abolishes the distinction between first and second degree murder, and between murder and voluntary manslaughter.
"While it is true that there are decisions of courts of high standing, which are entitled to great respect, sustaining such an instruction, or one in substance and effect the same, the authorities are not uniform in upholding it.
In the case of State v. Clayton, 83 N. J. L. 673, 85 Atl. 173, we find the following:
“Upon the question of murder in the first degree, the following instruction to the jury is brought before us upon error assigned on a bill of exceptions: ‘If the shooting was done with deliberation and premeditation, if you find that beyond a reasonable doubt as I told you, then the crime is murder in the first degree. Now, as to the premeditation and deliberation, there need be no particular interval of time, as I told you. The human mind acts so quickly that if you find that this man shot, and had the interval of time, however short, to form that intention, it is enough if he formed the intention and carried it out. That is what is meant by deliberation in the law.’
“Of the error of this instruction there can be no doubt. In so far as it instructed the jury that the formation and execution of an intention to kill was what was meant by deliberation in the law it was directly opposed to what we decided in State v. Deliso, 75 N. J. L. 808, 69 Atl. 218; and in so far as it instructed them that the interval of time, however short, required to form the intention to kill included sufficient time for premeditation and deliberation, it was op*636posed to what we decided in State v. Mangano, 77 N. J. L. 544, 72 Atl. 366, as well as to the plainest dictates of reason, for, however brief may be the interval of time required for the performance of any one of the three mental acts involved in murder in the first degree, viz., premeditation, wilfulness (i. e., intention), and deliberation, the fact remains that they are not only distinct mental acts, but also that one succeeds another as was pointed out in State v. Deliso. They cannot therefore be synchronous as is implied in this instruction.” (See, also, Donnelly v. State, 26 N. J. L. 601; State v. Bonofiglio, 67 N. J. L. 239, 91 Am. St. 423, 52 Atl. 712, 54 Atl. 99; State v. Deliso, 75 N. J. L. 808, 69 Atl. 218; Nye v. People, 35 Mich. 16; State v. Banks, 143 N. C. 652, 57 S. E. 174; People v. Long, 39 Cal. 694; Ross v. State, 8 Wyo. 351, 57 Pac. 924; Fahnestock v. State, 23 Ind. 231; State v. Phillips, 118 Iowa, 660, 92 N. W. 876; Parker v. State, 24 Wyo. 491, 161 Pac. 552.)
The instruction should not be sanctioned in this state, especially in view of the fact that a verdict of guilty of murder in the first degree may carry with it the death penalty.
Instruction No. 33 is also quoted in the majority opinion. This instruction is clearly erroneous, since proof of contradictory statements made out of court is sufficient to impeach a witness, without a further finding by the jury that such statements were wilfully and intentionally false. (C. S., sec. 8039.) This instruction in very many cases would deprive a party of the benefit gained by the impeachment of a witness, and might be highly prejudicial.
Lee, J., concurs in the dissenting opinion.Petition for rehearing denied.