(dissenting). When Patrolman Cunningham came to the police station cell of the defendant a few moments before Sergeant Dunney was shot, the defendant said to him: ‘ ‘ Get out of here * * * or I’ll ¿11 one of you * * * policemen.” When Sergeant Dunney came to the cell immediately before the shooting, the defendant said to him “ Get out of here or I’ll get you ’ ’. As Sergeant Dunney came into the cell the defendant immediately began to attack him, and in the struggle seized the *38038 calibre revolver from the holster and shot, not one, but three successive bullets into his body. The jury could have taken this version of the disputed events. The firing of three bullets from such a gun requires repeated and sustained physical effort.
It may well be that the threat to “ kill ” a policeman if one came into his cell was a mere idle threat without then a known opportunity; and it may be reasonably argued that defendant would not'expect that he would be able to get hold of a policeman’s gun from a holster or have opportunity to use it.
But the plainly expressed purpose of the defendant to kill a policeman if one came into his cell could be taken as indicating the formation of an intent to do just that if he had the opportunity; and this added to the further threat in close sequence to “ get ” the sergeant when he came to the cell and the actual and successful seizure of the opportunity by getting hold of a deadly weapon and the firing of it enough times into the body certainly to effect death in the usual case could, all together, be taken as indicating the formation of a deliberate purpose to kill.
When this sequence of events can be argued reasonably one way or the other, the question of premeditation is for a jury. This all undoubtedly occurred in the intensity of great excitement and tension; but a deliberate intent to kill is murder in the first degree even if it is formed in an excited state of mind. Murder is not exclusively the product of mental coolness. The intensity of excitement and its effect on the deliberateness of purpose, when they are open questions, as they seem here to be, are for the jury under our traditional method of trial.
The Judge instructed the jury with accuracy and completeness the rules governing consideration of premeditation. The time, he charged in the words of a noted case, must be sufficient “ for some reflection or consideration upon the matter, for choice to kill or not to kill and for the formation of a definite purpose to kill ”. He adverted to the celerity with which the human mind might sometimes operate to form such a purpose.
This is a fair statement of the rule. He added in context that the “ state of the defendant ” with regard to “ possible intoxication can also be considered by you in determining his intent ’ ’. This left it open to the jury to weigh into consideration on the question of premeditation whether intoxication, if it existed, did adversely affect the capacity of defendant to premeditate and to form an intent to kill.
The Judge then made a general observation that “ a person cannot deliberately drink himself out of reason and thereby *381absolve himself of responsibility under the law ’ This observation is correct enough in some situations; but it is not apt in relation to the formation of a purpose or intent; for if a man is too drunk to deliberate on killing he cannot be convicted of murder in the first degree even though his intoxication was willful.
But such a statement as this would be harmful to the extent which would warrant a'reversal only if there were an issue between the parties whether defendant was or was not too intoxicated to form a purpose to kill. There was no such issue here. The issue was merely whether the defendant perpetrated an unprovoked assault in pursuance of a formed intention to kill, as the People claim; or whether, as defendant claims, he was protecting himself against assault and the gun went off accidentally.
He does not argue, as I read this record, that he was not guilty because he was too drunk to form an intent on which guilt could rest; he argues, rather, that he was not guilty because he was protecting his person from a beating by a policeman with a gun and the gun went off in the struggle without any intent or purpose. In such a case the intoxication aspect of the law has no direct application and it need not have been charged or considered at all by the jury.
This becomes more manifest when, by examination of the thorough brief presented by counsel on appeal, no complaint whatever is raised in respect of the adequacy or accuracy of the charge in this respect. Counsel on the trial submitted a large number of requests in writing to the Judge to aid in instructing the jury; none dealt, as far as the record discloses, with the need in this case to instruct the jury on the subject of intoxication. The exception that the defendant took to the Judge’s charge on intoxication was not that the charge was improper in this general sentence about deliberate intoxication; but rather that “ intoxication ” is a subject that “ must ” be considered by the jury, rather than a subject that “ can ” be considered.
It is reasonable to think that at the end of the whole charge this is the way counsel, who had listened to the charge, and the Judge, who had given it, understood it. The error, not touching any vital point in issue between the parties, must be treated by us as unsubstantial.
The judgment should be affirmed.
Imbie, J., concurs with Halpebn, J.; Fosteb, P. J., concurs for reversal, on the law, solely on the ground that the charge of the trial court on the subject of intoxication was inadequate and *382erroneous. Bergan, J., dissents and votes to affirm in an opinion in which Zeller, J., concurs.
Judgment of conviction reversed, on the law, and a new trial ordered.
Settle form of the order on notice. [See post, p. 972.]