dissenting.— I dissent. Instruction No. 20 —the only one about which there can be any serious question—tells the jury that if, from the evidence, they believe certain facts and circumstances (enumerat*536ing them), under which the prosecution claimed the homicide to have been committed, and that appellant, “ without further cause or provocation,” then killed the deceased, he was guilty of murder in the first degree. This kind of instruction is not commendable, and is at best hazardous. The particular objection in the present instance is that the elements of deliberation and premeditation were not expressly stated in the instruction. But the court, in other parts of its charge, had fully and in various forms of language instructed the jury about the difference between murder in the first degree and murder in the second degree; and that to constitute the former the killing must be willful, deliberate, and premeditated. For instance, the court, among other instructions, gave the following: “It therefore becomes necessary for me to define what is necessary to constitute murder in the first degree, with reference to the willful, deliberate, and premeditated killing.....The killing must have been willful, which implies simply a purpose or willingness to do the killing; 4. It must have been the result of deliberation; that is, it must have been done after the slayer had considered and weighed the matter in his mind; and 5. 'It must have been premeditated, — that is, preconcerted and planned, and meditated beforehand. And each one of' these elements must be proved by the prosecution beyond a reasonable doubt. The law does not imply deliberation and premeditation. That must be proved by the prosecution affirmatively, and beyond a reasonable doubt. And if you find that any of these elements is wanting in this case, or if you have a reasonable doubt as to the existence of any of these elements from the evidence, I charge you that you cannot find a verdict of murder in the first degree.” This language states the law most liberally in favor of appellant.
The facts grouped and enumerated in said instruction 20 were all facts about which there was evidence, and *537which the jury might well find to he true. There was evidence that appellant had previously threatened to kill the deceased, for the very reasons which the prosecution claimed he did kill him. Keeping in view, therefore, the evidence and the previous instructions, and assuming that the jury found all the facts enumerated in said instruction 20 to be true, and that, “ without further cause or provocation,” appellant killed the deceased, I do not see how the jury could have been misled, or could have come to any other conclusion than that the appellant was guilty of murder in the first degree. The proposition presented to the jury, under these circumstances, necessarily includes the elements of deliberation and premeditation, although those or equivalent words were not expressly used in the particular instruction complained of. In People v. Moice, 15 Cal. 331, an instruction similar in principle was affirmed.
I think that the judgment and order should be affirmed.
Searls, O. J., concurred with Mr. Justice McFarland.