I dissent. — As to the irregularities and misconduct of the jury they were probably not sufficient to justify the superior court in granting a new trial. What drinking of intoxicating liquors was done occurred during the various recesses and adjournments of the court prior to the submission of the cause. It was slight in amount, and seems to have produced no perceptible effect. The worst feature *499of it was the secrecy with which it was done, the efforts at concealment manifesting a consciousness on the part of the offending jurors that they were violating their duty. But since it does not appear that any juror was intoxicated or sensibly affected by what he had taken during the trial, or that there was any drinking after the cause had been submitted to the jury, the court was justified in holding that the defendant had not been prejudiced. The reading of the newspaper reports of the trial was a violation of the admonition which the judge is required to give to the jury at each recess or adjournment of the court, not only by the offending jurors but by the officer in charge. As to thise irregularity, however, as well as the other, it may be safely concluded that the defendant was not prejudiced because the reports so read consisted merely of a fair and truthful statement of the evidence given in court, and of the line of defense. It was, nevertheless, serious misconduct on the part of the jurors to disregard the admonition of the court, and it is no merit in them that what they read happened to be of a character which the court can hold to have been harmless. If, as well might have happened, it had been of a different character, their misconduct would have necessitated a new trial.
BTeither do I think that the judgment or order appealed from should be reversed because of the oral instructions to the jury given by the court in the absence of the official reporter. But my views upon that point differ radically from those stated in the opinion of the court, and because I think the decision, as it stands, will lead to mischievous consequences, I feel bound to state the reasons for my dissent. It is, to my mind, clear from the record in this case, and that part of it copied into the opinion of the court, that the trial judge did orally instruct the jury in the absence of the official reporter. The jury came into court, and, by several questions, sought information for their guidance in finding a verdict. These questions were answered, *500and the answers so given, taken in connection with the questions, were instructions. It is true these instructions, as set forth in the bill of exceptions, were correct and proper. But this does not cure the error. The error consists, and is complete, in giving the oral instructions in the absence of the official reporter. (People v. Hersey, 53 Cal. 575.) The object of the statute in requiring the instructions of the court, if not in writing, to be taken down by the reporter, is to insure defendant the means of getting a correct statement of the charge really given, and this object would be completely frustrated if the judge, who has orally charged the jury in the absence of the reporter, could cure the error by putting into the bill of exceptions a correct charge. The case of People v. Cox, 76 Cal. 281, does not overrule People v. Hersey, 53 Cal. 575. There the reporter was present, and engaged in taking down the charge while it was being delivered. And the bill of exceptions showed that he had taken down the whole charge, omitting only a few words “ leading up to and in no way touching upon” the charge which was given.
The substance of the decision is that the court does not err in giving an oral charge when the reporter is present, and that, if the reporter fails to perform his duty to take it down fully and correctly, the judge may, nevertheless, put into the bill of exceptions what was actually said, and that the fault of the reporter will not be imputed as an error to the court. But there is a vast difference between the case in which the reporter is present, with the opportunity of performing his duty, and apparently engaged in its performance, and the case where he is absent, and necessarily unable to take down the charge.
In delivering an oral charge in the absence of the reporter, the court, by its own act, makes it impossible that the defendant shall be secured in his rights; and this is necessarily an error of the court. In the other case the reporter alone is at fault. In the Cox ease it was merely held that such a fault on the part of the *501reporter is not necessarily fatal; but it is not questioned that it would have been fatal if the court had committed the error disclosed in People v. Hersey, 53 Cal. 575.
If it be said that this is a distinction without a difference, that a defendant may be as greatly prejudiced b3 the incompetence or inattention of a reporter who is present as by the fallible recollection of a judge, I answer that, while such a thing is possible, it is not probable. In the vast majority of cases the court, with the aid of the reporter's notes, however imperfect, will be able to restate his oral charge correctly. Without any such notes it would rarety happen that it could be restated at the time of settling the bill of exceptions with substantial accuracy. The chance that a defendant may be prejudiced when the law is complied with is no reason for depriving him altogether of its protection. I cannot, therefore, concur in the views of the court upon this point. But, for a different reason, I do not think the defendant should be allowed to avail himself of this objection here. He was present with his counsel when the jury came into court for further instructions. He knew as well as the judge, and possibly better, that the reporter was not present, but he failed to call the fact to the attention of the court, or to make any objection, or take any exception at the time to what was said. If he had done so the court could have reduced its charge to writing, or could have sent for the reporter and had the questions and answers reported and by him taken down, together with an instruction to the jury to regard only what was said in presence of the reporter.
This course would have secured to the defendant all the rights which the statute was designed to secure him. Having failed to object then, I think he should not be heard to object now. I am not unaware that many of the former decisions of this court, made under the old statute before the adoption of the code, held that the giving of oral instructions, although unobjected to at the time, was fatal error on appeal; but I conceive that *502these rulings were based upon the mandatory terms of the statute as quoted in People v. Sanford, 43 Cal. 35. Since the adoption of the codes I think the law as thereby amended (Pen. Code, sec. 1093) does not require so strict a construdtion, if it ever did. At all events, while I am willing to go to the extent of holding that a defendant cannot assign error upon the giving of an oral instruction in the absence of the reporter, unless it appears that he objected at the time and reserved his exception, I am not willing to say that such disregard of the statute by the court, when objected to, can be remedied by making it appear in the bill of exceptions that the charge so given was a very small matter and in fact correct; for this defeats the whole object of the statute.
There is a point, however, upon which I not only dissent from the reasoning of the court, but also from the conclusions and the judgment.
The defendant was tried upon a charge of murder, convicted of murder in the first degree, and sentenced to death.
In every charge of murder the distinction which the law makes between murder in the first degree and murder in the second degree is most clearly material, and an instruction to the jury to disregard evidence which ought to be considered in determining the degree of the crime is necessarily erroneous. And, if the instruction is to disregard evidence tending to prove the lesser degree, such an instruction is not only erroneous, but is also prejudicial to a defendant who has been found guilty of the higher degree.
In this case all the evidence went to show that the killing was done under the influence of anger caused by insulting language addressed by the deceased to the defendant in the presence and hearing of female members of his family. The provocation was not in law sufficient to mitigate the offense to manslaughter, and the time elapsing between the provocation given and the fatal blow was probably sufficient to have cooled the *503passion of a reasonable man, for which reason also the crime was not mitigated to manslaughter. But when an unlawful killing is actually the result of that sudden and violent impulse of passion which is supposed to exclude deliberation, it cannot be murder of the first degree, notwithstanding the inadequacy of the provocation or the lapse of cooling time. These are merely grounds for implying the malice essential to the second degree of murder. While in murder of the first degree (except when perpetrated in the commission or attempt to commit arson, robbery, etc.) there must be that express malice which consists only in the deliberate purpose unlawfully to take away the life of a human being. For this reason it is everywhere held that the voluntary intoxication of the slayer may be considered by the jury for the purpose of determining whether, under the circumstances, the killing was deliberate and premeditated, and this notwithstanding such intoxication is not an excuse for any crime. Although not an excuse for the commission of a criminal act, the character of which is not dependent upon the state of mind of the perpetrator, it is admissible where such state of mind is an element of the offense for the reason that it has a tendency to disprove the necessary state of mind.
If this is true as to voluntary intoxication it must be true a fortiori as to partial insanity. A person may fall far short of that degree of insanity which exempts him from criminal responsibility, and may yet be in a condition mentally which a jury ought to consider in determining whether he has committed a homicide with express and deliberate malice.
This, in my opinion, is precisely such a case. There was much evidence as to the defendant’s sanity, the result of which was to show that, while he was not insane to the extent of not knowing what he was doing or that his act was a crime, he was nevertheless to some extent mentally unsound as the result of long-continued abuse of intoxicating drinks, that he was easily excited *504to violent anger, and in short that he was not in that respect a reasonable man.
In view of this evidence I think the giving of the following instruction was manifest error: “If the defendant was so far in the possession of his mental faculties as to be capable of knowing that the act of killing was wrong, any partial defect of understanding which might cause him more readily to give away to passion than a man ordinarily reasonable cannot be considered for any purpose.”
And, the defendant having been convicted of murder in the first degree, the error is. as manifestly injurious.
For this reason I think the judgment and order should be reversed.
Rehearing denied.