The prisoner, a life convict, was convicted of murder in the first degree for killing a fellow-convict, Williams, at the Sing Sing state prison.
Two exceptions were taken to the charge of the court. It is urged that it was error to charge “ that no length of time is required ” previous to striking the blow in which to premeditate and deliberate. If it were conceded that such a statement standing by itself were erroneous, I do not think the exception- here well taken. The expression was'not a single isolated proposition *413submitted to the jury, but must be construed in connection with the whole contents of the charge on that point. The district attorney asked the court to charge in the language above given. “By the court.—I will charge that no particular length of time is required, but that no time is required I will not chai -ge. (Defendant excepts). Mr. Baker.—I mean no appreciable length of time. The court.—I will charge that no length of time is required, but there must be deliberation and premeditation. (Defendant excepts).”
Taking all of this together, the charge was unobjectionable in my opinion. In effect, it was that no particular time was necessary, provided there was deliberation and premeditation. Upon being requested to charge that the word “ deliberate ” has a different meaning and signification from the word “premeditated,” the court said: “ 1 suppose there is a slight shade of difference; I will so charge.” To the first statement the prisoner excopted. We think there is substantial difference between those two terms as used in the statute. But we think no question was raised by the exception. The court charged as required.
It had already defined the meaning of these terms accurately. If the prisoner wished such definition made with greater minuteness, there should have been a direct request to that effect. We think, therefore, neither exception tenable. But the question is presented to us, a motion for a_new trial having been made, that the verdict is against the evidence; that is, that there was no sufficient evidence of deliberation to justify the conviction in the first degree. Formerly in criminal cases courts could not grant new trials on such ground. How by the express terms of the law a motion for that purpose can be made, and an appeal from the judgment brings before us for review the decision of such motion as well as the proceedings upon trial. The power of interfering with the verdict in a criminal case is doubtless to be exercised with caution, especially where the question of fact to be determined is one incapable of direct proof and only to be established by inference from other facts. The old decisions denied not only the- power but the propriety of vesting such power in the courts; but the legislature having cast upon the courts such duty, we are bound to exercise it. The history of this case is brief. There is little or no conflict *414between the witnesses or dispute as to the fact. Its salient features are beyond dispute. The deceased, one Cornetti (an Italian) and the prisoner were all at work in the prison peeling potatoes. Cornetti applied some opprobrious epithet to the ' deceased, upon which the deceased struck Cornetti with a stick. . Cornetti then seized a stick or stool and attacked the deceased.
While this altercation was transpiring, the prisoner picked up a broom and also attacked the deceased. One Coburn, a convict, but a sort of overseer over the others, slipped between the parties to stop the conflict, and' seized the defendant. A convict named Cash took the broom from the prisoner and thrust him aside the distance of two or three barrels, when the prisoner immediately took the knife which he had used in his work, rushed towards the deceased and struck him, inflicting the fatal blow. It was proved there was no dispute or ill-feeling between the parties prior to this occurrence. The whole affray lasted, according to one witness, five minittes; the others place it at from two to three minutes. The time that elapsed between the disarming of the prisoner by Cash and the striking of the blow with the knife was, according to One witness, “ half a second,” according to another it was “ instantly.” This is substantially the whole occurrence. How is there sufficient evidence in it to warrant the finding of the jury of deliberation on the part of the prisoner? It is true that such deliberation is incapable of proof, save as an inference from other facts. But that does not authorize the jury to arbitrarily draw such inference as they see fit. The facts must point to and warrant the inference, otherwise a verdict cannot stand. This undoubtedly is the rule in civil cases. It should hardly be less potent where life is involved. The inference is generally proved1 by the nature of the occurrence, the manner in which the crime is committed, the weapon, threats, or expression of hostile feeling toward the deceased, or preparation on the part of the prisoner. But this case seems barren of all such features. There is not ground even for suspicion that prior to the altercation the prisoner meditated an injury to the deceased. When the fight between deceased and Cornetti occurred the prisoner attacked the deceased, but with a weapon not calculated to inflict fatal or even serious injuries. For, while many blows were struck by Cornetti and the deceased, who *415were similarly armed, no serious results followed to either party.' When disarmed by Cash, the prisoner took from his person 'the knife, not possessed byJiim for any unlawful purpose, but used in the work in which he had heen engaged, and immediately stabs the deceased. The use of the deadly weapon and the thrust at the vital part would warrant the conclusion that the prisoner intended to take life, and therefore that the act was premeditated. But there is nothing to show deliberation, but on the contrary, the facts of the transaction negative that conclusion.
As we have said, there is a substantial difference between premeditation, and deliberation—a difference more readily appreciated than to be accurately defined. An apt statement is. to be found in the opinion of Judge Daniels in People v. Leighton, speaking of the elements necessary to constitute murder in the first degree, he says: “ The- execution of the guilty purpose is required to be settled and determined upon reflection, before the crime of murder in the first degree can be committed. A full and determined purpose is rendered necessary as distinguished from a mere impulsive fatal act.” ¡No particular period of time is requisite for the deliberation, but still deliberation must take place. We do not say that in no supposable case could deliberation be consummated in so brief a period as that occupied by the broil in which this crime was committed; but we do say that in this case there is nothing to show deliberation, but rather a passionate, vicious impulse. ' The result of these views is that the prisoner obtains practical immunity for his crime; for being a prisoner for life nothing, save a capital execution can increase his punishment. We can not but think that this consideration affected the verdict.' But the law recognizes no distinction between one in the condition of this prisoner and a free person. If it be necessary for the purposes of prison discipline, or to protect the lives, whether of keepers or convicts, that offenses committed by prisoners shall be punished more severely than those committed by others the remedy is with the legislature. The courts must carry out the law as they find it, and not strain it to punish even the greatest of offenders.
The conviction and judgment should be reversed and a new trial ordered.