The counsel for the prisoner moves for a new trial, on the ground that the verdict is against evidence, and that the facts proven only warranted a conviction for manslaughter. Upon the trial of the cause, the jury were fully instructed as to the distinction between murder and manslaughter, and they were also told in what cases the killing of the deceased could be justified or excused. To the charge no exceptions whatever were taken, and the jury was also charged as requested by the prisoner’s counsel on all these points. There can be, therefore, no ground for asking a new trial for errors of law in the judge’s charge. The only question, therefore, proper for me to consider upon this motion is, whether the facts as proven will sustain the verdict finding the prisoner guilty of murder. I feel very much at a loss to draw any distinction between this case and that of Shorter (2 Comst., 193). In that case the parties engaged in a sudden affray in the street. Uo one interfered. After several blows, the deceased discovered that Shorter had a knife, and retreated. The prisoner followed him, and blows passed between them until he got to the middle of the road, when the deceased fell and died. There was no positive evidence of blows by the prisoner with the knife; but upon evidence that the prisoner carried a knife, and that the deceased had several wounds on his body, given by a knife, the prisoner was convicted of murder, and that conviction was sustained. In the present case, the evidence against Shay is of a more positive character, and if the case of Shorter was one justifying a charge of murder, there can be no doubt but that the facts in this case would warrant a similar verdict. The deceased and one Smith were quarreling *352and Shay interfered. He struck the deceased the first blow on the head; this blow was returned by the deceased, who then retreated, followed by Shay. Shay secretly opened his knife, which led the deceased again to strike at Shay, and again to retreat. There is evidence that the deceased at that time had nothing in his hand, and some evidence from Corbel that he had a knife. The latter evidence, both from the character and the appearance of the witness, I think the jury might have very properly refused to believe. The question of fact arising thereon was left to the jury. After this Shay struck at the deceased with a knife, and cut him in the face with it. The deceased continued to flee, and Shay was approaching the deceased when .Kirby ran in between them. The prisoner struck at Kirby with the knife, who jumped out of the way, and the prisoner then followed the deceased. One of his brothers called out to him to take care, or he would be killed, and as the deceased looked around to see his danger, the prisoner struck the knife into his temple with such force as to render it so fast there that with three attempts to pull it out made by the prisoner, he was unable to do it, and he then fled, leaving the knife sticking in the head of the deceased. Under these facts the question was submitted to the jury, whether the prisoner, before striking the last blow, had formed the determination to take the life of the deceased ? The facts, in my judgment, were fully sufficient to warrant said conclusion. He was the aggressor. He used a knife when the deceased had none; he opened the knife secretly. After the blow he gave had been returned, he pursued the deceased; he threatened and attempted to stab Kirby who interfered; he again pursued the deceased while running, and he struck such a blow as no one would have struck in such a place if he had not determined to take life. In Shorter’s case, the Court of Appeals held, that under such a state of facts, the question whether the homicide was justifiable or not, could not arise, and there was no color even for submitting that question to the jury, and that where the proper instructions were given to the jury between murder and manslaughter, and the jury found the prisoner guilty of *353murder, the judgment should be affirmed. In The People v. Clark (3 Seld., 394), which was a case similar to this in the interference between others who were engaged in a conflict, the court say, “If there be sufficient deliberation to form design to take life, and to put that design into execution by destroying life, there is sufficient deliberation to constitute murder, no matter whether the design be formed at the instant of striking the fatal blow, or whether it be contemplated for months. It is enough that the intention precedes the act, although that follows instantly.” So also in The People v. Sullivan (3 Seld., 396).
Motion for new trial denied.