(dissenting):
Under the Bevised Statutes murder was killing, perpetrated from a premeditated design to effect death. Manslaughter in the first degree, killing without a design to effect death, while, etc. Under the Code,- murder m the first degree is killing, when committed from a deliberate and premeditated design to effect death; in the second degree, when committed with a design to effect death, but without deliberation and premeditation. I cannot but think that the decisions of the courts have gone far to abolish the distinction which the legislature intended to make by the emphatic, adding of deliberation" to 'premeditation." When it is said that such design must precede the killing by some appreciable space of time, but the time need not be long„ that the mind works with a. celerity which it is impossible to measure and the like, it appears to me that the distinction of the statute is practically ignored. An opinion of a court which was reached with such celerity of the •working mind that only a mere “• appreciable space of time " should intervene between the argument and the decision, would hardly be called a deliberate and premeditated opinion. And m this very case an act done by the prisoner was. on the former trial, pronounced *429to be deliberate and premeditated, winch was performed ift S.o.short a time that, if it had been any other act than that of taking human life, it would have been called hasty and not deliberate,, suddenly conceived and not premeditated. And if the learned fudges' who affirmed the former conviction; had 'taken no. moro time to consider the case than the defendant took, according to .the testimony, to do-the act, they would not have thought that] they were acting -with deliberation and premeditation. Murder by poison or lyinginwait. is almost necessarily deliberate and premeditated. Murder committed during a quarrel or a fight is not? in any fair or reasonable meaning oí the words. And if it be said that one may deliber ate, about an. act and premeditate it in any such- brief time as- a second or two, a mere space of time than that can be appreciated, then it, seems to me that the true meaning of words is disregarded. And I think that the decisions on tbe statute, as it now stands, show an unwillingness to accept its merciful and humane consideration for hasty and suddenly conceived crime. But we must take the decisions as they are, trusting that a jury, when they deliberate on their verdict, will understand the meaning of that word
In considering this ease, I assume that Yandercook was killed; that he was killed in Beckwith’s cabm and by Beckwith’s hand; that Beckwith had at some previous time threatened to take Yan-deicook’s life: I even assume that Beckwith's attempt to conceal the body and his flight are some evidence that he thought he had committed some crime. What is there in all these facts that is not as consistent with the theory that the crime was murder in the second degree or manslaughter in the first degree, as with the theory that the crime was murder in the first degree ? Where is the proof of the deliberate or premeditated design for even one second before the killing 2 Where is the proof of the design to. effect death at all? Tlie blow from the knife was not immediately fatal, if at'ail; It might have been given with a design to kill, but- without deliberation or premeditation. It might have been given m the heat of passion. What right have we to say that it was not sc given ? The fact that it was given upon the back. does not show that it was not m the heat of passion. The previous threats snowed bad feeling. And if there had been any proof that Beckwith had induced Yandercook to cometo bis cabin on the occasion, then it *430might bo said that such proof showed deliberation and premeditation. But nothing of this kind appears Yandercook may even have been an intruder and unwelcome He may have come to irritate and abuse Beckwith Indeed it is given m evidence by the prosecution that Beckwith said that Yandercook burst the door open and got hurt; that they had a tussle and Yandercook got the worst of it,, Now there is nothing to contradict or discredit this statement of Beckwith; put m evidence by the prosecution
Undoubtedly, previous threats may qualify and give a character to the circumstances which surrounded the killing But in this case we do not know the circumstances. The killing may have been done in the heat of passion, without design to effect death, or even m self-defense , so that the threats (which really seem to have been idle talk) do not characterize any circumstances. If Beckwith had provided 3, weapon, if he bad lain m wait, if he had sought Yander-cook, then these threats would have had force. Two axes were found , one had hairs on it, the other flesh and blood. But. it does not appear that these were used m killing Yandercook- The mutilated condition of the body sufficiently accounts for the appearance of the axes The mutilation was done after death I am unable to find, and I am not referred to any evidence tending to show, that Beckwith struck Vandercook, while living, a blow with an axe. In this respect the present case differs from the case as it was on the former trial Then evidence was given by Beckwith himself that he killed the deceased by the blow of an axe So it is stated by the Court of Appeals, and they say “the axe was wielded with a settled design to kill" And on this deliberate selection and use of this weapon the decision of that court largely rested,, (People v Beckwith, 103 N. Y, 365.) No such evidence is now before us
This is a case m which there is dangex that the feelings of the jury and of the court may be excited by the mutilation committed on the body of the deceased, evidently for the purpose of conceal ment., But the crime had been completed before this mutilation was done. The mutilation is shocking to our sensibility and to our respect for the dead, but it does not affect the degree of the crime. An attempt to conceal evidence is some indication of guilt; yet even a person conscious of innocence may fear the result of a trial *431At any rate, the crime was done when Yandercook was killed. Whatever followed, however shocking, should not disturb our calm judgment, nor convict Beckwith of a crime greater in degree than the proof justifies We have no right, nor had the jury, to find premeditation and deliberation without evidence; and that evidence must show that the very act of killing was done with a deliberate and premeditated design to effect death. £i An act co-existent with and inseparable from a sudden impulse, although premeditated, could not be deliberate, as when under sudden and great provocation one instantly, although intentionally, kills another ” But the statute is not satisfied unless the intention was deliberated upon. (Leighton v People, 88 N Y., 117.) There must, then, be evidence on which the jury could find that Beckwith not only intended to kill, but deliberated on that intention I do not see such evidence m the case And here it must be noticed that the court charged the jury that, in proving the statement made by defendant as evidence of the killing of Yandercook by the defendant, the people are bound by defendant’s narrative in the same statement of the fact that such killing occurred m a tussle, which followed Yandercook's breaking into the cabin, unless that circumstance is proved untrue by other proof; and further that, with the fresh provocation of Yander-cook’s breaking into the cabin, proved m this case, the jury have no right to find that the killing was upon any previous malice. The jury, therefore, was instructed to find that the killing was not of any previous malice, but occurred in a tussle which followed Yandercook’s breaking into Beckwith's cabin They must then have found the deliberation and premeditation from something which happened between the time when Yandercook burst into the door and the time when he was killed As above remarked, there is no evidence of what took place then, except the fact of a stab with the knife
It seems to me that the judgment should be reversed, and a new trial granted upon the facts.
Judgment and conviction affirmed.