The testimony of State witness Higgins' of the conversation had between him and the defendant’s father was hearsay, and ought to have-been rejected. The previous effort of the defendant to impeach the Antness by asking him if he did not, át that time and place, make a particular statement contradictory of Av'hat he had testified on the stand, and the simple denial *5of the witness that he had made such a statement, not going into the supposed conversation at all, did not authorize the State to prove the statements really made by the witness in the conversation. The time for the State to consider what further right it had to bring out what the witness had said in the conversation was not until the introduction by the defendant of other impeaching proof showing that he did make the contradictory statement inquired about. Having denied that he made such statement, he stood unimpeached, until by evidence introduced by the defendant, which the jury believed, it was shown that he did make it. The State could not support the character of its unimpeached witness in that way. The court erred in allowing the evidence. — 1 Greenl. on Ev., §467.
The court, in its oral instructions to the jury, made this statement: “Murder in the first degree is any willful, deliberate, malicious and premeditated killing of a human being. Willful means governed by the will, without yielding to reason. Deliberate means formed with deliberation, in contradistinction to a sudden, rash act. Malicious means with fixed hate, or done with wicked intention or motives not the result of sudden passion. Premeditated means contrived beforehand or designed previously. To bring the crime within this degree of homicide all these qualities must co-exist, and they may all be grouped under the very expressive phrase ‘formed design.’ ” The defendant excepted to the Avords, “and they may all be grouped under the very expressive phrase ‘formed design.’ ”
It is settled by many decisions of this court that the instruction copied, omitting the part excepted to, correctly defines murder in the first degree, under our statute, and until some recent rulings overturning Mitchell v. State, 60 Ala. 28, and other cases which followed it, it was recognized that the term “formed design” was an embodiment of these several essential elements; and it was for a long time customary so to inform the jury in murder trials. But, the recent cases of Hornsby, 94 Ala. 55; Domingus, Ib. 9; Miller, 107 Ala. 40, and Burton, Ib. 108, modified that rule and held it to be error to tell the jury that “formed design” included all the elements of murder in the first degree, and such must now be regarded as the rule of this court. It is probable the *6trial''judge was'inadvérteilt':tb' these later’’decisions at the’ time the''instruction wás'gryeh! ;Ás the', judgment must hé reversed'for another error; we ’will hot’’'decide whether the words’fexcepted tó were'not so connected with the preceding correct’ definition of'murder in the first degreeas ';to come within the discretionary'power of this court,’ donfér’red hy'th’e ’laSt’’ clause" of section 4333' of the Code Of: 1896.
The cofirt ruled- correctly in its several - instructions on the burden’afid'measure-of proof resting upon/and required Of, the'defendant, on'his plea'of''insanity. '
The following authorities lay down the rule prevailing in "this State: Boswell v. State, 63 Ala. 307; Ford v. State, 71 Ala. 385; Parsons v. State, 81 Ala. 577; Gunter v. State, 83 Ala. 96; Maxwell v. State, 89 Ala. 150; Fonville v. State, 91 Ala. 39; Walker v. State, Ib. 76. It is thus too firmly fixed to be now opened üp ás questionable. Our statute’ Our the subject is in accord with the principle, and can not be said' to invade any ‘constitutional right of the defendant in imposing fipofi him the burden of proving the pleá of'insanity,' if,, indeed, such would have been its effect had our rule of decision been otherwise.
Homicide m’ay be committed in the heat of passion suddenly aroused by a blow, and yet be doné maliciously. Suddenly aroused passion and malice may coexist, and both' cause the act. When this is the case the homicide, otherwise indefensible murder, is not reduced to manslaughter by reason of the passion. — Ex parte Brown, 65 Ala. 446; Jackson v. State, 74 Ala. 26; Prior v. State, 77 Ala. 56; Hawes v. State, 88 Ala. 37; Reese v. State, 90 Ala. 624; Hornsby v. State, 94 Ala. 45. But the charges touching the law of manslaughter which the court'refused to the defendant, we think, excluded the existence of malice, correctly defined manslaughter, and ought to have been given.
For the errors pointed out the judgment' is reversed, and the cause remanded. The defendant will remain in custody until discharged by due course of law.' '
Reversed and remanded.