The counsel for appellant, in their argument in open court, have abandoned the position taken in their brief, that the evidence in this case shows no graver crime than manslaughter; and they now urge that the evidence does not justify the verdict of murder in the first degree. That the killing was unlawful is admitted ; that it was malicious is admitted; but it is claimed that the evidence does not show wilfulness, deliberation, and premeditation, which are necessary to constitute murder in the first degree. The current of authorities undoubtedly establishes that there is a difference between a killing which is murder in the second degree, even when express malice is shown, • and such a killing as is wilful, deliberate, and premeditated, as well as malicious. In order that the unlawful and malicious killing shall be murder in the first degree, it must be wilful; that is to say, it must be intentional; and it must also be deliberate and premeditated; that is to say, when the killing is the result of an assault, the assault must have been made with the preconceived and determined design, intent, and purpose to kill, and the mind must be free from irresistible passion aroused or excited by great provocation. And it is also well settled that the deliberation and premeditation need not be of any considerable length of time previous to the assault. It is enough if the intent to take life was the result of deliberate premeditation, even though the act follow immediately upon the decision; provided always that the mind is free from sudden heat or passion. But how do all *28these refinements aid us in determining this question of deliberate and premeditated intent? Is murder in the first degree, other than that committed by torture, or poison, or perpetrated in the commission of a felony, to be confined to those cases where the accused declares his intent? Such a rule would be absurd. It would be open to two objections. The cases where the intent to kill is declared by the most depraved creature are not more rare than are those cases in which a declaration “ I will kill you ” is a declaration of any real intent to kill. The man who has fully determined to take away the life of a fellow-creature seldom declares his intention. The thoughtless declaration made by one during an excitement, or, as is more often the case, made carelessly, “that he will kill,” forms no sure test. The nature of the weapon may give some clew; but the res gestee of each case, the acts of the accused party before and at the time of the killing, form the surer test; and if a recitation thereof compels the mind of the listener to the conclusion that the assault was made with the wilful, deliberate, and premeditated intent to kill, then he may conclude that the killing was murder in the first degree. To such a conclusion the jury was forced in this case. To such a conclusion are the members of this court forced. The defendant arms himself with a revolver. He declares that trouble is awaitiug him; that he is indifferent to it; and that his life or the life of some one else will pay the forfeit. Thereupon, bent upon mischief, or at least inclined’ thereto, he enters a saloon, and, as he says, interests himself in Hakan’s quarrel, which is of no interest to him, but, as others say, finds Hakan, and tries to force a quarrel upon him, and fails. Near by another altercation is in progress, so slight that those standing there pay no attention to it, but keep passing to an fro, as usual. Into this altercation the defendant forces himself, is told to mind his business, and is pushed by the deceased, who is so recently aroused from the stupor of intoxication that he staggers backward as a result of his own act. The defendant then walks a few steps away, takes from his pocket the pistol which he placed therewith the remark that “some one might get killed,” directs the pistol at the stomach of the deceased, and shoots him. That is not all; he stands there with the pistol in his hand, and pointed at the deceased, until the latter falls. Then he departs.
*29We are forced to the conclusion that the defendant was seeking the occasion to which he referred in Wiegrun’s saloon when he displayed his pistol; that he tried in vain to force a quarrel upon Hakan ; that finding a quarrel elsewhere he forced himself into that, and there found the occasion to satisfy the remark he made when he placed the pistol in his pocket; that he shot in the furtherance of that remark; and that when he stood, pistol in hand, he waited to see if he had accomplished his purpose. The cases cited by the appellant do not present facts similar to those in this case. In some of them there was no weapon of a deadly nature used; in some there was great provocation; and in some there was a question of self-defense. Of the cases cited, counsel seem to place most reliance upon those found in Parker’s Criminal Cases. In the latest reports in the court of appeals of the same State will be found an authority, cited below, which, we think, is more closely analogous to the case under review.
In the case of the People v. Majone, 91 N. Y. 211, the testimony for the prosecution was to the effect that the defendant was living with his wife and with her parents; that he had not lived peacefully with them ; that upon the day of the killing he entered the room in which his wife, his mother-in-law, and a friend were sitting, and asked his wife to procure for him a paper from an adjoining bedroom; that she replied that she was busy; that he thereupon seized her by the arm and led her to the bedroom, saying, “Will you go, or will I go?” and immediately shot her. He came back at once, and shot and killed his mother-in-law. It was further shown that the defendant had had the pistol for some time. The defendant was indicted for the last killing, and was couvicted of murder in the first degree, and the conviction was sustained by the court of appeals.
In People v. Hunt, 59 Cal. 430, the facts upon which the jury convicted the defendant of murder in the first degree were as follows: The defendant entered a certain bar-room with one T., and began to shove T. backwards and forwards against the bar. G. (the deceased) stepped up to the defendant, and told him not to strike T. any more. Defendant turned partly around, and said: “What have you to do with this?” G. answered *30that he was a peace officer. The defendant then struck G., who turned and moved away; whereupon defendant drew his revolver and shot and killed G. The Supreme Court affirmed the order denying a new trial. It must be remembered that the killing was done without any provocation sufficient to reduce the crime to manslaughter; in fact, that counsel for defendant admit that the evidence would sustain a verdict of murder in the second degree.
Whether a murder is in the first or in the second degree is for the jury to decide from the facts under careful instruction upon the law by the court. (People v. Beckwith, 103 N. Y. 360-369; People v. Goslaw, 73 Cal. 323, 324; Territory v. Stears, 2 Mont. 324.) By this is not meant that the jury may declare every unlawful and malicious killing to be murder in the first degree, without any evidence of fact to justify them ; but what is meant is this, that where there is evidence tending to show that an unlawful and malicious killing was committed wilfully, deliberately, and premeditately, the verdict of the jury will not be disturbed by this court. In this case the conduct of the defendant before the killing, his declaration before referred to, his arming himself with a deadly weapon at that time, his forcing himself into quarrels, the use of the deadly weapon, the shooting the deceased in such a part of the body as would tend to make the wound fatal, the absence of provocation, the defendant waiting until .his victim had fallen, his rapid flight, and change of name, are evidence from which the jury, under instruction upon the law of the case, might well conclude that there was wilfulness, deliberation, and premeditation. (See the authorities cited. See, also, Wharton on Homicide, § 181, and cases there cited.)
It is urged that the court below erred in giving instruction No. 7, which is the verbatim copy of section 21 of subdivision 4, Compiled Statutes, defining murder in the first and second degrees. The concluding words of the instruction, as well as of the statute, are as follows: “And the jury before whom any person indicted for murder shall be tried shall, if they find such person guilty thereof, designate by their verdict whether it be murder in the first or second degree.” The purpose of this instruction is apparent. The court told the jury that it was the duty of the jury, and not of the court, to fix, by their verdict, *31the degree of murder, provided the jury found the defendant guilty of murder. The case does not fall within the rule cited by counsel, that, where a special instruction is given erroneously, the error will not be cured by a general instruction stating the correct rule. The crime of manslaughter was not withdrawn from the jury; for immediately following this instruction the jury were fully charged upon the crime of manslaughter ; and the jury were further told, in effect, that if they found the defendant guilty of an unlawful killing they could not find him guilty of any higher crime than manslaughter, unless the evidence proved to their satisfaction, beyond a reasonable doubt, each and every of the characteristics of such higher crime; and they were further told that they must acquit the defendant if they had any reasonable doubt as to his guilt.
The defendant relies upon The Territory v. Manton, 7 Mont. 162. In that case the jury were inadvertently told to .convict the defendant of manslaughter if they had any reasonable doubt of his being guilty of murder in either of the degrees, the verdict “not guilty” being taken from them. It is apparent that the case is not in point.
It is urged that the court below erred in refusing to give the following instruction, as to character, requested by defendant: “In determining whether or not the defendant acted upon a sudden heat of passion, caused by a provocation apparently sufficient to make the passion irresistible, as defined to you by the court, and without malice or deliberation, you must take into consideration all the circumstances existing at and about the time of the shooting; whether or not the deceased was making an attack upon the defendant; the nature of the attack, if any; the relative size and strength of the parties; and the character of the deceased for violence.”
"We might assign several reasons for sustaining the action of the court below in refusing this request. There was no evidence of any provocation which was apparently sufficient to arouse an irresistible passion, and this the counsel admit,' when they abandon their claim that the gravest crime shown was manslaughter; therefore it might be claimed that the court properly refused the instruction for that reason, even though the request may have been proper if confined to the question of *32deliberation alone. Again it might be urged that the instruction was elsewhere given; but we prefer to base our conclusion that the request to instruct was properly refused, upon the following ground, viz.: The request assumes that the character of the deceased for violence had been proved; at most, the defendant was entitled only to an instruction calling the attention of the jury to the evidence upon this point. In this case the assumption of the bad character of the deceased was particularly faulty, because there was very slight legal evidence tending to such a conclusion, as most of the witnesses gave their opinions, and not the reputation of the defendant.
The judgment and order appealed from are affirmed, and it is hereby ordered that the judgment of the court below be carried into execution upon the ninth day of August, A. D. 1889, in accordance with the terms thereof, as modified by the reprieve granted by the governor of Montana.
Blake, C. J., and Liddell, J., concur.