dissenting.
The defendant Avas found guilty of murder in the first degree, and sentenced to imprisonment for life. In the *520sixth instruction given by the court to the jury the following sentence occurs: “An unlawful hilling with malice, deliberation and premeditation, constitutes the crime of murder in the first degree.” It is a complete and positive statement and is incorrect. The statute is: “If any person shall purposely, and of deliberate and premeditated malice * * * hill • * * * every person so offending shall be deemed guilty of murder in the first degree.” Under the instruction above quoted the jury might have found the defendant guilty of murder in the first degree, although they had a reasonable doubt that the hilling was purposely done on his part. It is true that in the same instruction the jury were plainly told that “to constitute murder in the first degree there must have been an unlawful hilling1 done, purposely and with deliberate and premeditated malice.” The one statement in the instruction is as complete and positive as the other, and we cannot with certainty say that the jury disregarded the incorrect statement. In Beck v. State, 51 Neb. 106, the court in a somewhat lengthy instruction to the jury included this language: “The defendant offers evidence of an alibi, the burden is upon the defendant to prove this defense by a preponderance of the evidence.” In the same instruction the court said:
“And when the proof is in, the question for you to determine from all the evidence, both that given for the state and for the defendant, is, is the defendant guilty beyond a reasonable doubt, as charged in the information? And if from all the evidence on the part of the state, and upon the part of the defendant, touching the question of an alibi, then if you have any reasonable doubt of the guilt of the defendant in this case as he stands charged in the information, your verdict should he not guilty.”
The last part of this instruction is undoubtedly correct and states the proper rule of law in regard to the consideration that should be given to evidence tending to prove an alibi. But the fact that the jury were properly instructed upon this point in this instruction was not *521thought to free the instruction from prejudicial error arising from an incorrect statement contained therein. The reason was because both statements were direct and positive and were inconsistent with each other. The court said:
“It is suggested that the instruction as a whole states the law correctly. It is true that in another part of the instruction it is said that if from all the evidence, including that relating to the alibi, there is any reasonable doubt of the guilt of the defendant, he should be acquitted; but the most that can be said is that the instruction in its different parts is conflicting. An inaccurate or incomplete instruction may be cured if by reference to the rest of the charge the defect is supplied or the law accurately stated; but an absolute misstatement of the law is not cured by a correct statement elseAvhere in the charge.”
I think this view of the law is correct, and we are undoubtedly committed to the proposition that if the court in its charge makes two contradictory and inconsistent statements npon an important proposition of law directly involved in the case, one of which statements would be itself prejudicially erroneous, the fact that this erroneous statement is contradicted in another part of the charge aat.11 not correct the error, since it is impossible to say how much reliance the jury may have placed upon the incorrect statement of law. Wasson v. Palmer, 13 Neb. 376; Ballard v. State, 19 Neb. 609; Barr v. State, 15 Neb. 458; Henry v. State, 51 Neb. 119, 66 Am. St. Rep. 450; Bergeron v. State, 53 Neb. 752; Chicago, B. & Q. R. Co. v. Oyster, 58 Neb. 1; Williams v. McConaughey, 58 Neb. 656. In Bergeron v. State, supra, the court said:
“The attorney general has suggested that instructions should be construed as a whole. This is undoubtedly the rule, and if Avhen so considered they state the law correctly, they wilLbe upheld. But this principle is not applicable here, since a good instruction will not cure one which attempts to cover the entire case, but which is palpably bad,”
*522In that case there was no positive and .erroneous statement in the instruction condemned. It simply, while attempting to cover the whole case, omitted some essential elements, and it was held that another instruction supplying those omitted elements did not cure the error, and several decisions of this court are cited supporting that doctrine. In Missouri P. R. Co. v. Fox, 56 Neb. 746, the court said:
“An inaccuracy or incomplete statement in a charge may be cured by further correct and supplementary statements; but an absolute misstatement of the law cannot be cured by a subsequent correct statement conflicting therewith. The doctrine is familiar.”
This language was used of an instruction which contained a mistatement of law, and afterwards in the same instruction a contradictory and correct statement was made.
That the killing must be purposely done in order to constitute murder in the first degree is several times stated in these instructions. By the doctrine of chances, it is much more probable that the jury acted upon one or all of those statements than upon the one statement to the contrary. •This does not help the matter. After all, it is impossible to say which view the jury took; whether they found that the killing was purposely done, or, relying upon that part of the instruction under consideration, supposed they ought to find the defendant guilty in the first degree, although there was no intention or purpose to kill. Under such circumstances the conviction may be based jipon the erroneous statement of the law given to the jury, and the judgment should be reversed.