concurring.
We think that the majority opinion is right, also that the instruction first quoted in the opinion and the thirtieth and thirty-first instructions given by the court were erroneous and prejudicial to the defendant. The jury were told that “when one person assaults another violently with a dangerous and'deadly weapon, likely to *366kill, not in self-defense, or in defense of habitation or property, and not in a sudden heat of passion or sudden quarrel, and the life of the person thus assaulted is actually destroyed in consequence of such assault, * * * such killing would be murder.” Thus the court recited to the jury precisely the things which this defendant did, and tells the jury that such action “would be murder;” and so the defense of insanity was wholly eliminated. 'We think this would be prejudicial to the defendant, since her sole defense was insanity. The instruction is absolutely wrong and prejudicial in this case, because all of the circumstances of the killing are admitted, and there was no room for presumption to arise therefrom, and this instruction plainly tells them that the fact of the shooting raises the presumption that it was malicious; that that presumption is a legal presumption, and is so strong that under the existing facts the defendant is guilty of murder in the first degree. This decides for the jury the question of legal malice, which depends upon her sanity, which was the only question involved in the case. This instruction, there being no dispute about the facts accompanying the shooting, is prejudicially erroneous under the decisions in Vollmer v. State, 24 Neb. 838; Lucas v. State, 78 Neb. 454; Kennison v. State, 80 Neb. 688.
The thirtieth instruction .given by the court is as MIoavs: “In this case the jury will be warranted in convicting the defendant, Maggie Davis, of murder in the first degree, if you find the following facts from the evidence beyond a reasonable doubt: First. That Ira M. Churchill is dead, and that he died in the county of Cedar, state of Nebraska, on the 2d day of November, A. D. 1910. Second. That the said Ira M. Churchill died from the effect of the pistol-shot wound inflicted on him by the defendant in the manner and by the means specified in the information. Third. That the defendant without legal excuse inflicted the said wound upon the said Ira M. Churchill with the purpose and with the *367intent to thereby kill him; and the said wound was so inflicted by the defendant upon the said Ira M. Churchill by her deliberate and premeditated malice. Fourth. That said wound was inflicted by defendant upon the said Ira M. Churchill in the county of Cedar, and state of Nebraska, on the 2d day of November^ 1910, or at some time prior to his death. If you have so found these facts, it is your duty to find the defendant guilty of murder in the first degree.” There was no question that plaintiff in error shot the deceased. That fact was not disputed. The defense presented was that at the time of the killing she was not of sane mind. It will be observed that this defense was wholly eliminated by the instruction. At the beginning of the instruction the jury were told that they would be warranted in convicting the accused of murder in the first degree, if they found the facts stated therein to have been proved beyond a reasonable doubt, and, at the close, they Avere informed that if they found these facts it was their duty to find the defendant guilty of murder in the first degree. This closed the door upon the only defense offered, for there is not one word in that instruction directing the jury that they must find beyond a reasonable doubt that the accused was sane at the time of the killing, which the law clearly requires, and Avhich is the settled laAV of this state.
It may be said that the use of the Avords “without legal excuse,” as found in the third clause of the instruction, Avas sufficient to cure the vice of the instruction. But-such could not be the case, for in the twenty-first instruction the subject of “legal excuse” is presented, and the jury Avere informed that “the laAV recognizes no such rule in criminal laAV, popularly knoAvn as the ‘unwritten law'; that, even if you believe from the evidence that the deceased, Ira M. Churchill, had wronged the defendant and deceived her, this Avould not afford her «- legal excuse to take his life,” provided she Avas able to distinguish right from wrong as to the particular act complained of. Here the jury were told that the fact she had been *368wronged furnished no “legal excuse” for killing the deceased. With this direction as to what constituted a “legal excuse,” nothing would be more natural than that the jury should adopt as their guide this definition, and thus the defense of insanity would be entirely excluded. Tt is universally held by all courts that the giving of an erroneous instruction upon a material issue cannot be cured by other inconsistent instructions which correctly state the law. It is also a well-known rule that, if by an instruction an effort is made to cover the whole case, all the elements necessary to the commission of the crime must be included, or the instruction will be bad. It is also so well settled as to be elementary that instructions should be so formed as to be applicable to the evidence as presented in the case on trial, and to that evidence alone. The same vice occurs in the thirty-first instruction, which directs the jury to find the accused guilty of murder in the second degree, if they find that the killing was done without premeditation and deliberation.
We think these instructions were clearly erroneous, prejudicial, and constitute reversible error.