By the Court,
Hawley, C. J.:Appellant Donovan, having been convicted of murder in the second degree, complains of the following language in the court’s charge to the jury: “All murder perpetrated by means of any kind of willful, deliberate and premeditated killing is murder in the first degree; murder which is wanting in any of these ingredients of willfulness, deliberation or premeditation is murder of the second degree.” * * * “The distinction between the two grades of murder has been above stated. Murder that is willful, deliberate and premeditated is murder of the first degree. If it is not willful, deliberate and premeditated it is murder in the second degree.”
Appellant argues, that inasmuch as there was no testimony tending to show any provocation, irresistible passion *39or justification, or tbat the killing happened in the commission of an unlawful act, or in the prosecution of a felony, that the language objected to, while it might be correct as a general proposition, was not applicable to this exceptional case, and that it had the effect to deprive appellant of his defense, in this, that the language could be so interpreted as to mean that, although the jury might believe the killing to have been unintentional, they must, nevertheless, find appellant guilty of murder in the second degree.
Without entering into any discussion whether the language quoted would bear the interpretation given to it by counsel, if considered by itself, we think a complete answer to the objection urged is found in the fact, that upon an examination of the entire charge it becomes apparent that the jury did not so understand it.
From the testimony, it appears that McWilliams (the deceased) was shot through the head in a public saloon. But one shot was fired. Appellant claimed, that in an attempt to adjust his clothing the pistol dropped to the floor, and was there discharged. The theory of his defense was that the killing was accidental. • The State contended that' the fatal shot was intentionally fired by appellant. There is testimony in the record tending to prove both positions. The jury, being the sole judges of the credit to be given to the witnesses, would have been justified in finding either to be true. If the theory of appellant was correct he was not guilty of any offense. If, on the other hand, the theory of the prosecution was true, appellant was guilty of murder. The court properly withdrew from the deliberations of the jury the question whether or not appellant was guilty of manslaughter, as there was no evidence that would warrant its consideration.
“The question for the jury,” said the court, “will be whether or not Donovan did voluntarily or intentionally shoot McWilliams and kill him. * * * If the jury should conclude that -he did intentionally shoot and kill Mc-Williams, * * * as there is no evidence of any sort *40tending to show either justification or mitigation, they must conclude that the defendant is guilty of murder, and the only other further question will be whether it was murder in the first, or murder in the second degree.’’
Before the jury were called upon to consider whether it was murder in the first or second degree, they must have determined the fact in favor of the State, that appellant had intentionally shot at and killed the deceased.
The court gave the following instructions asked by appellant’s counsel, viz.: “Second. In this case at bar, the prosecution must prove beyond a reasonable doubt that the defendant fired the fatal shot; and if there is a reasonable doubt founded upon the evidence as to whether the defendant intentionally fired the fatal shot, or that the same was accidental, and not intentional, it is the duty of the jury to give the benefit of that doubt to the defendant and acquit.” “Third. If the jury believe, from the evidence, that the fatal shot was fired from the pistol while it was not in the hands or under the control of the defendant, it is the duty of the jury to acquit.”
Is there any possibility that a jury composed of sensible men could have been misled upon this point? We think not. The duty of the jury was plainly defined. If they believed the pistol was accidentally discharged they should acquit. If they believed that the fatal shot was intentionally fired by appellant, they should find him guilty of murder, and determine the degree.
There is no pretense but what the crime of murder was correctly defined, and if, in the judgment of the jury, the offense committed by Donovan was not of such a cruel and aggravated character as to come within the definition of murder in the first degree, it was nevertheless murder, and it was the duty of the jury to find him — as they did — guilty of murder in the second degree.
The judgment of the district court is affirmed.