(concurring). It may be conceded that, as 'a rule, instructions should apply the law to the facts, but in no case to be found in the books has failure to do so, where the facts are so simple that the applicability of the law as stated is manifest, or so apparent that misapprehension or mistake is altogether unlikely, been regarded as reversible error. This is for the very good reason that some things are so plain that any elaboration or -explanation is not only unnecessary, but often tends to confusion. Of this the case at bar is an illustration. The most serious error complained of is the court’s omission to instruct more specifically on the crime of manslaughter. An accurate instruction on the subject was not requested, and therefore the fault, if any, must be found in the charge of the court as given. The accused, if guilty at all, was guilty of murder in the first or second degree or of manslarighter, and, in my opinion, these were so clearly differentiated in the charge of the court, the one from the other, the duty of deciding of which he was guilty so strongly emphasized, and the definition of manslaughter, as given, so pertinent to the only state of facts indicating in any way guilt of that offense, that the jury could not have failed to fully comprehend the bearing of the law on the facts of the case.
I. In the fourth paragraph of the charge the court instructed that, “ whosoever kills a human being with malice aforethought, either express or implied, is guilty of murder,” and in-the seventh that manslaughter is “the unlawful killing of a human being without malice, either express *329or implied, and without deliberation or excuse.” In tbe intervening instructions tbe distinction between murder in tbe first and second degree was stated, and accurate definitions of “ malice,” “ malice aforethought,” “ deliberate,” “ premeditate,” and “ willful ” were given. Tbe jury then, at tbe outset, was made to understand that, in order to convict of murder, an affirmative finding of malice was essential, and, if of murder in tbe first degree, to malice aforethought must be added tbe premeditated and deliberate purpose to kill, and that, with all tbe above elements eliminated, tbe crime would be manslaughter only.
II. Tbe necessity of discriminating between offenses, and deciding of which be should be convicted, was definitely stated. In tbe second instruction it was said be could be found guilty of any one of them, while in tbe fourth tbe jury was told that, if be “ should be found-guilty of one of ■them, and a reasonable doubt was entertained as to whether be was guilty of a greater or less offense,” be should be given tbe benefit of tbe doubt, and be convicted of the lesser one only; and tbe twenty-sixth instruction cautioned against a conviction of more than one of tbe crimes enumerated. Precisely what was essential to a verdict of guilty of each was concisely stated in three successive instructions: In tbe twenty-tbird, what was essential in order to convict of murder in the first degree; in tbe twenty-fourth, what should be found to convict of murder in tbe second degree; and in the twenty-fifth instruction that, if the killing was unlawful, and without malice, either express or implied, and without deliberation, he should be convicted of manslaughter.
III. With full knowledge of the distinction between murder and manslaughter, and conscious of their duty, as they must have been, to determine of which the defendant was guilty, the- jurors began their inquiry.. The evidence was without serious conflict. None was introduced in behalf of the defendant save as to his previous character, his offer to loan some money belonging to his wife, and a contradic*330tory statement of a witness outside of court. Aside from bis admissions, it was purely circumstantial. But for these, the manner of bis wife’s death could only be inferred from the bruises and wounds on her dead body, furnishing no indication of the mode and intention of the perpetrator of the crime. The weapon was unknown. Even in his alleged confession the accused was not sure that the fatal blow was given with a chair. Aside from some admissions warranting the bare inference that he may have caused her death, the only particulars tb be found in the record are those in the sheriff’s testimony of the statement made by' the defendant when in"jail:
While I was choring around out at the barn, my wife came out, and she went talking about her folks — finding fault. That there was Harm Cassman. She wasn’t going over there any more. He charged her five dollars for riding with him over to Ackley to Kruse’s — Siko Kruses — because he had some of her furniture he would not. let her have. Then I said to her, “ What is the matter with you anyway ? ” There was a pail of feed sitting on the ground. I reached down and took it, as though I was going to throw" it at her. She screamed, and ran to the house. I followed her up to the house, to see what she was going to do, and as I opened the door she struck me over the head with something. I went crazy wild at that time, and struck her with something, I don’t know what. I done all the rest.
He Was pretty sure it was a chair with which she hit him, and that he seized the same from her, or another one, and struck her. The consequence of an act, naturally resulting therefrom, in the absence of any circumstances indicating the contrary, are presumed to have been intended, as the jury was informed; and but for the confession, a verdict for murder in either the first or second degree must have been returned. This is conceded, but it is said that the attention of the jury was not directed to the bearing of the confession on the crime of manslaughter. Let me repeat that the only information as to the manner *331of killing was that contained in the confession, and it was the only evidence even tending to reduce the crime to that of manslaughter. Was it possible for the jurors to forget it ? Other incidents of the trial may have been overlooked, but the account said to have been given by the accused himself could not have been ignored. Even were this possible, it may safely be assumed, that the able counsel for the defense, whose efforts throughout the trial were directed more to reducing the degree of the offense than in procuring an acquittal, did not permit the significance of this evidence to escape attention. But the jury was not left in the dark. The necessity of deciding whether defendant was guilty of manslaughter had been strongly impressed upon their minds by the charge of the court, and they were told in the twelfth instruction that, “ to constitute voluntary manslaughter, the killing must be done when the reason is disturbed or obscured by passion to an extent which causes a person to act rashly,. without reflection, and from passion, rather than judgment. There must be an adequate provocation for the passion, and the killing must be done without previous malice.” The only evidence to which, by any possibility, this instruction could have been construed to refer, or, on the other hand, which could have been connected with this instruction, was that of the confession. The accused had said he went “ crazy wild ” when his wife hit him as the door vías opened, and as a result he struck her, presumably, the fatal blow. The only inference to be drawn from this language was that he lost his temper, and killed her in the heat of passion, and we submit that this was the only inference the jurors could have drawn. With this instruction before them, saying that, “ to constitute voluntary manslaughter, the killing must be done when the reason is disturbed or obscured by passion to any extent which causes a person to act rashly without reflection and from passion rather than judgment,” is it possible that they were unable or failed to make the application? Could a direct instruction includ*332ing the language of the confession have made it plainer? Certainly not, and a ruling to the contrary belittles the intelligence of the jury.
It must not be forgotten that the courts, in delivering instructions in this State, are speaking to men of larger capacity and more liberal education than was possessed by those who sat in the jury box when many of the rules relating to the charging of juries were developed and announced. By this I do not mean to say that inaccuracy in the statement of the law of a case should be tolerated, but that in determining whether the jury must have comprehended and correctly applied the law to the facts the high degree of intelligence and advanced education of the modern juror should be recognized, and taken into consideration. This was not necessary, however, in the instant case, for anything above ordinary mental acumen need not be presumed in order to conclude that the applicability of the law to the statement contained in the confession was fully appreciated by the jury; for (1) the account contained in such confession was the only evidence to which the instruction on manslaughter could have been applied; (2) the instruction was pertinent to the language of the confession, and directly applicable thereto, and to no other evidence in the case; and (3) the necessity of a finding as to whether defendant was guilty of this particular offense was especially enjoined upon the jury. In convicting him of murder in the first degree, the contention that he acted without malice was rejected. The finding of deliberation, premeditation, and a willful purpose to kill necessarily excluded the notion that the crime was the result of 'passion. His own story stamped him as the aggressor. If he is to be believed, he committed the first assault by reaching for the pail of feed in such a threatening manner that his wife rushed screaming to the house, and closed the door behind her, the defendant pursuing, and upon opening the door was met by force in apparent self-defense, when he beat her down to the earth. It *333may be that his wife acted with provocation, but certainly this ought not to be said of him. He was following up a fierce and unprovoked assault, and a finding by a jury that his passion, if any he had, when he struck her down while repelling his pursuit, should be> attributed to any “ adequate provocation ” on her part would be entitled to little respect, indeed. His previous ill feeling toward deceased was shown, and the verdict, in fixing the death penalty, was warranted by the record, if in any case life ought to be forfeited as a penalty for crime. These matters are mentioned because they obviate any inference which might possibly be drawn from the verdict that the jury, because of its character, may have failed to appreciate the bearing of the law and the evidence on the issue as to whether defendant was guilty of manslaughter.
In my opinion, the accused was accorded a fair and impartial trial, and the judgment ought to be affirmed.