£y the Court,
Crozier, C. J.The first reason urged for a reversal of the judgment below in this cause is, that the indictment was not signed by the proper officer. It was signed “ H. "W. Ide, District Attorney, First Judicial Districtand it is claimed that on the 5th of Dec. 1865, the day the indictment was presented and filed, no such officer was known to the law. On the 12th day of Eeb. 1864, an act was passed creating the office of county attorney, and repealing the former act creating the office of district attorney. The repealing act contains this section:
Seo. 16. That the act entitled “An act providing for the election of district attorneys, and defining their duties,” approved June 4th, 1861, and also sections 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66 and 67 of an act entitled “ An act relating to counties and county officers,” approved Feb. 25th, 1860, be and the same are hereby repealed; Provided, That all district attorneys in office at the time of the passage of this act shall continue in office for the same term for which they were elected, and shall have the same fees as heretofore provided by law.
The duties imposed upon the county attorney were iden*478tical with those required of the district attorney, except that the functions of the former are confined to one county, while those of the latter extended to all the counties in a judicial district. The district attorneys were to be elected at the November election in 1863, and to hold their offices for two years from the succeeding January. The county attorneys were elected 'at the November election in 1864,
and were to hold their offices for two years from January following.
The effect of the provision above quoted, was to continue the office of district attorney, as to those who held it at the date of the passage of the repealing act, until the expiration of their terms of office, which would occur in January 1866. It is not denied that Mr. Ide was the district attorney at the date referred to, nor is it contended that he resigned before the expiration of hi3 term of office; consequently he was district attorney at the time the indictment was filed; and, therefore, it was properly signed.
Upon the trial of the cause the principal witness against the defendant was one Molly Brown, who upon the stand declared herself to be a common prostitute, and testified that she was present at the alleged homicide, and was in company with the defendant during the whole of the night upon which it was perpetrated. She also testified that the district attorney had agreed with her not to prosecute an indictment then pending against herself for the same brime if she would tell the truth. The defendant sought to read that indictment in evidence, but it was excluded by the court.
It is contended by the defendant that had the indictment been read in evidence, the court would have been bound to charge the jury that they could not convict the defendant upon her testimony unless corroborated in every material matter. The claim is, that it would have affected her credibility in two aspects, to-wit: It would have shown her to have been an accomplice in the homicide, and would *479have operated as a bias in view of the promise of the district attorney. That it could legally have the former effect cannot, certainly, be successfully maintained. Every presumption, so far as she was concerned, was against its truth. Nothing but a plea of guilty or the verdict of a jury could, in legal contemplation, establish its truth. It would have evidenced no fact except that she stood charged with the commission of the same crime for which the defendant was being tried. It would have no weight in showing her to have been an accomplice, and consequently was not admissible on that ground. v
But upon the other ground mentioned it was admissible. The facts of being charged with the crime under investigation, and having been promised a discharge if she would tell the. truth, might very well operate as a bias. The district attorney must have supposed the defendant guilty, and that she knew it. It cannot be presumed that he would offer her a discharge for speaking the truth, if he supposed what she would say would exculpate' the defendant. It must have been understood between them what he would consider the truth. She had doubtless detailed to him what her testimony would be, or might be, which probably convinced him of the defendant’s guilt; and as an inducement to her to so testily, agreed to release her. She had good reason to expect a discharge upon the conviction of the defendant, which would be a consideration bearing directly upon her credibility. Wherefore, the court erred in excluding the indictment.
But even if it had been shown that she was an accomplice, it would not have been necessary to a legal conviction of the defendant that she be corroborated in every material matter. If such were the law, why adduce her testimony at all? If the remaining testimony must be sufficient without it, her examination would be a useless waste of time and energy. Why swear her at all in the case ? Her testimony must go to the jury like that of any *480other witness, they being the exclusive judges of her credibility, to give to it what weight, under all the circumstances, it might be entitled to.
Again, it is said that if the jury were convinced from t the evidence that she was a common prostitute, they were bound, as a matter of law, to reject her testimony, i. e. the law presumes that when a woman loses her virtue she will not tell the truth. This would be a very harsh rule, unsupported by authority except in one state of the Union, and entirely indefensible by any process of reasoning that this court can conceive of. A woman’s chastity should be the “immediate jewel of her soul,” and, with reference to consequences to herself, the very last virtue she would be willing to surrender; but when it is considered that she is regarded as the weaker vessel, that she is of a softer nature, of a moi’e yielding disposition and more vulnerable through the affections than we are, it ought not to be said when, in the warmth of sexual excitement and in the glow of natural passion, produced by the soft whisperings, the fervid protestations, the gentle pressures and other kindred blandishments which may be imagined, she submits to the embraces of her lascivious lover, that she pours out from her heart at Venus’ shrine with her virtue every other good quality with which, in our thoughts, we endow her sex. Vet the position assumed must come to that. If, as la matter of law, her testimony must be rejected when her ¡virtue is lost, the principle will be the same whether she I habitually flaunts her frailty in the face of the world, or attempts to hide it in retiracy, or garnish it with garlands of good works. The conviction and execution of an individual upon the testimony of an abandoned woman, or of a profligate man, would be productive of melancholy reflections, but there is no rule of reason which would not apply with equal force to the credibility of either. Vet it is claimed that the jury would be bound in law to reject the testimony of the former and consider the testimony of *481the latter. The law is certainly not so unreasonable. It much more wisely requires that the jury shall consider the statements of either, in the light of surrounding circumstances and the character of the witness, and give them such credence as they deserve.
Another reason assigned for reversing the judgment is, that the jury was improperly instructed as to the law of murder. This involves an examination and construction of the statute of the state upon that subject.
Section one of the Crimes Act provides thatEvery murder which shall be committed by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary, or other felony, shall be deemed murder in the first degree.”
The second section provides that, “ Every murder which shall be committed purposely and maliciously, but without deliberation and premeditation, shall be deemed murder in the second degree.”
The word “ murder ” is used in both sections in a technical sense, i. e., the common law sense, to-wit: “ Where a person of sound memory and discretion unlawfully kills any reasonable creature in being, and in the peace of the state, with malice prepense or aforethought, either express or implied.”
Under these statutory provisions, reference being had to the foregoing definition for the signification of the word “ murder,” it would seem there ought to be bu little diffi culty in determining what constitutes murder in the first degree; yet in attempts to bring within, or exclude from the operations of the statute, individual cases depending upon particular states of fact, there has grown up such a mass of irreconcilable judicial disquisition, that it is utterly impossible to deduce therefrom what the intention of the lawmaker was. This court will not attempt to reconcile *482these contradictions, but will avail itself of its privilege and seek in the plain terms of the statute itself, the law of murder.
It is very manifest that the legislature did. not attempt to define the crimes of murder, either in the first or second degree. The statute says every murder, not every killing, but every murder which shall be perpetrated with or without deliberation or premeditation, shall, as the case may be, be murder in the first or second degree. In either case it must be murder in the meaning of that term as defined above. To constitute murder at common law, there mirst be malice prepense or aforethought, i. e., an unlawful intention to take life must precede the killing. Rut “ deliberation and premeditation ” were not necessary ingredients. The same penalty was provided for killing with malice aforethought that was inflicted for malicious, deliberate and premeditated killing. The law recognized no degrees of atrocity in the commission of the crime. The lawmakers of this state, as did those of other states, thought they ought to recognize some difference in the degrees of malignity with which the killing was done; and upon that basis they undertook to divide murder at common law into two degrees, so that the punishment might to some extent be proportioned to the moral depravity manifested in the commission of the crime.
.Now where is the boundary between the two degrees, contemplated by the statute % In this behalf, it must be remembered that the question is not what shall constitute murder. That question must be supposed to have been settled. The investigation must proceed upon the assumption that what would have been a murder at common law has been perpetrated, and the only remaining question, the degree, within the meaning of the law. The statute says if it was deliberately and premeditately done, it is murder in the first degree, otherwise it is murder in the second degree; so that, to determine the degree of the *483crime, all that is necessary is to determine whether it was, or was not deliberately or premeditately perpetrated. Not whether a murder has been committed, but whether an admitted murder is in the first or second degree. To determine this question, all that is necessary, very manifestly, is to determine whether it was done deliberately and premeditately. In order to come to a correct conclusion upon this proposition, it' will be necessary to ascertain the signification of the terms employed. The word “ deliberate ” is derived from two Latin words, which mean, literally, “concerning,” and “to weigh.” When used as an adjective in the English, it means that the manner of the performance was determined upon after examination and reflection — that the consequences, chances and means were weighed, carefully considered and estimated. The term “ prem editated ” literally . means plan, contrive or scheme beforehand. Considering these definitions, the intention of the lawgiver must be very apparent. It is not only necessary that the accused shall plan, contrive and scheme, as to the means and manner of the commission of the deed, but that he shall consider different means of accomplishing the act. He must “ weigh ” the modes of consummation which his premeditation suggests, and determine which is the most feasible. Such is the literal import of the terms used, and there is nothing in the act which indicates that they are to be understood in a different sense.
That such was the intended signification of the terms used, is further manifest from a careful examination of the whole section. It says, “Every murder which shall be committed by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing,” shall be murder in the first degree. Here are two examples of what the legislature would consider “ willful, deliberate and premeditated killing,” viz: by poison, by lying in wait. It must be apparent upon a moment’s re*484flection, that neither of these could be performed upon a sudden impulse — that prior planning and scheming and a weighing thereof must necessarily take place — that something beside the immediate circumstances of the homicide must appear. If the act is committed by means of poison, it is necessarily implied that some reflection was bestowed upon the kind of drug to be used and the probable effects thereof; the means of obtaining it; the time, place and circumstances at and under which it could be administered. If lying in wait, it must be inferred that a determination to do the act had been arrived at, an observation of the habits of the intended victim taken; and a selection of the place which would afford an opportunity for the commission of the act made.
These things, in neither case, could be done upon a sudden impulse. Both require some reflection upon the time, place and manner of the killing — some preparation with express reference to the homicide.
Now if these kinds of killing involve reflection, pre-determination, or preparation, then must the expression “ any other kind of willful, deliberate and premeditated killing ” include similar circumstances. It could not therefore be said, that if a killing took place under circumstances'which excluded the idea of reflection, pre-determination or preparation, that it was done willfully, deliberately and premeditately; wherefore it could not be murder in the first degree.
Applying these considerations to the. instructions given to the jury, the latter will not appear to be erroneous. Taken altogether, they do not contravene the law as above construed; but it is exceedingly difficult, as an effort of the memory, to reconcile them. As a practical fact, no ordinary jury would be able to reconcile, or comprehend them-from a single hasty reading, such as is usually practiced in nisi prius courts. A much better practice would be for the court to treat the separate propositions requested *485by counsel as suggestions, embody such as appeared to him to be correct and applicable in a succinct, connected charge, in no instance repeating in different form what has already been given, merely because counsel request it.
Another assignment of error is that the court neglected to inform the jury what constituted murder in the second degree and the four degrees of manslaughter. The statute provides that the court in charging the jury “ must state to them all matters of law which are necessary for their information in giving their verdict.”
It also provides in substance, that upon a charge of murder in the first degree, the defendant may be convicted of any offense necessarily included therein, which would embrace murder in the second degree and the various degrees of manslaughter. Now, inasmuch as it is very manifest that murder in the second degree and all the grades óf manslaughter, are necessarily included in the charge of murder in the first degree, it was the imperative duty of the court, made so by the statute, to explain all of them to the jury. As the provision is plainly imperative, there is no necessity for attempting to sustain it by reason. It was error to omit to do so.
Finally, it is insisted that the verdict was against the evidence. This is an exceedingly delicate subject, and we enter upon an examination of it with much reluctance. But as the law requires it of us, when properly presented, there is no escape from it when the exigency arises. That exigency is upon us in this case.
The law provides that the jury shall be the exclusive judges of all questions of fact. That is, where there is any testimony at all upon a particular question, the jury must determine what that testimony proves. In that behalf their power is exclusive and supreme. But upon the question of whether there is any evidence of a particular material fact, they are not the exclusive judges. The law requires the court, after the jury shall have made its find*486ing, to determine that. Upon this branch of the case, then, the single duty of this court is to determine whether there was evidence upon *each material fact, necessary to a legal conviction; and upon this subject the examination will be confined to a single point.
We have hereinbefore endeavored to explain the meaning o.f the terms, “ deliberation and premeditation.” Now is there anything in this record showing a deliberate and premeditated killing? These are facts which must be shown by evidence. The law does not presume or imply their existence from any state of circumstances. But it is not necessary that they be testified to directly. They maybe inferred from the established circumstances of the case, provided the inference be a reasonable one; and no power but the jury has the right to make the inference. They are as well the judges of the inference as of the established fact, subject only to the limitation that it must be' a reasonable inference. They are not bound to make the inference from any conceivable state of fact, yet they may do so, within the limitation above mentioned.
The deliberation and premeditation must be proved as well as the malice. There is a great deal in the law boobs and considerable in the brief of counsel about express malice and implied malice; but there is in reality no such distinction. They both mean precisely the same condition of mind. The law makes malice a necessary ingredient in both degrees of murder, and it is the same thing whether shown to exist by one set of circumstances or another. Its existence, as a fact, must be proved on every charge of murder. The law never presumes- its existence. The manner of the proof may very widely differ in individual cases. In some it may be proved by declarations; in others by acts preceding the homicide, and in others still by the eireumstan. ces of the killing. Its existence in every case must be established by proof, either direct or circumstantial; never by presumption. So that, classifying it as express malice *487and implied malice is to recognize a distinction where there can be no difference. It is just so with deliberation and premeditation. They are never, -by the law, presumed or implied. They must be proved by evidence; but like malice do not require positive proof. The evidence may be circumstantial. The facts from which their existence is inferred may be very minute or remote, but there must be some evidence establishing their existence.
Applying these principles to the case at bar, it may be asked where in the record is the evidence that the killing in the case at bar was deliberately or premeditately done? Or where the circumstances, minute or remote, from which deliberation or premeditation can be inferred ? The court has searched the record in vain for it. Not only is there no scintilla of evidence directly showing their existence, or from which with any show of reason it might be inferred, but on the contrary the evidence absolutely excludes the idea of their existence. There is nothing in it upon which, to hang a doubt. According to the testimony, the defendant and the deceased, who were personal acquaintances and friends, met accidentally. A few words were exchanged and the killing effected immediately. Not a word about former grudges, threats or previous planning • — nothing in the manner of the killing or the subsequent acts of the accused to indicate that there had been premeditation. The manner and immediate circumstances of the homicide might justify the finding that it was maliciously done, but we cannot only not find anything in the record showing deliberation or premeditation, but that there was either is conclusively disproved.
The error of the jury in this behalf seems to have grown out of the general supposition that homicide without sufficient provocation, must necessarily be murder in the first degree, and punishable by death. Such is not our law. It regards confinement as sufficient punishment for malicious homicide. It is only when the deed is done in cold blood *488that death is to be inflicted. The penalty is to be graduated according to the malignity of the perpetrator.' In other words, the degree of guilt depends alone upon the condition of mind of the accused. It is not vengeance that the law requires to be inflicted, as men are too apt to suppose, but punishment. The general disposition, in cases like the one at bar, would be to demand “ an eye for an eye and a tooth for a toothbut the law of this state has not done so, and that, rather than popular feeling or prejudice must be our guide. It has made a very palpable distinction between the degrees of murder both in regard to what shall constitute each, and in the measure of punishment to be inflicted, and the distinction ought not to be refined away.
We are of opinion that the verdict was not warranted by the evidence.
The conclusion of the court therefore is, that the court below erred in refusing the indictment against the principal witness to be read; in neglecting to inform the jury as to the law of murder in the second degree and the various degrees of manslaughter, and in overruling the motion for a new trial.
The judgment will be reversed and the court below ordered to sustain the motion for a new trial.
All the justices concurring.