delivered the opinion of the court.
We think that the objection of counsel to the record on the change of venue was untenable. On the testimony, the fourth instruction for the state was erroneous. It defines malice aforethought in its legal sense, as “an unlawful act intentionally done.” This leaves out the essential of deliberation, which must exist, though it need only be for a moment. One may intentionally kill another in a struggle in the heat of passion, and the killing be unlawful, and may yet be only manslaughter. This error was liable to be, and no doubt was, fatally damaging to the accused in this case, where the homicide occurred in a struggle; and it warranted a conviction of murder upon a mere intent to kill under circumstances where he and the slain man each had hold of a pistol and each was striving for its possession. This error was emphasized and made more fatal by the refusal of the fifth instruction asked by the accused, to the effect that, “if, after reviewing all the evidence,” the jury had “a reasonable doubt as to whether the defendant had real or apparent cause to believe, and did believe, when he shot, that he was in immediate and imminent danger of losing his life or receiving great bodily harm at the hands of Mathews, he should be acquitted, ’ ’ even though the jury believed that he ‘ ‘ intentionally ’ ’ shot and killed Mathews. ■ If this instruction had been given, it might, in some degree, have neutralized the poison of the fourth charge for the state. It is true the instruction should have had in it the qualification that the danger should appear from the acts of Mathews at the time, and perhaps the court refused, it because of the lack of this *46qualfication. But, under the circumstances in evidence, where the acts of both parties are fully shown, we think this instruction should have been given as asked.
It was errer, on the evidence in this record, to refuse the tenth instruction asked by the accused. Undoubtedly he was entitled to an acquittal if there was reasonable doubt whether or not the pistol- was accidentally fired in the scuffle, with no intent to kill. It was error to refuse the eleventh instruction asked by the accused. If he had cause to believe, and did believe, he was in ‘ ‘ imminent and immediate danger of being killed by Mathews, ’ ’ he was entitled to acquittal, even though there was no danger in fact.
After the most careful and painstaking consideration of the testimony, on examination in chief and cross-examination, of the only witness on this trial who saw the killing, we think it was error to refuse the first instruction asked by the accused, because we think that no conviction, on the evidence now presented, should be sustained for more than manslaughter, if for that.
Reversed and remanded.