delivered tbe opinion of tbe court.
Tbe court gave only one intruction for the state, to-wit:
“Tbe court instructs tbe .jury for tbe state tbat, if they believe from tbe evidence in tbis case beyond a reasonable doubt tbat tbe defendant willfully, deliberately, and with malice aforethought shot and billed Hardy Pickering, be is guilty as charged ■in tbe indictment.”
It is objected tbat tbis is defective because it leaves out tbe words, “unlawfully and feloniously.” We think there is nothing in. tbis objection, tbe shooting being from ambush. All instructions must be based on tbe facts, and in tbis case tbe •only question was whether tbe defendant shot Pickering from ambush on tbe roadside. If be did so, and tbe jury believed be did, be is manifestly guilty of murder,- and if, under tbe facts, tbe court bad charged merely tbat if Sullivan shot Pickering, tbe instruction would perhaps have been valid for tbe reason tbat, if be shot and did tbe killing, it was plainly murder and nothing else. But, if we could be mistaken in our ruling on tbe point made, tbe defendant below himself cured any error of tbat sort by asking, and tbe trial court gave them, twenty in■structions elaborately prepared by very skillful counsel, in tbe very first one of which tbe court charged tbat tbe jury could not convict unless satisfied beyond all reasonable doubt “tbat tbe •defendant willfully, unlawfully, feloniously, and of bis malice aforethought-killed and murdered tbe deceased.”
Tbe other points made, wie think, on tbe record as presented, require no notice.
'Affirmed.