I dissent from that portion of the opinion which reduces the degree of the crime. In so reducing the degree of the crime, the majority disregards substantial prosecution evidence from which the jury, in my opinion, could reasonably infer, as it did, that the homicide was both intentional and premeditated. Prior to a discussion of the law *94governing the ease, a chronological narrative of the evidence introduced will assist in determining the propriety of the jury’s verdict finding the murder to be of the first degree.
The homicide occurred on Monday, April 19, 1943, at a small railway station in Lassen County. Defendant was one of three telegraphers employed at the station. Deceased was a brakeman on a logger train. The evidence shows and the majority concedes, that preceding the homicide defendant had engaged in a series of disputes with other employees. He had ordered a fellow-telegrapher to stay out of the office when he (defendant) was on duty. On the afternoon preceding the homicide defendant had abandoned his telegraph station and as a result, was told he would have to resign or stand a formal investigation. This undoubtedly served to irritate him further. On the folloAving morning defendant refused to accept a telegram from telegrapher Shields, who was then on duty, and called Shields a---. Defendant then stalked out of the office leaving the door open. It was closed by a third person and defendant challengingly returned to find out who had closed the door. As he stood in the doorway a train on which deceased was brakeman backed in. Defendant called to deceased who came over to find out what he had said. The prosecution witness Shields said he could not hear the conversation but it “looked like they may have exchanged a few words,” and that he heard defendant say to deceased “he would say anything he wanted to to his face.” Deceased returned to his train. Shields further testified that about an hour later defendant again came into the station and took a bundle of bedding. He had a gun with him at the time. The witness testified that the next time he saw deceased that morning he came into the station holding his stomach. He had been shot. Shields also testified to a prior disagreement between defendant and deceased based on the latter’s use of coal from a bin near the station, and in reply to a query whether he ever heard defendant “make any statements with relation to anyone other than Riley,” the witness replied, “Not that I know of” and that defendant’s statements indicated “he was a little peeved at Riley for taking the coal.”
Prosecution witness Hilton, a train engineer, testified he was in the station at Hall Flat on the morning of April 19th, when defendant came in and refused to accept the telegram *95from telegrapher Shields. Defendant threw the message on the floor and left the door open as he departed. The witness closed the door and defendant returned demanding to know who closed the door, and stating “Well, I aim running things around here and I want you to understand none of you trainmen are going to have anything to do with it.” The witness saw defendant in the station a little later in the morning and he had a rifle. When questioned as to defendant’s sobriety and whether he was “able to walk around and talk coherently,” the witness replied, “Absolutely all right.” Shortly after defendant left the station, deceased was shot.
Witness Ferguson, who was conductor of the train on which deceased was brakeman, testified that he came into the Hall Flat station to register-in his train when he saw and heard defendant angrily refuse to accept the telegram from the telegrapher on duty. Defendant told the witness in a hostile tone that he was all through with the railroad “and anybody that works for them.” About an hour or so later as the witness left his train to again enter the station he sa3v defendant standing by the tracks holding a rifle. Defendant told Ferguson “to go over by a big tree and pull it up and get in the hole. ’ ’ When he came out of the station defendant was gone but the witness learned defendant had just shot the deceased who had come in on the train. The shooting occurred within three or four minutes after defendant had told the witness to jump in a hole in the ground. The witness also related that prior to the shooting, defendant was “pretty peeved” at all the trainmen, and particularly deceased, because they had used coal (as they had a right to do) from the bin near the station, which coal was also used to heat the station. When interrogated on cross-examination as to defendant’s sobriety the witness replied, “Well, he just seemed to be angry. . . . Didn’t seem as though he was under the influence of liquor, . . . He was just cranky, and looked like he had a chip on his shoulder for anybody that would argue with him, or talk to him. ...”
Dorithy, the engineer of the train on which deceased was brakeman, testified that at approximately 10:30 o’clock on the morning of the shooting, defendant walked from the station to the train with a message blank in his hand and the witness thinking it contained instructions for them stopped the train, got out on the ground and asked defendant “what *96he had for us.” Defendant asked, “What is the matter with Riley [deceased], is he trying to get tough around here.” The witness replied there was “nothing the matter with Riley, for him to leave Riley alone, and Riley wouldn’t bother him,” whereupon defendant said “he was going to go home and get his gun, and shoot his [Riley’s] God damn heart out and wipe it across his mouth.” The witness said the train then left the station, with deceased aboard, and returned about one hour and twenty minutes later, when defendant shot deceased. On cross-examination the witness stated that when defendant said he was going to get his gun and shoot Riley’s heart out, “he did sound serious” and the witness “didn’t think he was drunk.” In fact, the witness said defendant’s mannerism was no different than on other occasions, that defendant was changeable—being affable at times and “moody” and “quarrelsome” at other times.
The witness Damaske, a brakeman on the train, testified that after he had thrown the switch for the train he met defendant on the tracks coming toward the train and carrying a rifle. In response to the witness’ salutation, defendant said “Some of these old---around here had better mind their own damned business.” It was deceased’s duty to realign- the switch and the witness added he did not see either the deceased or defendant again until after the shooting. At the time, defendant “walked and everything else, just like he always did.”
Cox, the fireman on the train, testified he saw defendant near the switch-stand holding a rifle. Deceased was at the switch-stand to realign the switch. When the train rounded a curve the witness lost sight of the parties but within a few minutes he learned that defendant had shot deceased. The witness was never close enough to defendant on the morning of the shooting to form an opinion as to his sobriety.
The witness Keever, also a locomotive fireman, testified that as he was walking to work he saw defendant standing in the dirt road near the switch holding a rifle and deceased was on the opposite side of the track leaning on the rear car of the train; that in response to the witness’ inquiry as to how everything was going, defendant replied “O.K., but right now I am telling this brakeman off. ’ ’ The witness heard deceased tell defendant “to take his gun and his dogs and go on about his business, that he didn’t have time to be bothered with *97him,.” When the witness had walked about 50 feet he heard “the rifle crack,” turning he saw defendant holding the gun in both hands and heard him say to deceased who was then at the switch-stand, “Stay back, don’t come any closer, or God damn you, I will kill you,” whereupon “practically instantaneous” he fired a second shot at deceased who grunted and held his stomach. At the time of the shooting deceased was approximately fifteen feet from defendant. The witness stated deceased had nothing in his hands at the time “other than his gloves. He had his gloves on.” On cross-examination the witness stated that previous to the firing of the second shot deceased “was facing in the direction of Mr. Holt [defendant] and going in that direction as well as in the direction of the switch-stand” where, as shown, he was to realign the switch. The witness further testified that when the second and fatal shot was fired deceased “was right in the very act of turning . .. towards me .. . and he was in a rather bent-over position, slightly, as though he was dodging something, or trying to duck . . .”—a perfectly natural reaction following the firing of the first shot by defendant. As to defendant’s sobriety, the witness stated that when he first saw defendant on the morning of the homicide, which was some two and one-half hours before the shooting, defendant “was intoxicated” but the witness added, “it was hard to judge or observe, and say definitely as to his condition” at the time of the shooting, though the witness was of the opinion that the intervening period “wouldn’t have been a reasonable time to sober up in.” On the redirect examination of the witness, however, the following appears:
“Q. Before recess for the noon hour you gave an opinion as to the sobriety or intoxication of Mr. Holt, did you not? A. I believe I did.
“Q. And you stated that you based that opinion entirely upon your seeing Mr. Holt earlier in the morning? A. Yes.
“Q. Was there anything in Mr. Holt’s actions or appearance while he was there in the road, immediately before the shooting that would indicate that he was intoxicated? A. No, I can’t say there was, because there was no indication as regards his intoxication.
“Q. Your opinion is based on events that transpired—your seeing him earlier in the day? A. Entirely.
"Q. Are you a drinking man yourself ? A. I have nothing to do with it.
*98“Q. I would like to ask you this question. What did you see or what did you hear that caused you to think that Mr. Holt was intoxicated when you saw him in the morning? You talked to him in the morning, did you? A. Yes.
“Q. And walked up to his cabin with him? A. Yes.
“Q. And you were present when these events took place between Shields and Mr. Holt and between Hilton and Holt ? A. Yes, I was in the station, right in the very room at the time it occurred.
“Q. Did you notice any impediment in his manner of speaking? A. No.
“Q. When he walked up the road with you did he stagger? A. No, there was no—it was purely his attitude, his antagonistic attitude that I based that statement on. I didn’t see him take a drink, and he walked about as straight as I did.
“Q. Did you smell liquor on him at that time? A. No.” (Italics added.)
The sheriff who took defendant into custody testified that defendant said he shot deceased “because he called me dirty names. . . . He had it coming. . . . Sheriff, I would shoot you if you called me dirty names. ’ ’ Defendant did not tell the witness that deceased approached him with a stick or any other weapon. On cross-examination, the witness stated that when he arrested defendant at 2:30 o’clock in the afternoon, several hours after the shooting, defendant “was moderately intoxicated.’’ (But, as will later appear, defendant and his wife testified he had consumed some whiskey after the shooting and before the arrest by the sheriff.)
Defendant took the stand in his own defense and testified that he had voluntarily imbibed intoxicants both before and after the homicide, which condition, he asserted, caused his memory to be hazy, if not a blank, as to some of the events. (The evidence of the prosecution witnesses, already stated and as later developed in rebuttal, definitely tends to establish that defendant was not intoxicated at the times and places covered by their testimony.) Defendant did recollect and admit, however, that he had ordered a fellow-telegrapher to stay out of the station during his (defendant’s) shift. He also admitted having refused to accept the telegram from the telegrapher on the morning of the homicide and also recollected going back to inquire who had closed the station door after he had departed leaving it open. After relating a story which *99tended to establish that the most cordial relations existed between him and deceased, defendant testified that on the morning of the homicide deceased, after assertedly saying he was glad defendant lost his job, and without apparent provocation, advanced toward him with a brake-stick or club. At no time, however, according to defendant’s own testimony, had deceased wielded the stick in defendant’s direction nor was he at any time close enough to strike him with the stick. In fact, while deceased was still some 15 feet from him, defendant fired two shots, one of which killed deceased. While admitting that deceased had not struck at him and was at no time close enough to hit him, defendant also admitted that he fired the gun without making any attempt to back up or to otherwise avoid the shooting. After the shooting, defendant admittedly made no effort to look for or retrieve the stick or club assertedly held by deceased. The only attempted refutation of the many incidents and statements testified to by the long array of prosecution witnesses, was offered by the defendant himself. The jury by its verdict rejected his testimony insofar as it conflicted with the prosecution showing. It is not within the power of an appellate court to overturn the jury’s implied findings based on substantial evidence and the inferences reasonably deducible therefrom.
Defendant’s wife testified that after the shooting she was walking in the general vicinity and picked up a “stick” which she used as a cane. The “stick” was introduced in evidence though defendant was unable to identify it as the “club” assertedly held by deceased. The wife stated that when defendant came into the cabin immediately after the shooting he did not mention that deceased had a stick or club in his hands. She also testified that he drank some whiskey after returning to the cabin following the shooting—such drinking subsequent to the shooting might well account for the “moderately intoxicated” condition of defendant testified to by the sheriff when he arrested defendant several hours later. The wife further testified that when defendant left the cabin with the gun she “didn’t feel that he was so intoxicated that he wouldn’t be able to'handle the gun.”
The prosecution called the following several witnesses in rebuttal: The sheriff testified he had searched the vicinity of the shooting (which was prior to the time defendant’s wife said she found the stick) and that he did not see there a *100stick or club resembling the one placed in evidence. Damaske, the brakeman, testified that at no time during the switching operation which immediately preceded the shooting did he see a stick or club in deceased’s hands and that he did not notice a stick on the ground resembling the one in evidence. One of the other trainmen also testified that at no time did he see a stick or club in deceased’s hands. ICeever, recalled in rebuttal, testified that between the first and second shots he had a full view of deceased who was never out of his sight and he did not have a stick or club in his hands. This witness said, “I am telling you I seen both hands and if that stick, or any other stick like it, had been in his hands I would have seen it. . . . No, sir, it wouldn’t have been possible for him to have that stick in his hands and I not seen it. ’ ’
The superior court reporter, who had reported a statement made by defendant to the district attorney and others, testified that defendant when asked if he was intoxicated at the time of the shooting, replied “No, hell, no”; and that when asked if deceased had anything in his hands, he responded, “I don’t know whether he had a brake club or not; but I know when he said so-and-so, and started towards me, 1 guess that is when I blowed my top. . . . He said some bad words that wasn’t nice for him to say.”
Section 189 of the Penal Code declares that “All murder which is perpetrated by means of poison, or lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration or attempt to perpetrate arson, rape, robbery, burglary, or mayhem, is murder of the first degree; and all other kinds of murders are of the second degree.” The evidence, briefly outlined above, is sufficient to support the jury’s implied finding that the killing of Riley by the defendant was “willful, deliberate, and premeditated” and therefore murder of the first degree as defined in the code section. The existence of a deliberate purpose to kill may be inferred from the character of the weapon used, the circumstances surrounding and showing the relationship of the parties, and the acts and conduct of the accused. (People v. Cook, 15 Cal.2d 507, 514 [102 P.2d 752] ; People v. Smith, 15 Cal.2d 640, 647 [104 P.2d 510]; 13 Cal.Jur. 597, § 14.)
In People v. Mahatch, 148 Cal. 200, 202-203 [82 P. 779], it is stated that defendant ‘ ‘ assumes that it was necessary that *101there should have heen express evidence of a deliberate purpose to kill in order to warrant the verdict as returned. But this was not necessary. It could be inferred from proof of such facts and circumstances in the case as would reasonably warrant an inference of its existence. The defendant did not deny that he killed Confaglia. He claimed on the trial that he was so intoxicated as to know nothing about the killing. . . . The jury, having found that the only extenuating circumstance which he interposed had no existence in fact, and no claim of any circumstances of mitigation, justification, or excuse for the killing being advanced, had a right to infer, from the character of the weapon used, the nature of the wound inflicted, and the acts and conduct of the accused, the existence of a deliberate purpose on his part to kill the deceased when the fatal blow was struck, and, so inferring, were warranted in returning a verdict therefrom for murder in the first degree. This is the general, it may be said the universal, rule. If a different one prevailed, secret murders could rarely be punished by the infliction of the highest penalty. It is exclusively the province of a jury to determine the degree of crime when there is any evidence in the case which will support the determination. We are satisfied that in the case at bar there was sufficient evidence to warrant the jury, within the rule we have stated, in inferring the existence of a deliberate intent to kill. They so found and awarded the highest penalty, and their finding was approved by the trial judge on the motion for a new trial. This is conclusive upon the subject and upon us, as we can only disturb a finding when we can say, as matter of law, that there was no evidence to support it.”
People v. Machuca, 158 Cal. 62, 64 [109 P. 886], states that ‘ ‘ There was also evidence that the defendant had, on the day prior to the killing, made a statement that the jury might fairly have interpreted as constituting a threat against the life of the deceased. This court has repeatedly declared that the question of the degree of crime is exclusively for the jury, and that their determination will not be disturbed when there is any evidence to support it. (People v. Bowman, 81 Cal. 566 [22 P. 917]; People v. Bruggy, 93 Cal. 476 [29 P. 26] ; People v. Worthington, 122 Cal. 583 [22 P. 396]; People v. Mahatch, 148 Cal. 200 [82 P. 779].). . . It is not necessary that there should be express evidence of a deliberate purpose *102to kill. ‘It could be inferred from proof of such facts and circumstances in the case as would reasonably warrant an inference of its existence. ’ (People v. Mahatch, 148 Cal. 200 [82 P. 779].) That the deliberation which must precede the killing in order to make the murder one of the first degree need not have existed for any given length of time is thoroughly settled. (People v. Bealoba, 17 Cal. 389; People v. Sanchez, 24 Cal. 17; People v. Hunt, 59 Cal. 430; People v. Mahatch, 148 Cal. 200 [82 P. 779].) This being so, it cannot be doubted that the evidence here introduced fully justified the jury in finding the killing to have been deliberate and premeditated. There was to be sure, the testimony of the defendant and other witnesses contradicting the showing made by the prosecution, but it cannot be necessary to cite any authority to the effect that the action of the jury in accepting as true either of two conflicting statements presents no ground for the reviewing power of the appellate court.” This language is quoted with approval in People v. Bellon, 180 Cal. 706, 710 [182 P. 420], That no appreciable time need elapse between the intention to kill and the act of killing and that they may be as instantaneous as successive thoughts of the mind, see, also, People v. Cook, 15 Cal.2d 507, 514 [102 P.2d 752]; People v. Aranda, 12 Cal.2d 307, 310 [83 P.2d 928]; People v. French, 12 Cal.2d 720, 745 [87 P.2d 1014]; People v. Patubo, 9 Cal.2d 537, 540 [71 P.2d 270, 113 A.L.R. 1303]; People v. Dale, 7 Cal.2d 156, 159-160 [59 P.2d 1014] ; People v. Garcia, 2 Cal.2d 673, 683 [42 P.2d 1013]; People v. Fleming, 218 Cal. 300, 310-311 [23 P.2d 28],
The following appears in the case last cited:
“Under the contention that the evidence fails to show premeditation or deliberation on the part of the defendant in the killing of the deceased, appellant in his brief says, ‘there is an entire lack of evidence either direct or circumstantial in nature consisting of facts proven from which the jury might have reasonably or logically inferred that the killing was wilful, deliberate or premeditated’. With this statement we cannot agree. It is true that no great interval of time elapsed from the time the deceased pushed the defendant through the door until the defendant drew his gun and shot the deceased. But this court has said on innumerable occasions that in order to prove premeditation in one charged with murder it is not necessary to show that any appreciable space of time elapsed between the intention to kill and the act of killing. It is only *103necessary to quote from People v. Sunt, 59 Cal. 430, 435, the following statement of the law on this subject: ‘ There need be no appreciable space of time between the intention to kill and the act of killing; they may be as instantaneous as successive thoughts of the mind. It is only necessary that the act of killing be preceded by a concurrence of will, deliberation, and premeditation on the part of the slayer, and if such is the case, the killing is murder in the first degree, no matter how rapidly these acts of the mind may succeed each other, or how quickly they may be followed by the act of killing. ’ The precise language of this decision has been repeated on numerous occasions by this court and the principle there enunciated is irrevocably established as a part of the law of this state. (People v. Bellon, 180 Cal. 706, 710 [182 P. 420].) In the instant case, while the testimony, already quoted shows that the defendant shot almost, if not immediately, after the two men went through the door, still there was time for the defendant to think before he acted, to deliberate between the intention to kill and the act of killing. Defendant had time to draw his gun and fire the shots. He formed the intention to draw his gun, and then acted upon that intention. He drew his gun with some intention—either to defend himself, to frighten the deceased or to kill the deceased. After forming the intention, whatever it was, he acted upon it by firing his gun. He thus had time to think and to act. This is all that is necessary in order to show premeditation.”
The majority opinion recognizes that the overwhelming weight of the evidence, including defendant’s own testimony and extrajudicial statements, demonstrates that he was not an innocent person suddenly confronted with imminent danger of bodily harm. On the contrary, it is admitted he had been going about with a “chip on his shoulder” for at least a day prior to the homicide. By his quarrelsome and challenging attitude defendant thus created an atmosphere of antagonism, the majority concedes, that “might naturally lead to physical combat if he continued, as he did, in his quarrelsome pursuit of trouble.” By his objectionable and challenging attitude he thus set the stage for the shooting which he ultimately perpetrated. In view of the conflict in the evidence, the majority opinion also recognizes, as it must, that defendant’s account.of the shooting is not presently material to a consideration of the degree of the offense. By its verdict the jury resolved all conflicts against the defendant and ac*104eepted the strong prosecution showing as to the circumstances and conditions which prevailed both before and at the time of the shooting. Under the settled rule, this court may not therefore disregard the jury’s verdict. Yet, in the face of this fundamental principle and despite the existence of prosecution evidence to the contrary, the majority opinion states that on the day preceding the homicide defendant “apparently had been drinking heavily” and “had reached a stage of stupefaction” when arrested a few hours after the shooting. The prosecution evidence, quoted herein, and apparently accepted by the jury, absolutely refutes both statements. To illustrate briefly: The majority opinion in narrating the evidence of engineer Hilton as to defendant’s quarrelsome attitude on the day preceding the homicide, fails to mention that the witness when interrogated as to defendant’s sobriety at the time testified he was “absolutely all right.” In refutation of defendant’s asserted condition of “stupefaction” at any time of the day of the homicide, reference may be had to the testimony of conductor Ferguson who said defendant “just seemed to be angry . . . didn’t seem as though he was under the influence of liquor.” Engineer Dorithy testified that when defendant said he was going to get his gun and shoot deceased’s heart out, “he did sound serious” and the witness “didn’t think he was drunk.” Brakeman Damaske testified that when he met defendant coming toward the switch with the gun defendant “walked and everything else, just like he always did.” Fireman Keever on redirect examination testified that immediately before the shooting “there was no indication as regards his [defendant’s] intoxication,” that he did not stagger, that there was no impediment in his speech and no smell of “liquor on him at that time.” The sheriff testified that when he arrested defendant a few hours after the homicide he was only “moderately intoxicated”—caused undoubtedly by his admitted consumption of whiskey after the shooting. In the face of this positive prosecution evidence to the contrary, the statement of the majority that defendant’s condition on the day of the homicide (either before or after the shooting) was one of “stupefaction,” cannot be supported. It is based on defense evidence which was rejected by the jury in the face of overwhelming evidence to the contrary.
The majority also attempts to minimize defendant’s threat against the life of deceased made one hour before the shooting by characterizing it as an “extravagant” statement which *105defendant made no "effort literally to carry out.” Certainly, a threat to "shoot [deceased’s] God damn heart out and wipe it across his mouth” was most effectively executed by defendant’s fatal shooting of deceased one hour later. The majority while stating that the prosecution witness who heard the threat did not consider it to be "seriously meant,” recognizes that the witness on cross-examination testified that when he made the threat the defendant "did sound serious.” The majority improperly assumes the function of the jury and minimizes the prosecution evidence while emphasizing the meager defense showing. In so doing, it has usurped the power of the jury.
The majority opinion next seeks support for its reduction of the degree of the homicide in the fact that defendant for some time preceding the shooting had shown ill feeling toward others than the deceased. Ferguson testified, however, that defendant was "particularly” peeved at the deceased. Aside from this, it is difficult to perceive how defendant’s quarrelsome attitude and ill-will toward several persons, including deceased, can serve to reduce the degree of the homicide resulting from the intentional and premeditated shooting of deceased, particularly when an hour before the shooting defendant had threatened to "shoot [deceased’s] God damn heart out and wipe it across his mouth.” Certainly, if defendant had killed all of the group with whom he had quarreled, it could not be successfully argued that because of his capacity to harbor ill-will against many the resulting killings would not constitute murders of the first degree. It is axiomatic that the greater includes the less and it seems too plain for argument where, as here, defendant’s display of ill-will included deceased, and was coupled with a threat against deceased’s life, that the jury might reasonably infer, as it did, that the ultimate execution of the threat was both intentional and premeditated. And having so concluded on substantial evidence, this court is powerless to disturb its verdict.
Moreover, the majority in seeking support for its reduction of the degree of the crime by referring to defendant’s display of ill-will toward others than the deceased, loses sight of the rule that “it is the laxo of this state that in order to sustain a coxiviction of murder [of the first degree] it is not necessat'y to show personal enmity on the pari of the defendant against the deceased.” (People v. Fleming, 218 Cal. 300, 309 [23 P.2d 28]; People v. Sainz, 162 Cal. 242 [121 P. *106922].) This being so, the majority’s emphasis of defendant’s asserted lack of enmity toward deceased is not only unwarranted under the evidence but wholly immaterial.
The Sainz case, supra, presented a factual situation substantially identical with that stressed by the majority herein (but rejected by the jury) as requiring a reduction of the degree of the crime, nevertheless the decision in that case affirmed a judgment of murder of the first degree. The decision in that ease states (p. 243) : “Defendant was sheep-shearer and a member of Santos Carrissosa’s sheep-shearing camp, which contained twenty or thirty Indians and Mexicans. The deceased, Jose Machado, was likewise a member of the camp. The camp was composed of two tents or encampments, one known as Carrissosa’s tent, where Machado lived, the other known as Mirando’s tent. The sheep-shearing was over. The defendant began to drink, became somewhat intoxicated, and fell into an ugly and quarrelsome mood. With his sheep-shears he went to the entrance of Carrissosa’s tent and challenged the occupants generally to come out and fight him. Thereafter he took his Winchester rifle and began shooting at a can upon the ground, firing six or eight shots, and declaring that ‘this is the way I am going to kill one or two tonight.’ He then, still carrying his rifle went into the Mirando tent, stumbled over some harness, fell down, got up and asked who had pushed him. Being told that nobody had, he said ‘I’ll go out and kill two or three.’ He walked outside and began firing his rifle. He discharged three shots, the third striking Machado, who was standing at the entrance of Carrissosa’s tent, a short distance away, killing him instantly. . . . Appellant's contentions against the sufficiency of the evidence resolve themselves into two propositions: 1. That he was drunk at the time of the shooting, that there is no proof of malice on his part toward or against Machado, but no enmity between them is shown to have existed and there was therefore no motive for the crime; . . . The evidence leaves little doubt but that the defendant’s ugly passions were aroused by the liquor which he voluntarily drank, that, as the Indians phrase it, ‘his heart was bad.’ There is no evidence of personal enmity or hostility on the part of defendant against the deceased, but there is evidence that his blood lust had been aroused and that he was willing to slay, and did slay, without provocation. This evidence clearly indicates malice. Whether it be called *107express or implied (Pen. Code, sec. 188) is immaterial. There is enough to justify the jury in finding that he stepped to the door of the tent with the deliberate intention unlawfully to take human life, and, upon the other hand, there is enough to support the finding that there was no provocation at all, and that the circumstances attending the killing showed an abandoned and malignant heart. Of course, his voluntary intoxication was no excuse for his crime (Pen. Code, sec. 22), and the question whether by reason of that intoxication he was incapable of forming a specific criminal intent was one for the jury to pass upon under proper instruction, which the court gave, and they decided the question against him. There was no motive for the crime in the sense that it was shown to have been for revenge or the outgrowth of pre-existing hostility, but while evidence of motive is always permissible and ofttimes valuable, it is never essential to the proof of a crime. (People v. Durrant, 116 Cal. 179 [48 P. 75].) Yet, in another sense, motive sufficiently appears. The act was the expression of a mind inflamed by intoxicants, brutal, malignant, and on murder bent. ” (Italics added.)
The foregoing quotation furnishes ample support for the jury’s implied finding that the fatal shooting of Riley was both intentional and premeditated within the statutory definition of murder of the first degree.
In People v. Howard, 211 Cal. 322, 329 [295 P. 333, 71 A.L.R. 1385], wherein the degree of the crime was reduced, the court stated, “there is a dearth of evidence tending to show the conditions as they existed at the time of the homicide, and from which it might reasonably be held that the murder was, in fact, wilful, premeditated and intentional. In this regard, the state failed to satisfy the burden of proof.” This is not true in the instant case. Here, there is an abundance of evidence showing the circumstances that existed both before and at the time of the homicide. Defendant was quarrelsome for a day preceding the homicide; he was “particularly” peeved at deceased; he threatened to go home and get his gun and shoot deceased’s heart out; he did get his gun and he did fatally shoot the deceased approximately one hour later; and the majority recognizes that “The overwhelming weight of the evidence, including defendant’s own testimony and extrajudicial statements, establishes that defendant was not an innocent person suddenly confronted with imminent danger of great bodily harm” but “by his quarrelsome and *108challenging attitude, not only toward deceased but others . . . had created an atmosphere of antagonism that might naturally lead to physical combat.” It is difficult, in the face of the evidence and such a statement, to justify the conclusion of the majority that the jury could not find the killing to have been intentional and premeditated.
I am satisfied that the evidence overwhelmingly supports the jury’s verdict that the murder was of the first degree. As conceded in the majority opinion, the appraisal of the evidence “is primarily a jury function and within a wide field of discretion its determination is final.” In the face of the substantial prosecution showing, the jury did not abuse the discretion confided to it and, under settled principles, its verdict should stand undisturbed by this court.
Shenk, J., and Edmonds, J., concurred.