(dissenting).
I dissent.
I suppose that when a man’s life is at stake every reasonable safeguard should be erected to protect his innocence. However, the erection of barriers should not destroy the practical enforcement of the law and make it next to impossible to prosecute those who kill. The trial óf a murderer is a practical business, controlled by legislative enactments which prescribe indistinct refinements, and directed by individuals who are not omniscient. Judges are mortal and instructions are difficult to conceive and prepare. Most judges are not able to submit letter-perfect instructions, eliminate every inaccuracy, or group words and phrases together with such consúmate skill that an appellate court can not find some reversible error. The most, I believe, we can require is that a judge must instruct a jury in such a way that improper elements can not be molded together as a basis for an erroneous conviction. Not only do trial judges have difficulty in properly cataloguing the degrees of murder and properly enumerating the elements that go with each class, but this court has found it arduous and *276troublesome to point out the differences and lay down principles which will assist trial judges in future cases. I mention this because today’s opinion seems to me to add confusion rather than clarity to what is a befuddled state of the law. By this decision we not only overrule what I believe to be the holding and result in State v. Russell, 106 Utah 116, 145 P. 2d 1003, but, in addition, we appear to misinterpret the common law.
As outlined in the opinion of the Chief Justice and the concurring opinions of Mr. Justice WADE and Mr. Justice WOLFE, this killing was the aftermath of a drinking party. Due in part to the condition of the participants, a clear picture of what transpired is not disclosed. Criminations and recriminations are involved, but, if the jurors chose to believe the circumstances and evidence which were not too much warped by interest or intoxication, they could find beyond a reasonable doubt that the deceased, without any provocative act on his part, was run off the road by the defendant, that defendant got out of his car with a loaded weapon, walked back, after making certain threats to shoot and becoming involved in an altercation shot deceased twice while deceased was sitting in his automobile. A clear-cut motive for the shooting was not shown, but there must have been some reason or excuse as the deceased was killed under facts and circumstances which do not permit a finding that he shot himself.
In view of the state of the evidence and the circumstances pointing towards the defendant as the wrong-doer, the trial judge apparently decided to instruct in accordance with his understanding of the principles of law as announced by this court in the case of State v. Russell, supra. He must have further decided to apply these principles to the facts before him and not submit to the jury abstract propositions of law. In so doing I believe he complied with the admonitions repeatedly given by this court.
*277In State v. Thompson, 110 Utah 113, page 131, 170 P. 2d 153, page 162, Mr. Justice Wade, speaking for the court, said:
“Defendant urges that the court erred in giving general abstract instructions, using ancient and highly technical legal terms not understood by laymen, giving instructions which had no application to the facts in this case, and in not applying the law to the facts which were supported by the evidence, and that the jury was probably misled thereby and the case should he reversed on that account. We have repeatedly criticized the giving of abstract statements of the law to the jury, and held that it is the duty of the court to apply the law to the facts supported by the evidence and to not instruct on any question which is not involved in the case under the evidence.”
I need not cite other cases to the effect that the trial judge should mold his instructions to fit the facts, as this court has on many occasions castigated trial judges for giving instructions dealing with abstract propositions of law and the two concurring justices in this case make mention of the principle that the instructions should blend themselves into the facts disclosed by the evidence.
The record establishes that there were two slugs which entered the body of the deceased, and, according to the doctor’s testimony, either could have been fatal. The trial judge, in carving out his instructions, concluded that there were three possible ways in which the evidence indicated the deceased might have been shot: The first possibility was that the defendant fired the two shots while standing near the automobile; the second possibility was that the one shot was fired accidently and while the defendant was scuffling with Herrera and the second shot was fired into the body of the deceased after the defendant proceeded over to the car; the third possibility was that the defendant intended to shoot Herrera or Mondragon and in firing at them he shot and killed the deceased. He, therefore, fashioned each instruction on murder and manslaughter to fit the three assumed possibilities.
*278In view of the results reached by the majority, the only question of importance therefore becomes did the trial judge carve out an erroneous instruction on second degree murder? I first desire to mention that I do not find a single request for any instruction and I do not find any exception to a given instruction which would in any way apprise the trial judge of any error relied on by members of this court to reverse the conviction. Again, with life in the balance, these omissions should not be overlooked if the errors made by the trial court were apparent, significant and such that a juror might be misled, but the defects we point out were not apparent to counsel of many years experience and the members of this court have encountered difficulty in deciding the nature, extent and effect of the claimed error. The distinctions between murder in the first and second degrees are subtle and baffling to both jurors and judges and in this case they fade into nothing. Only by the barest of possibilities might some juror have been misled.
I do not completely quote all of the instruction given by the court on first and second degree murder as some of the omitted paragraphs deal with the same offense, provided, the jury found the defendant shot only once with intent to kill or intent to do great bodily harm instead of twice. The court in defining malice, deliberation and similar terms gave the following instructions:
“The criminal code of this State defines murder as the unlawful killing of a human being with malice aforethought. So far as you are concerned in a determination of this case, murder in the first degree is an unlawful, wilfull, deliberate, and premeditated killing with malice aforethought. The terms, ‘aforethought, premeditation, and deliberation,’ mean to think out, plan or design beforehand. The term, ‘deliberation,’ has the additional quality or meaning of planning or designing in a cool state of the blood or mind. The term, ‘unlawful,’ means without legal excuse or justification. The term ‘wilfull,’ implies simply a purpose or willingness to commit the act or make the omission referred to. It does not require any intent to violate law or to injure another or to acquire any advantage.
“To have the malice necessary to constitute murder in the first degree the slayer must before the commission of the act or acts re-*279suiting in the death of the deceased have deliberately and premedi-tatedly formed a specific intention or design to kill the person slain; * * , * ”
The instruction on first degree murder, with omissions immaterial to this decision, is as follows:
“If your minds are satisfied beyond all reasonable doubt that the Defendant while standing near the automobile of the deceased fired two shots into the body of the deceased, and that the deceased died as a result of the wounds so inflicted, and if your minds are further satisfied beyond all reasonable doubt that at the time such shots were fired the Defendant acted wilfully and with deliberate and premeditated design to kill said Max Lopez, and if such design or intent was formed before the firing of such shots, then by your verdict you should find the Defendant guilty of murder in the first degree.”
It will be observed that the definition as used is couched in the exact words of category (a) of Section 103-28-3, U. C. A. 1943, later quoted and that malice includes a specific design or intent to kill.
Construed together and removed from the realm of the abstract, as the last one is, these instructions correctly state the law of first degree murder. I believe all members of the court agree with that statement. By the verdict it returned in conformity with these instructions the jury must have found that at least one of the shots was fired by the defendant while he was acting maliciously, wilfully, in a cool state of blood, with a deliberate and premeditated design to kill, and with such design and intent formed prior to the time the shot was fired. But other members of the court say the jurors might not have reached the same decision had they known that the same elements might be the basis for a verdict of second degree murder. Even though such an assumption is speculative, and the elements of the two graduations are not the same, I believe it can be established that the jury was informed in substance it could return a verdict of the lesser offense of second degree mur*280der if the standards necessary to convict for first degree murder were not met by the state.
I would concur with the other members of the court if I were of the opinion that intent to kill was always a component of second degree murder or that it was an essential element in this case. But, as I read and understand the authorities, at common law intent to kill was not necessary to.establish murder and this included all murders as there were no degrees. Mr. Warren, in his text on Homicide, Yol. 1, paragraph 65, states the common law rule and its later statutory modifications to be as follows:
“Necessity for Intent. — By the common law, an unlawful killing with malice aforethought, even though the manifest intent or purpose was to do simply a bodily harm, but not to take life, constituted murder. Therefore purpose or intent to kill does not constitute an essential ingredient in the crime of murder by the common law. The necessity for intent to kill as an element in the crime of murder, depends, to a great extent, upon the wording of the statutes, in the several jurisdictions and the construction thereof by the particular state courts.”
Mr. Wharton’s 12th edition of Criminal Law is in substantial agreement with the statement hereinabove quoted. In paragraph 502 of his work the following statement may be found:
“According to the older common-law authorities, not only was it murder to kill another, though the intent was merely to severely hurt, but it was considered murder if homicide were unintentionally committed by a person when engaged in a collateral felony. It is true that so long as all killing incidental to a felonious purpose was punishable with death there was no practical call for a classification of such killings. But when under humaner auspices it was felt that death should only be assigned as a punishment to homicides specifically and maliciously intended, it was found necessary to distinguish between this class of murders and murders in which there was no such intent. It was for this purpose that legislative action was invoked. The statute, however, in which the distinction first found formal expression was not a law imposed by the legislature of the people, but a law which had grown into practical acceptance with the people, and had then been put into technical shape by the legislature. Juries for generations had refused to convict for murder *281unless a specific intent to take life had been shown; or, if they did convict, when there was no such proof, it was with a recommendation to mercy, which withdrew from the sentence at least the incident of punishment by death.”
It is conceded by practically all authorities that the reasons for gradations of murder was to adopt more humane methods of dealing with individuals who committed murders of a less aggravated type and to permit the exaction of the death penalty only for the perpetrators of murders which could be catalogued as savage, inhuman, brutal, or aggravated. It must have been with this thought in mind that our legislature concluded to prescribe for degrees of murder. To accomplish this the legislature adopted what is now Section 103-28-3, U. C. A. 1943. I quote this section but in so doing sub-divide the section and idtentify the different classes of first degree murder by inserting small letters:
“(a) Every murder perpetrated by poison, lying in wait or any other kind of willful, deliberate, malicious and premeditated killing [is murder in the first degree]; or
“(b) committed in the perpetration of, or attempt to perpetrate, any arson, rape, burglary or robbery; or
“(c) perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than the one who is killed; or
“(d) perpetrated by any act greatly dangerous to the lives of others and evidencing a depraved mind, regardless of human life; —is murder in the first degree.
“Any other homicide committed under such circumstances as would have constituted murder at common law is murder in the second degree.”
The provisions of subsection (a) of this section make it apparent that the legislature included in the category of first degree murder those which were wilfull, deliberate, malicious and premeditated, and, by implication, excluded them from the second degree murder category. If the facts *282were such that the murder met those standards then the legislature concluded that the penalty for first degree murder should be imposed. Conversely, if the elements of wilfullness, deliberation, maliciousness and premeditation were not present, but other elements at common law which were not enumerated were present, then the offense was to be scaled down to the crime of second degree murder. Even when classifying the most aggravated types of killings as murders in the first degree, the legislature did not prescribe that the element of intent to kill must always be present in first degree murder. It can be included as an element if the facts justify its prescription, but even then, to sustain a conviction, it must be preceded or accompanied by deliberation, premeditation and malice. If intent to kill was not necessary in common law murder and it is not an essential element in some of the first degree murder offenses mentioned in Section 103-28-3, U. C. A. 1943, the legislature could not have intended to include it as a necessary and essential element in every second degree murder. The illustration of killing while committing an abortion used by Mr. Justice WOLFE aptly portrays a case of second degree murder where the offender did not intend to kill, rather, he intended not to kill.
This court not only recognized that intention to kill is not a necessary component in murder, but we went much further when in the case of State v. Russell, supra, we held that it was prejudicial error for the judge to include intent to kill as a necessary part of murder in the second degree.
I quote from that case, page 126 of 106 Utah Reports, page 1007 of 145 P. 2d:
“It is universally recognized, under such statutory provisions and the common law, that a specific intention or design to kill is not necessary in order to commit murder. All that is required is that the killing be unlawful and that it he done with malice aforethought. It is the malice which is required to have been thought out beforehand, and not the killing.”
*283Again at page 131, 106 Utah Reports, at page 1009 of 145 P. 2d:
“As pointed out before, it is not necessary in order to commit murder in the second degree, to have a specific intention or design to kill. Under the facts and circumstances in this case all that is necessary in order to constitute murder in the second degree is that the defendant, when he struck the fatal blow, had a specific design or intention, thought out beforehand, to cause great bodily injury to the deceased, or an intention or design thought out beforehand to do an act, knowing the reasonable and natural consequences thereof, would be likely to cause great bodily injury to the deceased. See authorities herein above cited on what constitutes, murder. It was not necessary for the defendant to have a specific intention to kill the deceased in order to commit murder in the second degree and the court erred in instructing the jury that it was.”
It is interesting to note that this court reverses the present conviction because the judge failed to include or mention intent to kill in his charge for second degree murder, while, in that case, we reversed the conviction because of prejudicial error in including intent as an element of second degree murder. I quote from page 132, 106 Utah Reports, page 1010 of 145 P. 2d:
“By instructions 9 and 10 the jury was told that before they could find the defendant guilty of murder in the first or second degree they must find that he had an intention or design to kill the deceased. If the jury followed these instructions and were satisfied that the defendant when he struck the deceased had previously formed an intention to kill her he was not prejudiced because under such circumstances he was guilty of murder in the first degree. On the other hand it might well be that had the court expressly told the jury that murder committed with the intention to kill under the circumstances of this case is murder in the first degree but such murder committed without that intention is only murder in the second degree that the jury might have concluded that the defendant had no such intention and found him only guilty of murder in the second degree, whereas this distinction not being expressly pointed out, the jury might have, without giving that question particular attention found him guilty of murder in the first degree. In view of the fact that the evidence tends to show no intention to kill this was prejudicial error.”
*284If intention to kill is not a requirement in every charge of second degree murder I am unable to find anything in this record which would justify a reversal because the court did not include it in the instructions dealing with that degree of murder. There are only six hypotheses which the trial judge could reasonably find were within the limits of the evidence. They were: (1) the shooting was deliberate, premeditated, malicious and with intent to kill deceased; (2) the shooting was deliberate, premeditated and with intent to do great bodily injury to deceased; (3) the shooting was done in the heat of passion engendered by a fight; (4) the shooting was done without specific intent because of intoxication; (5) the shooting was accidental; and (6) the shooting was done by some one other than the defendant. The court instructed on all these hypotheses.
In defining the crime of second degree murder, the manner in which the trial judge fitted it to the evidence is shown by his definition and his subsequent instructions. The definition as given by the court is as follows:
“So far as you are concerned in a determination of this case, murder in the second degree is the unlawful slaying of a human being where the slayer before the commission of the act resulting in death had a specific design or intention thought out before hand to cause great bodily injury to the deceased or an intention or design thought out before hand to do an act knowing the reasonable and natural consequences thereof would be likely to cause great bodily injury to the deceased.”
The instruction on second degree murder, with unimportant deletions, provides as follows:
“If you entertain a reasonable doubt as to whether the Defendant committed murder in the first degree but your minds are satisfied beyond all reasonable doubt that the Defendant while standing near the automobile of the deceased fired two shots into the body of the deceased and that the deceased died as a result of the wounds so inflicted, and if your minds are further satisfied beyond all reasonable doubt that at the time of the firing of such shots the Defendant acted wilfully and with the deliberate and premeditated design to do Max Lopez great bodily harm and that such design or intent-*285was formed before the firing of such shot, then you should find the Defendant guilty of murder in the second degree.”
If there is any way by which a court could assume another hypothesis for second degree murder which would include the intent to kill then it could only be by an assumption that the evidence touching on malice, premeditation, or deliberation was not sufficient to justify a conviction of first degree murder. There is no evidence to justify such an assumption as the record does not disclose that time or defendant’s mental condition did not permit premeditation or deliberation and there is no evidence by which the court could conclude the malice necessary for first degree murder was diluted or lessened. This is not to say that under our system a jury could not find that some of the elements were not established to their satisfaction beyond a reasonable doubt, but this is quite a different principle from the duty of the judge to so instruct.
I am at a loss to determine how a trial judge could instruct as to the quantum of malice, deliberation or premeditation except in the manner the trial judge used in this case. If intent to kill must be kept in instructions dealing with both first and second degree murder then the court must in some way instruct the jurors that if the killing was not so malicious, so deliberate, or so premeditated as to amount to first degree murder, then the jury should find the defendant guilty of second degree murder. Of course, the quantity of malice, deliberation and premeditation are not matters which can be accurately delineated by words. These can only be sufficient or insufficient to sustain a conviction for first degree murder when the jurors are either convinced beyond a reasonable doubt or not convinced that the state has produced the quality and quantity of evidence necessary for a conviction.
It is my belief that simplification, understanding and practicability dictate that the jury be given a positive in*286struction as to all elements necessary to constitute the crime of first degree murder, and then a positive instruction on those essential elements of second degree murder made necessary by the facts of the case; that those cases which may not fit the pattern of first degree murder because of being less brutal or savage be controlled by the instruction which is given in every murder case and which permits the latitude sought by members of this court. The trial judge twice instructed the jurors as to their duties if there was any reasonable doubt as to whether all elements of the crime of first degree murder had been proven beyond a reasonable doubt.
Instruction No. 7 commences as follows:
“If you entertain a reasonable doubt as to whether the Defendant committed murder in the first degree * * * then you should find the defendant guilty of murder in the second degree.”
and ends as follows:
“If your minds are satisfied beyond a reasonable doubt that the Defendant under all the facts and circumstances shown in evidence in this case committed murder as defined to you in these instructions, but entertain a reasonable doubt as to which of the degrees ¡of murder he is guilty, then you should find him guilty of murder in the second degree.”
The foregoing paragraphs seem to me to be the residual clauses which permit the jury to graduate malice, passion, premeditation, wilfullness, intent and other elements up and down the criminal scale. This seems more desirable than to have the court submit two instructions for seperate graduations of murder each including as an element “intent to kill.” I would permit the court to set up the standards for the gravest of all murders and then in effect say to the jury,
“If the evidence does not quite reach the standards prescribed for the major degree you should convict of the lesser degree.”
*287This would allow the jurors to determine the guilt of the accused, grade the offense in accordance with its barbarity, savagery, and maliciousness, or temper their verdict because of influences bearing on defendant’s state of mind at the time of the killing and yet prevent minor imperfections in instructions from freeing criminals who richly deserve punishment.
I would be much more inclined to concur in an opinion which held that the state had not established the defendant committed the crime of first degree murder beyond a reasonable doubt. If the evidence is sufficient to sustain the conviction then the instructions could not be prejudicial. The admonishment given by the court to the effect that the jurors should not find the defendant guilty of first degree murder if they entertained a reasonable doubt as to whether the killing was wilfull, deliberate and premeditated operated to cure any error of omission assuming thé presence of one. The jury was fully instructed as to the meaning of the terms wilful, unlawful, premeditation, deliberation and malice. The definitions given by the court informed the jury that before the verdict of guilty of murder in the first degree could be rendered the defendant must have formed a specific intention or design to kill, must have thought out the plan beforehand, must have conceived the plan in a cool state of blood or mind, and must have killed without legal excuse or justification. Every element of first degree murder was specifically enumerated and specifically defined and the jury, by its verdict, found that all were present beyond a reasonable doubt. If the necessary malice, premeditation and deliberation were present, as found by the jury, then the element of intent to kill would make the offense first degree murder. If those elements were not present then the jury was duty-bound to follow the instruction given by the court and reduce the crime to second degree murder, regardless of defendant’s intent.
*288As I understand the other opinions, if there was an error the same was an error of omission, that is, the instruction as given on second degree murder was not erroneous but it should have gone further and suggested to the jury that if they found the shots were fired with intent to kill or with intent to do bodily harm it could return a verdict of second degree murder. Being only an error of omission, it is my contention that the instructions as given adequately presented to the jury the element other members of the court feel was omitted.