The first question raised on the appeal for the consideration of the court is, whether the bill of indictment is sufficient in substance and form to support the finding by the jury of murder in the first degree.
The indictment is in the form generally used in this State, and did not charge that the killing was done with premeditation and deliberation. The contention of the prisoner’s counsel is that Section 3, Chapter 85, of the Raws of 1893 conflicts with Section 11 of Article 1 of the State Constitution, and that therefore the statutory provision must be declared void. It is ordained in that Article of the Constitution that “in all criminal prosecutions, every man has the right, to be informed of the accusation against him” .... The Act of 1893, Chapter 85, does not deny to the accused that right. Murder was the charge made against the prisoner. He knew (by fiction of law at least) that prior to the Act. of 1893 it was not necessary either to aver or prove deliberation and premeditation as to the killing. It was sufficient if *1074malice was shown. The Act of 1893 was to that extent favorable to those who, after its enactment, might be indicted for murder. But such as might be, after that time, indicted for murder were informed by Section 3 of the Act (notwithstanding the advantage given to those charged with murder) that the form of the indictment in use in the State would not be altered, and that the jury upon the evidence should determine in their verdict whether the crime was murder in the first or second degree, premeditation and deliberation being the features which constitute murder in the first degree. The very words of the Act give a clear notice of the. form of indictment to be used, and what could be shown in evidence by the State, and the duty and power of the jury to inquire into and weigh the evidence and to determine whether the homicide was committed with premeditation and deliberation. Our statute, then, does not not change the quality of the crime of murder, as the offense was defined before the enactment of the statute. The division simply notices, concedes, that the atrociousness of the crime may be greater or less according to conditions and surroundings, and the punishment to be inflicted should be greater in some instances than in others. Many of the States of the Union have statutes similar to ours, and a majority of the courts sustain the sufficiency of bills of indictment that do not contain the averment of premeditation and deliberation.
The question has not been directly raised in this court, but in a number of cases that have been before us, since the Act of 1893, our attention has been called to the form of the indictment, and none of the judges, so far as this writer knows, has had doubts about the sufficiency of such indictment. The point was virtually decided in State v. Covington, 117 N. C., 866. We think the ruling of his Honor in refusing to- have the judgment arrested for insufficiency of the indictment was correct.
*1075Whatever difference of opinion may have existed in regard to the construction of the Act of 1893, Chapter 85, before or at the time of the decision of Fuller’s case, it is now conceded that by the statute the crime of murder in the second degree is as at common law, which is defined to be: “When a person of sound memory and discretion unlawfully killeth any reasonable Creature in being, and under the King’s peace, with malice aforethought either express or implied.” Bit. Com., star p. 195. To constitute murder in the first degree, since the passage of the statute, the same elements are requisite with the additional and essential one of “premeditation and deliberation.” That from the use of a deadly weapon, either proved or.admitted, the law implies malice and the burden is upon the prisoner to show, if he can, matter in excuse, justification or mitigation. It is the duty, and incumbent upon the State, if it will ask for a conviction of murder in the first degree, to prove “premeditation and deliberation.” They will not be presumed or implied from the use of a deadly weapon. State v. Fuller, 114 N. C., 885; State v. Rhyne, 124 N. C., 847.
The present Chief Justice, who dissented in Fuller’s case and Rhyne’s case, said in his dissenting opinion in the last named case, in speaking of the construction placed on the Act in Fuller’s case, “having reiterated it since, we must take it now as settled.” These decisions, however, also hold that no particular length of time is necessary to constitute premeditation, 124 N. C., 857. The court will not undertake to prescribe any arbitrary rule defining the time during which it is necessary that the prisoner “premeditate and deliberate.” In the several cases which have come before this court upon appeal, it has adhered to this construction of the statute, the division of opinion among its members being in regard to the question whether there was or was not evidence of “premeditation and deliberation.”
*1076We assume that it is also well settled that if one, attempting to commit a premeditated and deliberate murder, shall, while in the act, and as a result of it, kill another, he will in respect to the person killed, be guilty of murder in the first degree; as if one lay poison for A and it is taken by B from which he dies, it is murder in the first degree; or if one, of malice either express or implied but without premeditation, be in the act of killing A and while in the act and as a result thereof he kill B, it is murder in the second degree. In both these cases however, there must be a legal connection or relation between the original purpose and act and the unexpected result. In a certain sense of course, every act is related to every other and preceding act of a human being, but the law being based upon principles applicable to the practical transactions of human life avoids impracticable scholastic refinements and adopts such rules as experience has shown to be capable of practical application.”
His Honor charged the jury: “If the killing of Stevens was not the result of an effort to kill Clements, but was intentionally done, then the prisoner could not be convicted of murder in the first degre for such killing unless the jury find beyond a reasonable doubt, that the prisoner, before the shooting, coolly determined to kill Stevens, and had delib-eratd and premeditated on it, and as a result had formed a fixed purpose to kill; in other words, to convict a prisoner of murder in the first degree, you must be satisfied beyond a reasonable doubt either that the prisoner had with deliberation and premeditation formed a fixed purpose in his mind, before he shot, to shoot and kill Clements, and, in an effort to do so> killed Stevens, or he had with deliberation and premeditation formed a fixed purpose to kill Stevens and in pursuance of such fixed, determined, premeditated and deliberate purpose he did kill Stevens; in either of these situations, he would be guilty of murder in the first degree.”
*1077We are not inadvertent to the difficulty which is always involved in the question whether testimony is. of sufficient probative force to constitute evidence, or whether it is a mere scintilla. The rule is clear that testimony must be sufficient to do more than raise a mere conjecture or suspicion. The difficulty is found in applying it to particular cases as they arise. Certainly this court will not interfere with the conclusion of a judge and a jury that there was not only some, but sufficient evidence to bring the mind to a conclusion of guilt beyond a reasonable doubt, except in a very clear case of error. In this case, with the full statement of the uncontradicted testimony of an eye witness, which is consistent and bears the impress of truth, we are forced to- the conclusion that there was not sufficient evidence that the prisoner killed the deceased “in an effort to kill Clements, or that he had with deliberation and premeditation formed a fixed purpose to kill Stevens.”
We do not pass upon or express an opinion in regard to his purpose to- kill Clements, but assuming for the sake of the argument that he had done so, he did not have his pistol pointed towards him, but, as Stevens came in, “he raised his pistol.” The position of Clements at the moment that Stevens came in the car rendered it impossible for the prisoner to shoot at him and hit Stevens. Clements- says expressly that, as Stevens came in, the prisoner raised his pistol and shot. The coming in of Stevens, who- was doubtless attracted by what had occurred and the noise, was a separate and independent incident in the transaction; it bore no legal relation to the then condition of the parties; it was the intervention of a new element or agency, and brought about an unexpected and, in a legal sense, independent result. The shooting of Stevens by the prisoner was without necessity. He was not armed; his evident purpose was to- interfere and aid the conductor and porter in compelling the prisoner and *1078those with, him to behave themselves; he was free from blame. The prisoner, by his prayer for instructions, prepared by faithful, able and learned counsel, concedes that he is guilty of murder in the second degree, which excludes all idea of excuse. i
While we adhere to the decisions of this court that it is not necessary that any “particular time” shall elapse for the prisoner to meditate and deliberate, yet the very term necessarily involves the idea that there must be sometime, however short, between the first conscious conception and the completion of a purpose or determination in his mind. Eitz James. Stephens, in his “History of the Criminal Law of England,” gives an interesting account of the efforts made by the sages of the law to work out a satisfactory definition of “malice”, “malice aforethought”, and “malice prepense”. The author suggests that he has solved the difficulty in his “Digest”. The conclusion to which we are brought is that it affords another of the many illustrations of the poverty of language in giving expression to mental conceptions. We find that the words “foresight”, “forethought”, “forecast” and “premeditation” are used as synonyms. “A man shows his want of premeditation who acts or speaks on the impulse of the moment.”
It is impossible to conceive of an act committed under the conditions described by Clements, in the killing of the deceased, as being the result of “premeditation and deliberation”, or the expression of a “fixed purpose”. Of course, it is for the jury by their verdict to fix the degree, but it is not contemplated that they shall do so arbitrarily or in accordance with their opinion as to the kind or quantum of punishment which should be inflicted. Their verdict must be based upon competent evidence under a fixed rule of law. In some States of the Union, the question of punishment is left with the jury. Such has never been the purpose or the policy of the legislature of this State.
*1079We should, in accordance with the example set by those who have preceded us, have been content to conclude this opinion with the declaration of the law of the case and our reasons therefor, but for the suggestion urged upon us that, in some way, we are giving encouragement to^ lawlessness and “lynching”. The very remarkable suggestion is made and seriously insisted upon, that it is our duty in the decision of this case to consult criminal statistics, newspaper reports of lynchings and threats thereof, that we may be the better enabled to know and declare what the law is by doing so. Just how, or by what mental process, this court is to be enlightened in this way, we are not very clearly advised. Nor can we conjecture what certain persons or classes of persons may say or do, because we have, in the discharge of our duty, adjudged the prisoner to be entitled to a new trial. “Such an argument should not be addressed to courts, which cannot make but only construe and administer the law as it is written. If worthy of consideration, it should be directed to the legislature as a reason for changing the law.” This is the language of a great and learned judge (Bynum, J., in Bank v. Greene, 78 N. C., 247.) To the suggestion that the construction put upon the statute in Fuller’s case decided in 1894 is “unfortunate”, we note that the personnel of this court has since that time undergone many changes, and the case has at almost every term been cited with approval, and conceded to be the controlling authority for this court. It is also worthy of note that the legislature has met at five different sessions and the law in this respect has not been changed. We have no other means of ascertaining what the law is. The conclusion which we have reached is sustained by the uniform current decisions of this court, and our best consideration, guided not by criminal statistics, frequently misleading, nor by an attempt to ascertain or direct public sentiment, but by a determination “to administer justice without respect to persons, and to do *1080equal rights to the poor and rich, to the State and to individuals.” Whether such suggestions (which do not come from counsel) that the judges, either from incapacity to know the law, or mental bias or sentimental weakness, are inefficient or incompetent, are calculated h> suppress lawlessness, is well worthy serious consideration. If we are to have “a government of law and not of men”, the courts must be content to move in the orhit assigned to' them by the Constitution, declaring the law as it is written, “knowing nothing of the parties, everything about the case.” When we “go outside of the record” to decide causes, we invite counsel to address to us arguments fit for other forums than this, and ourselves embark into unknown and unsafe waters. The law, instead of being a fixed “rule of action” for the guidance of the citizen and protection of his life, liberty and property, becomes the expression of the opinion of men set in high judicial position, varying according to the drift of public sentiment or temporary conditions. This is not the example or teaching of the Elders. We will not do the people of this State the injustice to believe that they desire their judges to construe the law otherwise than it is written by themselves, or to hasten any man, however degraded or humble, to his death in accordance with ai*a’uments drawn from other sources than the “law of the land.”
We think that the prisoner was entitled to have the jurv instructed, as prayed by Him, that there was no evidence of murder in the first degree, and that, for the refusal to give it, he is entitled to a
New Trial.