Although not in complete harmony with the testimony that was given by each of the several “eye-witnesses ’ ’ to the important incidents which preceded and led to the death of one Price at the hands of defendant, an examination of the transcript of the evidence that was adduced on the trial of the action warrants the conclusion that the jury was justified in its implied belief that the following facts had been established, to wit:
So-called “Negro Quarters” are situated in a “clearing” that lies about three-fourths of a mile from the town of Quincy. Apparently the “quarters” consist of two rows of small houses or cabins, in size about fifteen by twenty feet, one row being opposite the other. Number 13, of one of such rows, was occupied by defendant and his wife. A man named Bullock with his wife, lived in number 11, which was separated from number 13 by a distance of about sixty-eight and one-half feet, within which intervening space one other cabin, number 12, was located. At approximately 7:30 o’clock P. M. on a day in the latter part of June, while it was “first dusk”, at a point near the rear of Bullock’s cabin (number 11), defendant accosted Price in a friendly manner and then and there in the presence of Bullock asked Price to repay to defendant the sum of one dollar which he asserted that Price owed to him. To that suggestion, Price responded that theretofore he had paid that amount to the defendant and *614 urged defendant to go with him to see a Mrs. Smith, by whom Price declared that he could “prove” the correctness of that statement. Defendant declined and refused to be thus convinced of his asserted error with reference to his claim on Price. Although aside from the fact that each told the other that he was “crazy”, neither defendant nor Price “spoke a cross word”. Immediately following that “quarrel” defendant went to his cabin (number 13) and Price accompanied Bullock to the front of the cabin that was occupied by the latter (number 11), where they found Mrs. Bullock seated upon a bench and upon which both Price and Bullock also thereupon sat. Within two or three minutes (or possibly three or four minutes) next ensuing, Price arose and went to one comer of the cabin that was occupied by defendant, where in a listening attitude he remained for a space of three or four minutes; thereupon he entered defendant’s cabin. A few minutes later, upon emerging therefrom he carried an unloaded rifle that was the property of defendant. Thereupon he returned to the seat that theretofore had been occupied by him on the bench that was located in front of Bullock’s cabin. At that time and place Bullock, his wife and another woman (Price’s housekeeper) were present. Within “quite a few minutes” thereafter, defendant’s wife joined those who were thus assembled and then and there asked Price to give to her not only the dollar which defendant had asserted that Price owed to him, but also defendant’s rifle whielj Price had retained in his possession. To that request Price replied, “I don’t owe Wells (defendant) no dollar; I paid the dollar. I ain’t going to give you the gun; I will keep the gun”. And as further was stated by the witness who gave that testimony, “While she was prevailing with Price for the gun Mr. Wells (defendant) come out and yelled ‘Look out!’ The gun (in the hands of defendant) went off when I got off the bench . . . By the time I got three or four feet from the back end of the house he made the second shot . . . By the time she (Bullock’s wife) got in (the rear door of the cabin) and I fastened the door the third shot went off”.
With reference to the circumstances which resulted in the fact that Price had possession of a rifle that was the property of defendant, Price’s housekeeper testified in substance that after Price had left the front of Bullock’s cabin, she joined Price and as they were about to pass in front of that cabin *615 "they” saw defendant inside his cabin with the rifle in his hand, apparently on his way through the front door entrance of his cabin to the outside thereof; that thereupon Price said "he couldn’t out run that” and went into defendant’s cabin, "grabbed hold” of the rifle that defendant held in his hands, and after a struggle with defendant, succeeded in wresting it from his possession; that in the course of that struggle, Price said to defendant "Why do you want to hurt me. I don’t want to hurt you”; that thereupon Price "come on out and told Wells ‘Why act like that?' ”; and that after Price had gone back to the front of Bullock’s cabin, in substance he said to Mrs. Bullock, "Don't run home, girl. I am not going to hurt anybody.” He said, "I am not going to hurt nobody and I don’t want nobody to hurt me”. And that in answer to the request made of Price by Mrs. Wells two or three minutes afterward, that he give defendant’s rifle to her, Price said, "I will not give it to you; I want no trouble; I don’t want to hurt Wells. I don’t want Wells to hurt me; I am not going to hurt him.”
Defendant was not sworn as a witness; but in his behalf, with reference to the incident in which it appeared that Price wrested the rifle from defendant, the wife of defendant testified:
"When Wells walked in (after the quarrel) Stella Vaughn (Price’s housekeeper) and myself was sitting in the kitchen talking and he went on through to the bedroom; so after he was in there awhile I got up and went in—while talking to Estella. When I was in there talking to Wells Stella says ‘Net, I’m going, I will be back', and shortly after that Price walked in the back door. Someone knocked at the back door; I said ‘who is that’. He didn’t say anything, so Wells said ‘don’t come in here Price, don’t come in here.’ Then Price went on around to the front door and I heard him and then I pulled the door open and I said ‘Price, don’t come in here, don’t come in here Price’. Wells said ‘don't come in here’. When he got to the middle door to come into the bedroom Wells said ‘didn’t I tell you not to come in here’. When he did that he jumped and Wells got the gun. Shoved Wells on the bed and they were fussing in there about five minutes before Stella came in. When he taken the gun he walked out and Stella walked out behind him and I was behind Estella. I walked out and told Wells ‘I will get the gun’ and while I went out to get the gun and while talking to Price *616 to give me the gun, while standing in front of him, and Price said ‘No, Home girl, I will not give it to you.’ I said ‘give me the gun’; he said: ‘I will not give it to you.' I said ‘don’t you owe Wells a dollar’; he says ‘no’, and at that time Wells said ‘look out’. Q. Then there was a shot fired? A. Then there was a shot fired.”
It also appears that after defendant had fired the first shot from his shotgun, and all the persons, including Price, that immediately theretofore had been in front of Bullock’s cabin, in an attempt to escape injury, had run each in a direction different from that which was taken by either of the others, defendant followed Price and fired two additional shots from the shotgun. Within a few minutes thereafter Price was found dead, with defendant’s unloaded riñe clutched in his right hand. It is unquestioned that his death was the result of his having been shot by defendant.
On such evidence, without making any recommendation regarding the punishment that should be inflicted upon the defendant, the jury returned its verdict of ‘ ‘ guilty of murder in the first degree”. It is from the ensuing judgment, as well as from an order by which defendant’s motion for a new trial was denied, also from an order by which was denied defendant’s motion that the judgment be modified by reducing the degree of the crime either to murder in the second degree, or to the crime of manslaughter, that the instant appeal has been taken.
Citing
People
v.
Howard,
By the terms of the several statutes to which reference hereinbefore lias been had, it is obvious that whenever it has been established that with malice aforethought a human being has been unlawfully deprived of his life, the crime of murder has been committed; and that the necessary element of malice "is manifested" when it appears that the killing was the result of "a deliberate intention unlawfully to take away the life of a fellow-creature". And in substance the pertinent provisions of section 1105, Penal Code, are to the effect that when the commission of a homicide has been established, "the burden of proving circumstances of mitigation, or that justify or excuse it", devolves upon the defendant. Or as is amplified in the case of
People
v.
Jones,
In each of the authorities to which reference herein-before has been had, it may be noted that the declaration by the court to the effect that in the circumstances therein assumed to exist, the crime would amount to second degree murder only, is dependent upon the fact that an unlawful *618 killing and “nothing further” has been shown. In the instant ease, much more than the isolated fact that Price was unlawfully killed by defendant was thoroughly established; and considering the law, together with the evidence that hereinbefore has been summarized, it would seem clear that the conclusion of express malice of defendant was fairly deducible.
As has been suggested by appellant, it may be conceded that if facts were presented by the prosecution which tended to show “circumstances of mitigation” (sec. 1105, Pen. Code), in order that defendant might have become entitled to benefit by them, he was not required to again place the same facts in evidence. However, the assumed facts, that a few minutes preceding the instant when defendant shot Price, the two men not only had “quarreled” one with the other, but also that shortly thereafter, with the apparent belief on the part of Price that with the use of a rifle defendant intended to commit some sort of a violent act upon the person of Price, the latter thereupon unlawfully had entered the home of defendant, had assaulted him, besides which had wrested the rifle from his possession, and subsequently had refused to return defendant’s property to him, were not necessarily either “circumstances of mitigation” or facts which would conclusively “justify or excuse” the commission of the offense. One of the provisions of section 192 of the Penal Code is to the effect that if “upon a sudden quarrel or heat of passion” a human being should be unlawfully killed, “without malice”, the offense thus committed will be manslaughter; otherwise, in the absence in the mind of the defendant of a deliberate and clear intent to take life, or that which has been termed as “pre-existing reflection” or “deliberate premeditation” to do so, the homicide that may be committed by him may be reduced to murder of the second degree. In other words, with respect to whether the crime was that of manslaughter only, the legal designation of the offense depends largely, if not entirely, upon the reasonable and justifiable state of mind that was present in the offender with reference to his act, either at the instant when it was committed, or so shortly before that time that reason shall not have had time “to resume its empire”; that is to say, that before the offense properly may be classed as manslaughter, it should appear that after the “heat of passion” was reasonably and justifiedly engendered, “hot blood had *619 not had time to cool” before the fatal act was committed. Likewise, in order that a conclusion that the offense constituted a murder of the second degree might be sustainable, it should appear with reasonable certainty that immediately preceding the execution of his fatal act the killer had not formed a deliberate intent to take the life of the person whom he thereafter killed, or that such act was not the result of “pre-existing reflection” or “deliberate premeditation”.
An examination of the instructions that were given by the trial judge to the jury discloses the fact that the so-called “stock instruction” that since the decision was rendered by this court in the case of
People
v.
Iams,
“Murder is defined to be the unlawful killing of a human being with malice aforethought. The word malice imports a wish to vex, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or by presumption of law. Malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.
“All murder which is perpetrated by means of poison, lying in wait, torture, or by any other kind of wilful, deliberate, and premeditated killing, is murder of the first degree, and all other kinds of murder are of the second degree.
“The difference between murder of the first degree and murder of the second degree is: That in murder of the first degree the killing must be deliberate and premeditated, while in murder of the second degree the killing is not deliberate and premeditated. In the one case there is a deliberate, premeditated, preconceived design, though it may have been formed in the mind immediately before the mortal wound was given to take life. In the other case there is no deliberate, premeditated, preconceived design to kill. In both, however, the killing must have been unlawful and accomplished with malice.
“There may be no appreciable space of time between the intention to kill and the act of killing—they may be as *620 instantaneous as successive thoughts of the mind. It is only-necessary that the act of killing be preceded by, and the result of a concurrence of will, deliberation, and premeditation on the part of the slayer; and if such is the case the killing is murder of the first degree, no matter how rapidly these acts of the mind succeed each other or how quickly they may be followed by the act of killing.
“Under the Information in this case the defendant may, if the evidence warrants it, be convicted of manslaughter, which is defined by our statute to be the unlawful killing of a human being without malice. It is of two kinds: first, voluntary, upon a sudden quarrel or heat of passion; and, second—involuntary, in the commission of an unlawful act which might produce death in an unlawful manner and without due caution and circumspection.
“To reduce a felonious homicide from the grade of murder to that of manslaughter upon the ground of sudden quarrel or heat of passion, the provocation must be of such a character as would be naturally calculated to excite and arouse the passions, and it must appear that the party acted upon the smart of sudden passion and resentment.
“If, however, the provocation was of a slight and trifling character, of such a nature as would not be calculated to arouse passion, or if sufficient time had elapsed between the provocation and the fatal shot for passion to subside and reason to resume its empire, the offense will not be mitigated, but the slayer will be guilty of murder . . .
“ ... In this case if you find the defendant killed the deceased, then the burden of proving circumstances of mitigation or that justifies or excuses the homicide devolves upon the defendant, unless the proof upon the part of the prosecution tends to show that the crime committed only amounts to manslaughter or that the defendant was justified or excusable. ...”
Although no question is raised by appellant either as to the correctness or to the adequacy of other instructions that were given to the jury, the record herein fails to disclose that as to each of the several issues that were involved in the action, the jury was not fairly instructed.
As hereinbefore has been indicated in the quotation from the case of
People
v.
Jones,
And so in the instant matter: For example, had the jury concluded that the effect of the “quarrel” which took place between defendant and Price, together with that which the jury believed was the truth with reference to the incident whereby it appeared that defendant’s rifle was wrested from his possession by Price, and the retention of the rifle by him after he was requested to return it to defendant, were of
*624
that gravity which, in the mind of an ordinarily reasonable person would have been sufficient to create therein such resentment or anger that it would amount to a “heat of passion” to the extent and duration that immediately and continuously thereafter up to the instant when the fatal act was committed by him, in effect he was mentally irresponsible,— the logical result would have been that “circumstances of mitigation” for the commission of the offense properly would have been the implied finding of fact by the jury. Likewise, with respect to the issue of whether the offense was that of murder in the second degree: It was the exclusive province of the jury to determine from the evidence whether the killing was the “wilful, deliberate and premeditated” act of defendant. In that connection, in the case of
People
v.
Mahatch,
*625 Considering the verdict that was returned by the jury, to wit, “guilty of murder in the first degree” (without recommendation), and particularly in view of the time that elapsed after the “quarrel” between Price and defendant had taken place, together with that which ensued after the incident that related to the seizure and the retention by Price of defendant’s rifle,—all of which preceded the instant when the first shot was fired by defendant at Price,—it becomes apparent that the jury was of the opinion and thereupon reached the conclusion not only that during the interval which succeeded those two episodes before the fatal shot was fired, had “hot blood had sufficient time to cool”, but also that following a time when presumably “reason had resumed its empire” the crime was committed “upon preexisting reflection” and was the “wilful, deliberate and premeditated” act of defendant.
In that regard, the jury was instructed that “There may be no appreciable space of time between the intention to hill and the act of hilling—they may be as instantaneous as successive thoughts of the mind. It is only necessary that the act of killing be preceded by, and the result of a concurrence of will, deliberation, and premeditation on the part of the slayer; and if such is the ease the killing is murder in the first degree, no matter how rapidly these acts of the mind succeed each other or how quickly they may be followed by the act of killing.”
Although with reference to the formation of “a
deliberate
intention unlawfully to take away the life of a fellow-creature”, (sec. 188, Pen. Code), it may seem somewhat questionable to judicially declare that no appreciable time is required for
“pre-existing reflection, deliberation and premeditation”,
but that to the contrary, such
“pre-existing reflection, deliberation
and
premeditation”
may be
“as instantaneous as successive thoughts of the mind”,
nevertheless, from “time immemorial”,' and especially since the time when it was so positively asserted in the lams case (
Notwithstanding the well-established rule of law as is announced in
People
v.
Mahatch,
In that respect, as far only as the abstract power of the court in proper situations is concerned, there can be no doubt regarding the correctness of the point that is suggested by appellant. However, from a consideration of the cases to which reference has been had, it is apparent that in first degree murder cases the authority conferred by the provisions of the statute should be exercised only where the evidence either clearly is insufficient to show anything other than that the defendant therein unlawfully killed a “human being [presumptively] with malice aforethought”, that is wilfully, deliberately and premeditatively,—or, possibly, that with respect to whether such a condition in the mind of the defendant existed, as was indirectly suggested in the latter case, when this court entertains “a doubt as to its (the evidence) showing murder of the first degree”.
As hereinbefore has been indicated, this court is of the opinion that the evidence is legally sufficient to support the verdict generally that was returned by the jury. With respect to the second proposition, assuming, without here affirming the suggestion that the existence of a doubt in the “mind” of the reviewing tribunal with reference to the insufficiency of the evidence to justify the verdict as to the *627 degree of the crime may constitute a valid reason for an order by which the degree of the crime as "expressed in the verdict may be reduced, nevertheless it should be made clear that the “doubt”, if any, like that universally required of the jury on the trial of a criminal action, should be not merely fanciful or imaginary, but should be reasonable, real and substantial. It is a commonly recognized fact that a very great difference may exist between two individuals with respect to their respective temperamental characteristics; that is to say, that that which to one individual may be provocative even to the degree of “a heat of passion”, to another may be only a cause for merriment. And so with the defendant in the instant action: although he may have been greatly exercised and incensed at the treatment or the assumed wrongs which theretofore he had received at the hands of Price, nevertheless the question as to whether such behavior was of that gravity and importance that, as applied to a reasonable man, situated as was the defendant, it reasonably might be anticipated that it would create or produce in his mind a “heat of passion” sufficient in intensity to connote the existence of the ultimate fact or condition of “circumstances of mitigation”, at least primarily, and in the first instance, was for the jury to determine. With that principle noted, although it well may be that one reasonable mind might differ from another with respect to whether the evidence in the instant case presented such a situation that therefrom should follow a conclusion either that the act of defendant was committed by him in the absence of deliberation and premeditation with reference thereto, or, that if said act was intentionally committed by defendant, it was done in the “heat of passion”— nevertheless, the question of whether this court has a reasonable “doubt” on the issue of the legal sufficiency of the evidence to warrant the verdict of the jury, must be answered in the negative.
No other issues are presented by appellant’s brief. It follows that the judgment, and each of the orders from which defendant has appealed, should be and they are affirmed.
Seawell, J., Curtis, J., Edmonds, J., Langdon, J., Shenk, J., and Waste, C. J., concurred.