| Or. | Jan 15, 1879
By the Court,
This appeal is based upon exceptions taken at the trial to the charge of the court. All the material parts of the Charge appear to be set out in full in the bill of exceptions; and having examined it carefully, we find no serious objections to any portion thereof, except the last instruction, which is in these words: “There is no evidence in this case which reduces the crime from murder in the first degree to murder in the second degree or to manslaughter. The defendant, if he is guilty at all, is guilty of murder in the first degree.”
This instruction, we think, is erroneous and should not have been given. The appellant is charged in the indictment with murder.in the first degree, and under the indictment might have been convicted of murder in the first degree, murder in the second degree, or manslaughter. Section 160 of the criminal code provides that, “ where it appears that the defendant has committed a crime, and there is reasonable ground of doubt in which of two or more degrees he is guilty, he can be convicted of the lowest of those degrees only.” It was the province of the jury to determine the degree of the guilt as well as the guilt itself of the appellant, and this instruction withdrew that question, from their consideration. While the court may state to the jury what the evidence tends to prove, it is their peculiar province to determine upon the weight and
The facts reported in the bill of exceptions are very meager; they are, that the deceased was found dead in a ravine, near his cabin, with one large hole and twenty-two small ones in his back; that they were gunshot wounds and were the cause of his death. These facts are insufficient to raise a conclusive presumption of murder in the first degree.
To constitute murder in the first degree it is not enough to show that the deceased was killed by some one; but it must be shown that he was killed purposely, and of deliberate and premeditated malice. In this case the malice might be inferred from the use of a deadly weapon if there was anything to show that it was done purposely and with deliberation.
For aught that it appears the deceased may have been killed by some one purely accidentally and without any purpose whatever to injure him or any one else, in which case it would have been murder in either degree. Or it may have been done by some one while engaged in the shooting of wild game, but without “due caution and circumspection,” in which case it might have been involuntary manslaughter. In this case we think the court erred in not leaving the degree of guilt to the determination óf the jury as well as the guilt itself. The judgment of the court below is reversed and the cause remanded for a new trial.