| Nev. | Jul 1, 1868
By the Court,
Among the instructions given to the' jury in this case, at the request of the prosecution, we find the following: “ A man is presumed to intend the natural and probable consequences of his own acts ; so the intent to murder is conclusively inferred from the use of a deadly weapon.” Murder is a word of technical signification, meaning not only the killing of a human being, but the perpetration of it in a particular way; that is, with malice aforethought.
If, therefore, the intent to murder be conclusively established or inferred from the use of a deadly weapon by the person killing, proof by the prosecution that the prisoner took the life of his victim with such weapon would, under almost any state of case, authorize a conviction of murder, and preclude all evidence on the part of the defendant to reduce the crime to manslaughter or to show a justification; for if the killing be committed with malice prepense, no provocation can reduce the crime to manslaughter. Hence, in all cases of killing with a deadly weapon, the prisoner would certainly be precluded from availing himself of any circumstances tending to reduce the crime, or even to show himself justified in the killing.
The law, it is true, very_ properly presumes that all rational beings intend the natural and probable consequences of their acts.
In cases of homicide per infortuniam, occasioned by a deadly weapon, if the inference of an intent to kill be conclusive, the defendant would not be allowed to overcome such inference by proof that the killing was accidental. For example : If a man, in hunting, accidentally kill a person concealed, this is by the law deemed excusable homicide; but if the law be correctly stated in this instruction, the defendant in such case would not be allowed to show the killing to have been accidental.
Happily, however, the law, which is the embodiment of reason, is not marred by any rule so shocking to every sense of justice and propriety. In our judgment, the mere use of a deadly weapon does not in any case make the inference of an intent to kill conclusive. The instruction, therefore, misstates the law, and the giving of it was, under the circumstances of this case, calculated to mislead the jury to the prejudice of the defendant.
The prisoner, who, by the law of this State, is allowed to testify for himself, swore on the trial that he had no intention whatever of taking the life of the deceased, and did not know until after the struggle had ceased that the deceased was seriously wounded. If the jury believed this testimony and were permitted to act on it, the conviction would certainly not have been for murder in the first degree. For the intent to take life is an essential element in the constitution of murder in that degree, except when it is committed in the perpetration or attempt to perpetrate arson, rape, robbery, or burglary. As, however, the jury were instructed that the use of a deadly weapon made the inference of an intent to kill conclusive, the defendant’s testimony could not be considered by them.
Judgment reversed.