¶1 (specially concurring).
¶2 With all respect due to my learned brethren, I find myself unable to concur in the ruling that the court erred in not submitting instructions on murder in the second degree. When it became the duty of the trial court to make the momentous decision as to whether instructions on murder in the second degree ■would result in the discharge of the defendr ant (see State v. Reed et al., 39 N. M. 44, 39 P.(2d) 1005), there had been presented but one theory — threat followed by assassination —and the threat had neither been explained nor denied.
¶3 “Where the existence of deliberate malice in the slayer is once ascertained, its continuance down to the perpetration of the meditated act must be presumed, unless there is evidence to repel this presumption.” 29 C. J. 1102.
¶4 The majority of the court, apparently, base their decision upon a doubt of the seriousness of the threat, founded upon the facts that the assassin laughed and failed to repeat the threat when the subject was later mentioned. The evidence of the seriousness of the threat furnished by the corpse of the assassin’s victim' cannot be brought in question by such fancies. Assassins do not ordinarily publish their plans or intentions. “He meditates revenge who least ’complains.”
¶5 I concur, however, in the result, mainly because the court instructed the jury that they might recommend clemency, when the only sentence the court could pronounce under the instructions given was death. Evidently inadvertently given, and probably invited error, yet this instruction does such violence to the trust and confidence which the jury has a right to repose in the court, that I feel that the verdict of murder in the first degree, which was accompanied by a recommendation of clemency, should not be permitted to stand.