¶1delivered the opinion of the Court.
¶2JUST after dark, on the evening of November 30th, 1915, about the hour of eight, William H. Dickens, of Longmont, Colorado, was shot to death while sitting with his wife in a room of his home in that city. The fatal shot was fired from the alley way near the house, and the bullet penetrated the window pane in front of which Mr. Dickens sat, before reaching its objective. The defendant, Rienzi C. Dickens, a son of the dead man, was indicted for the killing, charged with the crime of murder.
¶3The evidence, without cavil or dispute, shows that, the killing was accomplished by lying in wait, that it was done maliciously, premeditatedly and deliberately, in cold blood, an assassination pure and simple. There was not a scin*410tilla of evidence to show that the killing was done in any .other manner than as alcove stated. The defendant entered a plea of not guilty, and the issue was whether Rienzi was guilty of murder of the first degree, or not guilty, and under the proofs that was the only possible issue.
¶4Upon this undisputed state of facts, over the protest, objection and exception of the defendant, the court instructed the jury that it might return a verdict of either first degree murder, or one of second degree murder, both of which degrees were correctly defined, or a verdict of not guilty. The defendant requested an instruction to the effect that the evidence showed that in the killing first degree murder was committed, and that their verdict should be either guilty of that degree or not guilty. This instruction the court refused, to which ruling the defendant reserved an exception. Error is assigned on both propositions.
¶5The judgment must be reversed for the error of the court in giving the instruction which permitted a verdict of second degree murder, and in declining to give the instruction tendered to the effect that, under the evidence, only one of two verdicts was competent, either one of first degree murder, or one of not guilty. There are numerous other assignments of error, but the court is of opinion that the case should be determined upon the ones above suggested.
¶6The action- of the court in reference to these instructions is in conflict with the holding of this court in Ehrhardt v. People, where Mr. Justice Campbell, in the opinion therein, said:
“The evidence as abstracted does not call for an instruction as to murder of the second degree. Why the jury so found we do not know, and speculation about it is useless. Counsel has made no argument that defendant was prejudiced by this action, but we observe that it is inexplicable.
“If defendant administered poison to his wife and she died from its effects, he was guilty of murder of the first, not of the second, degree. If he did not so kill her, he *411should have been acquitted.” Ehrhardt v. People, 51 Colo. 205, 206, 117 Pac. 164.
¶7Also such action is in conflict with what was declared by this court in King v. People, as follows:
“The statute makes a homicide committed in the perpetration or attempted perpetration of robbery (or lying in wait) murder in the-first degree, and the substantial effect of the instruction was to impose the duty upon the jury to ascertain whether the robbery had been committed or attempted, and if so, whether the homicide had been committed in the perpetration thereof. If both were found in the affirmative beyond a reasonáble doubt, the statute fixes the homicide as murder of the first degree, and under such circumstances that degree is the only grade of the offense of murder the evidence will support. … Under such circumstances there is but one grade of the offense, that is, murder in the first degree.” King v. People, 54 Colo. 122, 126, 129 Pac. 235.
¶8In this connection the following additional cases from this court are directly in point, and demonstrate beyond controversy that prejudicial error was committed in this connection: Smith v. People, 1 Colo. 121; Reagan v. People, 49 Colo. 316, 112 Pac. 785; Carpenter v. People, 31 Colo. 291, 72 Pac. 1072; Mow v. People, 31 Colo. 361, 72 Pac. 1069.
¶9In Smith v. People, supra, at page 146, this was declared by the court:
“If, in a case of felonious homicide, the evidence shows the killing to have been deliberate and intentional, there is no question of manslaughter presented, and therefore no reason for submitting that question to the jury. To require the jury in such a case to pass upon the question of manslaughter would be as unreasonable and absurd as to instruct them respecting the crime of larceny.”
¶10Also in the case of Reagan v. People, supra, at page 326, this court said:
“The defendant was on trial for a murder committed in perpetrating a robbery. Taking human life in such cir*412cumstances was murder of the first degree, so that defendant was either guilty of that degree of homicide, or not guilty at all. It is not error to refuse instructions which are not applicable to any facts or testimony in the case.”
¶11In Mow v. People, supra, at page 361, this court was considering the question of the failure of the court in a homicide case to instruct upon the degree of manslaughter, in which case no instructions on that subject had been requested, and this was said:
“Mere non-direction is not reversible error unless a specific instruction, good in point of law, covering the omission, was requested and refused.”
¶12So here the mere failure to give such an instruction limiting the verdict of guilty of first degree murder or acquittal might, in the absence of a request therefor, not have been reversible error, but as the defendant asked such an instruction and the court refused to give it, under the foregoing authority such refusal was obviously reversible error. Defendant had a right to have given to the jury the rules of law applicable to the evidence, and none other. That right was denied him when an instruction was given to which no evidence was applicable, and when the only instruction in this connection applicable to the evidence was refused.
¶13Under an improper, erroneous and misleading instruc- ' tion, to which objection was made and a- proper instruction tendered on the precise point, which the court declined to give, the jury was afforded an opportunity, through compromise and trade, to reach a verdict which had no proof whatsoever to support it. Such a verdict can not properly, and ought not to, stand. Here appears the strange anomaly of a man convicted of, and sentenced for, an .offense which tbe evidence totally fails to show was ever committed by him, or by any one else, or at all.
¶14It is uniformly held that instructions should not be given concerning questions not supported by the evidence. Such instructions are regarded as necessarily misleading and *413prejudicial. Coors v. Brock, 44 Colo. 80, 96 Pac. 963; Fisk v. Light Co., 3 Colo. App. 319, 33 Pac. 70.
¶15In Fisk v. Light Co., supra,the court, at page 324, said:
“The instructions should in all cases be based upon the evidence, and an instruction, no matter how correct the principle which it may announce, that impliedly assumes the existence of evidence which was not given, is erroneous. It is calculated to bewilder and mislead the jury by producing the impression that in the mind of the court, some state of facts, as the instruction supposes, may be inferred from the evidence given, or concealed within it. The authorities upon this proposition are numerous and uniform. Breeze v. State, 12 Ohio N. S. 146, 80 Am. Dec. 340; Ely v. Tallman, 14 Wis. 28; Hill v. Canfield, 56 Pa. St. 454; Atkins v. Nicholson, 31 Mo. 488; Bensley v. Brockway, 27 Ill. App. 410.”
¶16In view of the conclusive character of the evidence in this case as to the degree of the offense committed, the charge of the court permitting the jury to find second degree murder could not have failed to mislead and confuse them, and by all of the authorities was, under such circumstances, prejudicial and reversible error. State v. Vance, 80 Ala. 1. Such instruction not only necessarily had the effect to mislead, confuse and distract the attention of the jury from the real issue, but it further gave it to understand that the judge was of opinion that such a verdict found support in the testimony, when in truth and in fact there is a total lack of testimony as a basis for the verdict returned. In this connection it is worthy of note that an instruction, although ostensibly for the benefit of the defendant, which may mislead the jury is ground for reversal. Patterson v. State, 60 S. W. (Texas) 557.
¶17As bearing on the duty of the court to confine its instructions to matters supported by the proofs, we cite and quote from the following authorities: “When, on the evidence, the accused is clearly guilty of murder of the first degree, or not guilty, it is not only the right, but the duty of the court to so instruct the jury.” Fertig v. State, 100 *414Wis. 301, 75 N. W. 960. In State v. Froelick, 70 Iowa 213, 30 N. W. 487, it is held that an instruction as tp a degree of crime less than that shown by the evidence is improper. In State v. Mahly, 68 Mo. 315, the court held that an instruction as to second degree murder where the evidence showed a crime of first degree murder was error. The evidence showed a crime of peculiar atrocity, the deliberate killing by the accused of his stepchild. The court said: “Courts should not humor or encourage the sentimentalism of juries who shrink from finding an accused guilty of the highest crime of which the evidence proves him guilty, by giving instructions authorizing them to find him guilty of a lower grade, of which there is no proof of his guilt. If they have a reasonable doubt of his guilt of the only crime which the evidence tends to prove, they should acquit and not compromise with that doubt by finding him guilty of a lower grade of offense. Instructions in regard to the lower grade, not warranted by the evidence, operate as persuasives to juries to convict of one of those grades when they should convict the accused of the highest, or acquit him altogether. The court erred in giving the instruction defining murder in the second degree, because there was no evidence to support it.” In State v. Stoeckli, 71 Mo. 551, the court reversed a judgment in a murder case, as it said: “Because the Superior Court erred in instructing the jury as to murder in the second degree, when under the facts shown by the evidence, if defendant committed the homicide at all, he was guilty of murder in the first degree and of no other grade of homicide.”
¶18It is to be observed that in the above cases there was no request for an instruction such as was made in this case, but the judgment was reversed because of the instruction as to second degree murder. Of course in view of the requested instruction here a much stronger case of error is presented than in the cases cited.
¶19As indicating how utterly misled and bewildered by this instruction the jury must have been, we need only to point out that, although there was not an iota of testimony to *415establish any crime except that of first degree murder, yet it found that the defendant maliciously killed his own father, and still returned a verdict of murder of the second degree only, and further recommended him to the leniency of the court.
¶20It is vigorously contended that, in as much as the second degree murder instruction, although erroneous, was favorable to the defendant, in that it gave opportunity to the jury to reduce the degree of the offense, the error was not prejudicial. In considering this contention it should constantly be borne in mind that our court has definitely determined that error is presumed to be prejudicial unless it affirmatively appears from the record that it is not so. Dekelt v. People, 44 Colo. 531. Therefore the failure to give the requested instruction to the jury that their verdict must be one of guilty of* first degree murder or not guilty was prejudicial, unless the contrary is made affirmatively to appear. It is impossible for human intelligence to divine what, if this correct instruction had been given, the verdict of the jury would have been. There is nothing in the record to show that the jury would have convicted the defendant of first degree murder, and in the absence of such showing it is conclusive that the error in refusing to give the instruction, and in affirmatively instructing that the jury might find a verdict of second degree murder, was préjudicial and constituted reversible error under the settled law of this jurisdiction. Indeed, if the record indicates anything on this point, it manifestly is that, in no event, would the jury have returned a verdict of first degree murder, because, as heretofore pointed out, on evidence supporting only that degree it returned one of second degree, and further recommended the defendant to the leniency of the court. This situation makes it still plainer that the supposed favorable instruction was not in fact such.
¶21We are aware of no legal principle, or of any rule of law or practice recognized in the jurisprudence of this or any other time which gives a trial judge the power and author*416ity to invade the ¡rights of a defendant on trial for his life and liberty, and to, arbitrarily, in the face of a request for a correct pronouncement of the law, refuse and decline to give such, and, as was done in this case, incorrectly instruct the j ary, on the theory that such instruction is more favorable to the defendant than the true and correct rule as requested by him would be.
¶22Judgment reversed and cause remanded for a new trial.
¶23Decision en bcmc.
¶24Mr. Chief Justice Garrigues, Mr. Justice Burke and Mr. Justice Scott dissent.
¶25dissenting:
¶26While this court has determined that the refusal of the trial court to give instructions defining lesser crimes than charged in the information, but included in the crime charged, is not error, where the testimony does not require it; yet, as I construe our decisions, in no case has it been judicially determined that the giving of an instruction defining a lessor crime, when the testimony does not require it, does or does not constitute error, nor do I find a case in our courts where an objection to such an instruction has been considered or determined.
¶27Clearly in this case the giving of the instruction complained of was not required, and a failure or refusal of the court to give it would not constitute error. But this is a different question from that of whether or not the giving of such an instruction in a case where the facts do not require it, and over the objection of defendant, constitutes error, prejudicial to the defendant.
¶28I am not unaware of the language of Mr. Justice Campbell in the case of Ehrhardt v. People, 51 Colo. 205, 117 Pac. 164, wherein it was said:
“If defendant administered poison to his wife and she died from its effects, he was guilty of murder of the first, not the second, degree. If he did not so kill her, he should have been acquitted.”
¶29But this language is admittedly obiter. The question was not there determined, nor was it necessary to deter*417mine it, and it was specifically stated in the opinion that the judgment must be reversed for other reasons.
¶30And in the later case of King v. People, 54 Colo. 122, 129 Pac. 235, Mr. Justice White seems to have announced a contrary view, wherein it was said:
“If the case had been submitted 'solely upon the theory that the murder was committed in the perpetration . or attempted perpetration of robbery, or if the evidence had been embodied in a bill of exceptions and made a part of the record, and we could clearly discover therefrom that the homicide had been so' committed, it might be held that the instruction was without prejudice. Wickham v. People, 41 Colo. 345, 93 Pac. 478.”
¶31But it will be seen that this language was used as applicable to a supposed case in illustration, and not to the case under consideration. In each of these cases the expressions were not necessary, in that the question was not -involved, and precisely opposite views are expressed. Hence we must look 'elsewhere for whatever authority we may find bearing upon the subject.
¶32The rule covering the whole subject is announced in 16 Corpus Juris 1024 to be:
“Where there is no evidence tending to prove the commission of the lower offense, that is, where the evidence shows -that accused is either guilty of the higher offense or not guilty of any, an instruction on the lower offense is not necessary and is properly refused, although giving an instruction in such a case on the lower degree may not be an error of which defendant can complain.”
¶33This doctrine seems to be based on the case of Hopt v. People of the Territory of Utah, 110 U. S. 574, 28 L. Ed. 262, 4 Sup. Ct. 202. Mr. Justice Harla’n, speaking for the court, said:
“The next assignment of error relates to that portion of the charge which represents the court as saying: ‘That an atrocious and dastardly murder has been committed by some person is apparent, but in your deliberations you should be careful not to be influenced by any feeling.’
*418“By the statutes of Utah, ‘murder perpetrated by poison, lying in wait, or any other kind of wilful, deliberate, malicious or premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, rape, burglary, or robbery; or perpetrated from a premeditated design, unlawfully and maliciously, to effect the death of any other human being other than him who is killed; or perpetrated by any act greatly dangerous to the lives of others, and evidencing* a depraved ,mind, regardless of human life, is murder in the first degree; and any other homicide, committed under such circumstances as would have constituted murder at common law, is murder in the second degree.’ Compiled Laws Utah, 1873, p. 585. The punishment of murder in the first degree is death, or, upon the recommendation of the jury, imprisonment at hard labor in the penitentiary at the discretion of the court; while the punishment for murder in the second degree is imprisonment at hard labor in the penitentiary for not less than five nor more than fifteen years. Ib. 586.
“In view of these statutory provisions, to which the attention of the jury was called, it is clear that the observation by the court that ‘an atrocious and dastardly murder had been committed by some person,’ was, naturally, regarded by them as an instruction that the offense, by whomsoever committed, was murder in the first degree; whereas, it was for the jury, having been informed as to what was murder, by the laws of Utah, to say whether the facts made a case vof murder in the first degree or murder in the second degree.
“It was competent for the judge, under the statutes of Utah, to state to the jury ‘all matters of law necessary for their information,’ and, consequently, to inform them what those statutes defined as murder in the first degree and murder in the second degree. Laws of Utah, 1878, p. 120; Code of Crim. Pro., § 283-4. But it is expressly declared by the Code of Criminal Procedure that, while he may ‘state the testimony and declare the law,’ he ‘must not. charge the jury in respect to matters of fact.’ ”
¶34*419It will be seen that the statute of Utah, there considered, contained like provisions as the Colorado statute, that “murder perpetrated by poison, lying in wait,” etc., is murder in the first degree.
¶35Under the doctrine of this decision it would have been clearly error for the court to have given the instruction here contended for. While it is the province of the court to state all matters of law necessary for their information and to so inform them what the statutes defines as murder to the extent involved, yet the court under no circumstances may charge the jury in respect to matters of fact. The degree of crime is a fact to be determined from the circumstances of the case in the light of the law, and the power to determine such degree is the exclusive prerogative of the jury, which the court may not invade.
¶36If it was error for the court to instruct, as in the Hopi case, that whoever was guilty of the particular crime was guilty of murder in the first degree, then it would certainly have been error for the court to have instructed that the specific defendant in this case is guilty of murder in the first degree, or that he is guiltless of any crime, as an alternative.
¶37I am unable to find that the great court from which that decision emanated has ever altered its view in this respect, nor have I been able to find a contrary view expressed by a court of last resort.
¶38In the case of State v. Bell, 136 Mo. 120, 37 S. W. 823, cited by Corpus Juris, to support the text, and wherein the facts were such as to constitute murder in the first degree only, the court said: . -
“It remains only to consider the propriety of giving an instruction for murder in the second degree. The defendant having been convicted of murder in the second degree can not complain that he was not convicted of murder in the first degree, but if there was no evidence upon which to base an instruction for murder in the second degree the court should not have invited the jury to relieve the defendant of the penalty which the law prescribed for his crime.”
“As already said, the error is one of which the defendant can not complain. The judgment is affirmed.”
¶40It will be seen that that case involved the precise question considered here. There 'was no testimony that justified the instruction for second degree murder, just as there is none in this case. The court instructed as to murder in the second degree. It was held not to be prejudicial error.
¶41The decision in the Hoptcase was followed in the case of People v. Thiede, 11 Utah 241, 39 Pac. 837. The following is found in the syllabi of that case:
“It was the duty of the court to define murder and its degrees, but not to hold as matter of law that the defendant was either guilty of murder in the first degree or innocent. It was the exclusive province of the jury to determine whether premeditation or deliberation existed.”
¶42Just as in this caá'e, it was the exclusive province of the jury to determine whether or not the murder was committed by lying in wait, by poison, or in any other manner which the statute denominates murder in the first degree.
¶43It was s.aid further on in the Thiede. case:
“The case of People v. Hopt, supra,presented such facts as to irresistibly lead one to the conclusion that, if the defendant committed the crime, he was guilty of murder in the first degree; yet the Supreme Court of the United States (Hopt v. Utah, 110 U. S. 582, 4 Sup. Ct. 202); speaking of the case, say: ‘It was for the jury, having been informed as to what was murder, … to say whether the facts made a case of murder in the first degree or murder in the second degree. It was competent for the judge to * … inform the jury what the statutes defined as murder in the first degree and murder in the second degree.’ ”
¶44A homicide committed in the perpetration of one of the crimes .enumerated in the statute, in this case by lying in wait, is not a distinct offense, but is but one of the methods of committing murder in the first degree. State v. Bobbitt, 215 Mo. 10, 114 S. W. 511.
¶45*421In that case it was said by the court:
“In State v. Todd, 194 Mo. 1. c. 394, 395, 92 S. W. 678, it has been ruled by this court that, even if the testimony did not warrant an instruction for murder in the second degree, ‘the defendant is in no position to complain, for, if the court erred in instructing for a less degree of murder than that wibh which the defendant is charged, it was error in the defendant’s favor, of which he has no cause to complain. See also State v. McMullin, 170 Mo. loc, cit. 630, 71 S. W. 221; State v. Frazier, 137 Mo. l. c. 340, 38 S. W. 913; State v. Scott, 172 Mo. 536, 72 S. W. 897; Johnson v. State, 44 Tex. Cr. R. 332, 71 S. W. 25; State v. Billings, 140 Mo. 193, 41 S. W. 778.”
¶46In Johnson v. State, supra, it was ruled:
“The court also charged on murder committed in the perpetration of robbery, and instructed the jury that murder committed under such circumstances was murder in the first degree. This is made so by the statute, and under the proof the court was authorized to give this instruction. The court gave a charge on murder in the second degree, on implied malice. Under the evidence we think the court could have well refused an instruction of this character; certainly it was one of which appellant could not complain. The statute makes all murder, whether upon express or implied malice, when committed'in the perpetration of robbery, murder in the first degree. However, the court saw fit to give defendant the benefit of a charge of murder in the second degree. This was to his advantage, and in our opinion he can not complain of this.”
¶47■ I must therefore hold that the court did not commit error prejudicial to the defendant in giving the instruction defining murder in the second degree, nor in refusing to instruct that the defendant must be held to murder in the first degree or be declared innocent.