¶1On the re-hearing of this case, our attention was specially directed to certain of the instructions not before particularly complained of, and to which no exception was taken in the court below. This being a capital case, however, the want of an exception does not necessarily deprive the prisoner of his right to a new trial for errors of the court prejudicial to him. Thompson v. The People, 4 Neb., 524.
¶2Under the evidence before the jury the only really difficult question for them to settle was that of the degree of the prisoner’s guilt, whether it was murder in the first or second degree, or manslaughter. In respect to this, however, it was of vital importance not to lose sight of this statutory distinction, in giving them the law by which they were to be guided in making up their verdict.
¶3By the 5th instruction the jury were informed that: “It is not necessary in law that the deliberate and premeditated malice should have existed a long time before the killing.” So far this was right. But it was immediately followed by this statement of what would answer the requirement of the law in these particulars, viz.: “But it is sufficient in law that the deliberate intention, unlawfully to kill, is shown to exist at the instant of firing the fatal shot.”
¶4This last clause is open to the objection that it com*303pletely ignores “premeditation” as an independent element in murder in the first degree; and left the jury to understand that proof-of “deliberate intention unlawfully to kill,” and this alone^ was sufficient evidence of “premeditated malice,” and would warrant a conviction for the highest degree of homicide. And this view of the law is re-enforced by the next two Instructions, in one of which the jury is told that: “ The law presumes deliberate and premeditated malice from the deliberate, unlawful,- and unnecessary use of a deadly weapon in such a' manner as naturally tends to destroy human life.” And in the other that in case the jury should “find beyond a reasonable doubt the defendant shot and killed Florence Booth, as charged in the indictment, the presumption'of law is that he was actuated by deliberate and premeditated malice, and it devolves upon the defendant to remove that presumption.”
¶5This latter charge, indeed, dispenses with all affirmative evidence both of deliberation and premeditation, and makes the mere fact of killing by means of shooting all that is requisite to establish murder in the first degree. But such is not the law. The rule established by this court in the case of Preuit v. The People, 5 Neb. 377, is, that whejre the fact of killing is established, without any explanatory circumstances, malice is presumed, and the crime is murder in the second degree. Milton v. The State, 6 Neb., 136. In the case last cited, in which the act of killing by means of a club was undisputed, the judgment was reversed and a new trial ordered on the sole ground of a want of evidence showing a previously formed design on the part of the prisoner to kill the deceased, or, in the language of the statute, “premeditation.”
¶6In failing to recognize in these instructions the distinction made by our statute between the two degrees *304of murder, we are of opinion error was committed prejudicial to the prisoner, for which he should have a new trial. And it is so ordered.
¶7Reversed and remanded.