This is an appeal from a judgment of the .third district court, sitting in the county of Doña Ana.
The defendant was indicted in Grant county, at the July terra in 1877, for the murder of Patrick Rafferty.
Thereafter, on application of the defendant, the venue was changed to the county of Doña Ana.
The c&se came on for trial at the June term in 1878, in said court.
At this trial, after the charge of the judge, the defendant’s counsel took exceptions to certain parts thereof relative to the testimony of defendant.
*122The jury brought in a verdict of “ guilty as charged in the indictment,” and thereupon the defendant moved for a new trial.
The motion was denied, and the defendant appealed to this court.
The first point relied on by the defendant in his brief is that “ the jurors who sat in the trial were all Mexicans and none of them understood the English language in which the proceedings at the trial were had.”
It appears by the bill of exceptions that this is true, and that the instructions to the jury were written in English and orally interpreted to them in Spanish;’ and that all the proceedings were similarly interpreted, the translation being made in all cases by an interpreter previously duly sworn.
The defendant claims that this was error for two reasons:
Firstly. That trial by.a jury not understanding English was not “ trial by jury,” as understood at common law, or contemplated by the bill of rights.
Secondly. That the instructions to the jury were really given orally, being translated, and were thus in violation of law.
As to the first of these propositions it may be said that the qualifications of jurors in New Mexico were fixed by the act of February 2, 1859 (Compiled Laws, 496), and at the time of this trial had been unaltered for nearly twenty years. That act, in section 157, specifically provided that “all white persons,” having certain qualifications of age, citizenship, etc., shall “be liable to be chosen and serve as-grand and petit jurors;” and among these qualifications the ability to speak any particular language is not named.
Under this law juries were selected for over twenty years, embracing both Spanish and English speaking members, without any objection or any change being made in the law, or action taken by the congress of the United States. Since the trial of this cause below, in the year 1880, a new jury *123law was enacted by the legislature, but it made no alteration in this respect, though the fact that large numbers of Spanish speaking citizens, who understood no English, were annually called to serve on juries, it was known undoubtedly to every member, so that there can be no doubt as to the legislative intent.
We cannot shut our eyes to the peculiar circumstances of this territory, taken from the Republic of Mexico in 1846, and nearly all of whose inhabitants in the years first succeeding the annexation, understood no English. Even at the present time the preponderance of Spanish speaking citizens is very large; and in certain counties the English speaking citizens possessing the qualifications of jurors, can be counted by tens instead of hundreds. In at least three of the courts of the territory at the time of this trial below, it may be said without hesitation, that a sufficient number of English speaking jurors could not have been obtained to try any important case which had attracted public attention.
Apart from the impracticability of obtaining English speaking juries, it would have been manifestly unjust to the great majority of the people of the territory, had such a requirement as to language been made. Either they would have had to be tried in a language which they did not understand, or else a double system would necessarily have been established, including an English speaking jury for English defendants, and a Spanish speaking jury for Spanish defendants ; and if the theory had been carried to its logical conclusion, an English speaking judge to address the English jury, and a' Spanish speaking one to instruct the Spanish jury.
The practice under the territorial law has been uniform for a long series of years, and works as little injustice to any parties, whatever their language, as any system that could well be devised under the prevailing conditions. In all counties where the jury contains members representing each *124language, or where persons speaking each are before the court, all the proceedings are translated by a sworn, interpreter, who is a court officer, into the other language from that in which they originally take place. Thus, every one interested'is as fully as possible informed of every proceeding, and no injustice is done.
In the case before us, this course was pursued. There is no allegation or suggestion that there was any incorrect interpretation; indeed, there is nothing in the record or the bill of exceptions, to show whether the defendant himself speaks Spanish or English. If, as we infer from the argument, he is an English speaking citizen, then it was by his own act in demanding a change of venue, that the case was brought from a county where the English element largely predominated on the juries, to one where the Spanish population is very greatly in the majority.
We do not think that there is anything in the law which makes the fact of not understanding the English language a disqualification for a juror in this territory, or which gives to any defendant the right to be tried by jurors of any particular nationality or language.
As to the second point, regarding the written instructions to the jury, the argument of defendant’s counsel is that the instructions being written in English, and translated to the jury in Spanish, they were really orally given; and, further, that the intent of the law was that the jury might see them while deliberating, and if only given to them orally that intent was defeated.
If the object of the law were as suggested by counsel, there might be something in this point; but that object, as shown by the context, was entirely different, being that the instructions should be filed with the papers in the case, so as to be available for exception or on appeal. In fact, at the time of the trial below, and until the passage of the Practice Act of 18S0, there was no authority for allowing the jury to *125take the judge’s instructions with them when they retired for consultation.
The law was fully complied with by the instructions being written by the judge, so as to be preserved on file; and there was no error in this respect.
The next cause for reversal assigned by the defendant, is that the court erred in stating in the charge to the jury that the killing in question was either murder in the first degree, murder in the fourth degree, or justifiable homicide. •
The law with regard to this we have recently stated quite at length, in the opinion rendered in the case of The Territory v. Young, ante, p. 93, and so we do not repeat it here.
As there said, if there is any evidence whatever which could bring the case within the definition of any degree not given, the limitation of the degrees in the charge to the jury would be error which would be good cause for reversal. But we have examined the evidence before us in this case with much care, and fail to see any under which the degree of murder could be other • than the first or the fourth, if a crime be proved at all. The definitions given by the judge of those degrees, and of the circumstances under which such a killing would be justifiable, substantially coincide with the statute, and could not have misled the jury. One of the “ additional points ” of the defendant is that the instruction regarding justifiable homicide should have included both causes named in the statute; but we think the words’ used are broad enough to cover all the circumstances possible under the, evidence.
The next point raised, and upon which a large amount of argument was expended, was as to the form of the verdict; which is claimed to be insufficient and contrary to law, both because it does not designate the precise offense of which the jury found the defendant guilty, and also because the jury did not assess the punishment therein.
The record shows that the indictment is in the usual form *126of an indictment for murder in the first degree, including all the allegations required by the statute to constitute that crime.
It is conceded on all hands that under such an indictment, a jury can either find the defendant guilty of the crime charged, or of any lower crime the necessary constituents of which are included in the indictment. This is a general and elementary principle of criminal law.
The judge in his charge instructed the jury that under the evidence, three, and only three, verdicts could properly' be returned, and these were respectively in case the jury should believe the defendant guilty of murder in the first degree, or in the fourth degree, or that the homicide was justifiable. He instructed them that if they found the defendant guilty of murder in the first degree, their verdict should be simply “ guiltyif in the fourth degree, their verdict should be that they “ find him guilty of murder in the fourth degree, naming the degree in the verdict,” and assessing the punishment within the statutory limits. If they entertained any doubt of his guilt in one of the degrees, then their verdict should be “ not guilty.” This made the distinction very clear and forcible, and if under such instructions, the jury should simply have returned a verdict of “ guilty, ” there could have been no doubt of their intention to find the defendant “ guilty ” in the first degree.
The verdict which they did bring in was “ guilty as charged in the indictment.” This, in our opinion, is stronger and more certain even than the verdict of “ guilty ” would have been. The indictment charged murder in the first degree. It charged the defendant with the felonious killing of Rafferty, from a premeditated design to effect the death of said Rafferty.
If there could have been any doubt as to the verdict, if it had been simply in the words suggested by the court, that doubt is removed by the additional words used by- the jury. *127Such a verdict under such an indictment, and especially in view of the judge’s charge, can mean nothing else than murder in the first degree ; and considering the peculiar wording of our statute, which nowhere expressly mentions the first degree of murder by name in its definition, was perhaps the very best and strongest way in which the jury could have expressed their opinion. While fully satisfied that this is a good verdict, for murder in the first degree, yet it may not be out of place to suggest that to avoid question and discussion, it may be better in the future, that all verdicts in murder cases should name the degree specifically.
The next point is that the jury should have named the punishment in their verdict. This is claimed under the provision in our statutes (chap. 57, sec. 22), which reads as follows : “ All issues of fact in a criminal case shall be tried by a jury, who shall assess the punishment in their verdict General Laws, 289.
We have had occasion to refer to this provision soméwhat in the recent case of The Territory v. Young, ante, p. 93, and have stated there to some extent our view of its intention and scope; but it may -be best to consider the matter here more fully as the connection is somewhat different.
In our criminal law as in most others, the punishment for some offenses is fixed absolutely by the statute, being an undeviating penalty. Such, for example, is the. punishment of death for nmrder in the first degree, and imprisonment for life under our definition of murder — the second degree. But for most offenses, a sliding scale of punishment is provided, so that in each case the penalty can be proportioned-somewhat to the peculiar circumstances involved. This is a proper and beneficent system which has obtained in almost every criminal code, and in our statutes finds its strongest example in the penalty for murder in the fifth degree, where the option extends from a fine of a single dollar to imprisonment. for ten years,
*128Now, some authority must have power, after it has been determined that a person is guilty of one of these crimes, for which such a sliding scale of penalties is provided, to consider the circumstances of the case and determine what penalty within those limits fixed by law shall be inflicted; to use the technical words of our statute, to “ assess the punishment.”
In most, if not all of the older states, this is done by the judge presiding; in New York two local justices are associated with him for this purpose, ánd in such cases the jury simply finds the offense of which the accused is guilty, and nothing more ; the punishment, within the limits prescribed by law, is entirely for the court.
But in our territory this power is given to the jury. They are to assess the punishment, wherever such assessment is necessary, as well as find the crime of which the accused is guilty.
The intent of the section above quoted was simply to give this power to the jury, which ordinarily had been exercised by the court. But it refers, of course, to cases where an assessment is to be made ; where there is some penalty to be determined; where there is some option and discretion to be exercised. And this includes the great majority of crimes to which, by our statutes, a sliding scale of penalties is affixed. Here the jury is to “ assess the punishment ” within, of course, the limits provided by law.
But in the case of those few crimes for which the statute absolutely fixed one unchangeable penalty, there is nothing to be “assessed” either by the judge or the jury. The penalty is established by the law, and it would be absurd to talk of assessing that which is' unalterably fixed and determined.
Had the verdict been “ guilty of murder in the fourth degree,” it would have been necessary for the jury to have “assessed the punishment,” because-the penalty for that crime is not established by law, except as to its limits, and *129within those is left to the jury. But for murder in the first degree, the law itself fixes the penalty unalterably, and no action of the jury could ratify or strengthen it. The statute in this particular instance even goes on to provide the duty of the governor in case of conviction.
Were this not entirely clear, the practice of the courts for nearly thirty-five years, since the promulgation of the Kearney code, of which this section, as to the power of the jury to assess, is a part, would be sufficient to guide us. But, in our opinion, there can be no doubt that that section only applies to those crimes whose penalties are capable of being assessed, that is to say those for which the punishment may be more or less, within certain statutory limits.
Another point raised by the defendant’s counsel is that the use of the words “ on which some part of the evidence, if true, has some bearing,” by the judge, in giving a definition of murder in the fourth degree, was improper, and might prejudice the jury, but this, we think, is not a valid objection. The words really added nothing to the sense, as the fact of charging as to that degree at all implied that some part of the evidence, if true, had some bearing thereon, and we fail to see any way in which their use could have been injurious to the defendant.
A much stronger objection is urged against the part of the judge’s charge in which he referred to the evidence given by the defendant himself. This is in the following words : “ The defendant himself was admitted as a witness before you. You have heard his statement of the case. In determining the question as to whether the defendant has told the truth, and all the truth, as to the position of the deceased at the time he received the fatal blow, and in reference to all the circumstances, it will be proper for you to consider the fact that he is the defendant, and that greatest possible temptation is presented to him to testify in his own favor, if he is really guilty.”
*130At the time of this trial, the new practice act, which provides that the court “ shall not comment upon the weight of the evidence” (Laws of 1880, chap. 6, sec. 23), had not been passed, and the rules of the common law governed in criminal cases, under sec. 18 of the act of July 12, 1851, General Laws, page 118.
We think it is the wisest course in similar cases to instruct the jury generally, that they have the right in determining the credibility and weight of evidence, especially where there is a conflict in the testimony, to consider the peculiar circumstances or position of any witness which might have the effect of influencing his evidence, without selecting the testimony of any particular witness for such comment; but under the law as it was at that time, full as strong expressions, with regard to the testimony of parties on trial, as were used in the court below, have been upheld by the courts, as in the case of - v. -, 31 Cal., 191.
Whatever might be the case with such language if used under the new law, we do not think that the instruction, as given at the time of this trial, was error.
Two other points raised by the defendant may be considered together. They are:
First. That malice must be proved and not inferred.
Second. That premeditation must be proved and not presumed.
These propositions may be true if they are intended to mean that there must be some evidence in the case from which the jury can conclude that there was malice and premeditation ; but they are not true if intended to mean that malice and premeditation must be proved directly by evidence. They are both matters which are within the breast of the person accused, and peculiarly within his own personal consciousness. They are not visible and tangible objects,' or events that can be proved by ordinary witnesses, as something more substantial might be. No one but the *131accused bimself ean testify directly from absolute persoual knowledge that they exist; and so there can be no direct evidence of their existence, except from his statements either on the trial or testified to as admissions. The jury has the right to infer their existence from actions or words of the accused, or collateral circumstances properly proved before them; and without this right, in the majority of cases, it would be impossible to prove them at all. We think there was no error in the case at bar with regard to this subject.