OPINION OF THE- COURT.
Appellant was tried and convicted of the crime of murder in the first degree and appeals. On August 4, 1919, appellant attended *270a dance at the town of Central, Grant county, N. M. Appellant had asked a young lady, one Julia Olguin, to dance with him, and she had refused. Thereupon he told her that if she would not dance with him she could not dance with any other person. Later she was dancing with one Casamero Lucero, whereupon appellant caught hold of Lucero and told him that he could not dance with Miss Olguin. Lucero slapped or pushed appellant, and some other men pushed him outside the door and closed the door. Later Efren Rios entered the ballroom' and told Lucero that Carpió, the appellant, wanted to see him outside. Lucero went out followed by Rios and approached appellant, and when he got to within 14 or 15 paces of appellant, appellant told him to stop; whereupon appellant fired at Lucero, and the bullet struck Rios and killed him. A second shot was fired at Lucero, wounding him but not fatally.
[1] The first point made upon, which appellant relies for a reversal is that there was a variance between the allegation of the indictment and. the proof adduced upon the part of the state, in that the indictment alleged that the defendant feloniously, willfully, deliberately, premeditatedly, of his malice aforethought, and from a deliberate and premeditated design, then and there unlawfully and maliciously to effect the death of Efren Rios, did assault and shoot the said Efren Rios, from the effects of which assault and - shot said Rios died; whereas, the proof showed that the malice and deliberation were directed against Lucero and not Rios. There is no merit in this argument, however, because under the law the malice and deliberation were transferred from Lucero to Rios. In other words, the malice followed the bullet. In Wharton on Homicide (3d Ed.) § 359, the author says:
“The rule is nearly; if not quite, universal that one who kills another, mistaking him for a third person whom he in*271tended to kill, is guilty or innocent of the offense charged the same as if the fatal act had killed the person intended to be killed. * * * And a charge that murder was done willfully, deliberately, and premeditatedly, and with malice aforethought, is sustained by proof that it was committed with a mind imbued with these qualities, though they were directed against a person other than the one killed.”
In the case of Brooks v. State, 141 Ark. 57, 216 S. W. 705, a very late case, having been decided December 1, 1919 (reversed on other grounds), the defendant had been indicted for the murder of a girl named Irene Crawford, although the shot was directed at one John Law. It was insisted by the appellant that the indictment was defective because it charged the defendant with killing Irene Crawford with “the willful, malicious, premeditated and deliberate intent then and there to kill and murder her, the said Irene Crawford.”
The court held that there was no error in the indictment, stating:
“An indictment for homicide in a case like this must allege the assault as made on the person killed. Where the accused shoots at one man and kills another, malice will be implied as to the latter; and a felonious intent is transferred, on the same ground, as where poison is laid to destroy one person and is taken by another. Hence the felonious intent is thus transferred, and the indictment must be drawn accordingly. That is to say, it must allege that the assault was made on the party murdered, etc., in all respects just as if the party killed had been the party shot at.”
In the case of State v. Clark, 147 Mo. 20, 47 S. W. 886, a question similar to that raised in the case of Brooks v. State, supra, was before the supreme court of Missouri; one count of the indictment charging that the design to kill was directed against one Lizzie Williamson, alias Lizzie Clark, while the person killed was Lizzie Hatch. The court held that count in the indictment was bad, upon the ground that the malice was transferred, and therefore that the indictment should have alleged the design to kill *272to have been directed against the deceased. This court said:
“ ‘Where the party shoots at one man and Mils another, malice will be implied as to the latter; and the felonious intent is transferred, on the same ground, where poison is laid to destroy one person and is taken by another.’ * * * And where the felonious intent is thus transferred, the indictment must be drawn accordingly, to wit, it must allege that the assault was made on the party murdered, and so on, in all respects, just as if the party killed had been the party shot at. So are all the precedents in this state and elsewhere.”
We know of no cases to the contrary. It follows that there is no merit in this contention.
.[2] The court gave to the jury instructions as to murder in the first and second degrees which followed the allegations of the indictment, that is to say, as to first degree; charged the jury that if appellant deliberately and with malice aforethought shot at Rios intending to kill him, he would be guilty of murder in the first degree, and if the shooting was done without deliberation, but with malice aforethought, it would be murder in the second degree. The instructions were proper, as the malice was transferred or followed the bullet. It would have been proper for the court to have explained in his instructions this principle to the jury.
The tnird point urged is that the indictment was defective in that it charged that the deliberation and malice aforethought were directed at Efren Rios instead of Lucero whom the appellant intended to kill. What we have said under the first proposition disposes of' tais point.
[3] It is lastly urged that the court was in error in giving instruction No. 26 to the jury. This instruction in effect told the jury that if appellant shot at Lucero unlawfully, willfully and feloniously, not in the first degree. No objection was made to this and killed Rios, he would then be guilty of murder in his necessary or apparent necessary self-defense, *273instruction in the court below; consequently it is not open to review here. This has been the uniform holding of this court. State v. Eaker, 17 N. M. 479, 131 Pac. 489; State v. Lucero, 17 N. M. 484, 131 Pac. 491; State v. Klasner, 19 N. M. 479, 145 Pac. 679, Ann. Cas. 1917D 824; State v. Johnson, 21 N. M. 432, 155 Pac. 721; State v. Orfanakis, 22 N. M. 107, 159 Pac. 674; State v. Starr, 24 N. M. 180, 173 Pac. 674; State v. Whitener, 25 N. M. 20, 175 Pac. 870; State v. Parks, 25 N. M. 395, 183 Pac. 433.
David E. Grant, Esq., who so ably briefed and presented the case in this court, did so at the request of this court, and had no connection with the case in the court below.
The judgment will be affirmed; and it is so ordered.
RAYNOLDS and PARKER, JJ., concur.