Judgment of conviction affirmed; no opinion.

Concur: Cullen, Ch. J., Gray, Haight, Willard Bartlett, Hisoock and Collin, JJ.

(dissenting). I dissent and vote to reverse upon the following grounds:

1. The jury were not adequately instructed as to the bearing of intoxication upon ability to deliberate, although this w.as of vital importance to the defendant. There was evidence tending to show that the defendant was intoxicated at the time of the homicide, and the jury should have been told that if this was the fact, although it did not constitute a defense, they should consider it upon the *583 question of deliberation, which is essential to the crime of murder in the first degree.

2. The district attorney in his final address to the jury was permitted to state facts as within his own knowledge, although no evidence had been given tending to establish them. He was thus allowed, in effect, to testify without being sworn and to state what he claimed were facts without the test of cross-examination as to his credibility.

These errors raise a presumption of injury to the defendant, and they should not be overlooked even under the latitude allowed by section 642 of the Code of Criminal Procedure.