Comp. Stat. 1910, Section 6207, is one of mixed law and fact, and as far as the facts are concerned, is to be decided by the Court upon the evidence. 3. In finding that a juror was not disqualified as having formed an opinion, held, not manifestly erroneous under the evidence. 4. It was harmless error to overrule a challenge to a juror for cause, where the juror was challenged peremptorily, although accused had exhausted his peremptory challenges; there being nothing to indicate that the jury which tried the case was not an impartial jury, or that any objectionable person sat upon the jury. 5. The word "premeditated", when used in reference to first degree murder, implies an interval, however brief, between the formation of the intent or design and the commission of the act. 6. Part of an instruction; "it is the fixed, deliberate, premeditated intention to kill which characterizes murder in the first degree, and the premeditated malice mentioned in the information need only to be such deliberation and thought as enables a person to appreciate and understand at the time the act is committed the nature of the act and its probable results," held, not misleading as telling the jury that all that was necessary to constitute murder in the first degree was that the defendant appreciated and understood the nature of the act and its probable results, when considered with the entire instruction. 7. To justify killing in self-defense, defendant must not only have believed he was in danger, but the circumstances must have been such as to afford reasonable grounds for the belief. 8. In determining whether a particular instruction was misleading, the instructions must be considered as a whole. 9. In a prosecution where defendant was convicted of murder in the first degree, evidence held sufficient to sustain a finding that the killing was premeditated. 10. In a prosecution for murder in the first degree, whether defendant killed deceased in self defense, held, for the jury. 11. An accused may be cross-examined by the state on matters to which he testified in chief. 12. An accused cannot complain of the admission of evidence brought out on cross-examination of witnesses by his attorney. ERROR to District Court, Laramie County, HON. WILLIAM C. MENTZER, Judge. Charles V. Loy was tried and convicted of murder in the first degree and brings error. The material facts are stated in the opinion. Marion A. Kline, for plaintiff in error. Defendant's rights were not properly protected at the trial; the jury was improperly instructed as to the law of self defense and of premeditated malice; the court erred in overruling the challenge to jurors; the evidence was insufficient to support a conviction of murder in the first degree; errors amounting to a denial of justice will be reviewed even where objections were not made (Ohama v. State, 24 Wyo. 513, 12 Cyc. 708); the court erred in admitting the dying declaration of deceased, which was a conclusion and not a statement of facts; the jury was not properly instructed on premeditated malice (Parker v. State, 24 Wyo. 500; Cirej v. State, 24 Wyo. 507; Ross v. State, 8 Wyo. 351); the instruction on self-defense was erroneous (State v. Yokum, 11 S. D. 544, 79 N. W. 835; McDonall v. People (Ill.) 48 N. E. 36); the giving of erroneous instructions was not cured by giving correct ones (State v. Rolla, 55 Pac. 525; State v. Pell, 59 Pac. 174; State v. Singleton, 74 Pac. 243; Palmer v. State, 9 Wyo. 40, 59 Pac. 796); the court erred in overruling the challenge to jurors for cause (6207 C. S.; Sullins v. State, 79 Ark. 127); the ruling was prejudicial since defendant had exhausted all peremptory challenges before the jury was complete (State v. Beatty, 45 Kan. 492; 25 Pac. 899; State v. Crofford, 96 N. W. 899); the evidence was insufficient to sustain first degree murder (Parker v. State, supra). W. L. Walls, Attorney General, and T. Paul Wilcox, Deputy Attorney General, for defendant in error. Lack of preparation or alleged incompetency of defendant's counsel is not grounds for a new trial except in cases of actual prejudice (12 Cyc. 708; Darby v. State, 79 Ga. 63; State v. Currans, 46 Kans. 750; Hudson v. State, 76 Ga. 727; State v. Dreher, 137 Mo. 11; State v. Benge, 61 Iowa 648); the instructions on premeditation are supported by authority (Parker v. State, 24 Wyo. 491); instructions are to be considered together (16 C. J. 1049); the instruction on the question of self defense fairly stated the subject (Parker v. State, 24 Wyo. 401); the overruling of challenges to jurors was not erroneous (Bryant v. State, 7 Wyo. 311; Carter v. Ter., 3 Wyo. 193); the verdict is fairly supported by the evidence. BEARD, CHIEF JUSTICE. The plaintiff in error, Charles V. Loy, was convicted in the District Court of Laramie County of the crime of murder in the first degree for the killing of one William Ashford, and sentenced to imprisonment in the penitentiary for life. He brings the case to this court by proceedings in error. The motion for a new trial, which was denied, assigns the following alleged errors, viz: "(1) Because the verdict of the jury and the judgment entered thereon are contrary to law. (2) Because the verdict of the jury and the judgment entered thereon are contrary to the evidence. (3) Because there is no evidence to show that the defendant premeditated the killing of the deceased and as premeditation is one of the material allegations of a charge of murder in the first degree, there can be no legal conviction on such charge unless evidence is introduced establishing the fact of premeditation. (4) Because the court erred in overruling the challenge for cause made by the defendant to the juror Louis Veta, and compelled the defendant to exercise one of its peremptory challenges on said juror, said juror having shown on his voir dire that he was biased and prejudiced against this defendant. (5) Because the court erred in overruling the challenge of the defendant for cause to the juror H. C. Klein, said juror having shown on his voir dire that he was biased and prejudiced against the defendant." The petition in error contains the same as signments of error and also the overruling of the motion for a new trial. In addition to the alleged errors assigned in the motion for a new trial, counsel who represents the plaintiff in error in this court, but who did not represent him on the trial, has earnestly urged in his brief and oral argument, that although no objections to any of the instructions given by the court to the jury, or to the admission of certain testimony, or took exceptions thereto on the trial, nevertheless, an examination of the whole record will disclose such fundamental and prejudicial error, as will show that defendant below was deprived of a fair and impartial trial, and for that reason he should be granted a new trial. This court has in a few cases of murder in the first degree in which the jury did not add to its verdict "without capital punishment", and the death penalty was imposed, considered the entire record, although it did not disclose objections and exceptions, and from such examination arrived at the conclusion that it disclosed such fundamental and prejudicial errors as had deprived the defendant of that fair and impartial trial guaranteed to him by the constitution, and amounted to a denial of justice; and, so concluding, awarded a new trial (Parker v. State, 24 Wyo. 491, 161 Pac. 552; Ohama v. State, 24 Wyo. 513, 161 Pac. 558; Cirej v. State, 24 Wyo. 507, 161 Pac. 556). It is only in such extreme cases that the statutory rule of law that to secure a consideration in this court of alleged errors occurring upon the trial, timely objections must be made and exceptions taken. In the present case exceptions were duly taken to the overruling of the challenges to the jurors Veta and Klein. It is sufficient to say that there is nothing disclosed in the testimony of the juror Veta on his voir dire which would disqualify him as a juror under the statute, and there was no error in overruling the challenge to him. The juror Klein testified on his voir dire that he knew the deceased but not personally. That he had read accounts of the homicide in the newspapers and had talked about it with others in whom he had confidence, and from what he had read and from what had been told him he had formed and expressed an opinion as to the guilt or innocence of the defendant. That he had heard others express an opinion as to the guilt or innocence of defendant. It is difficult to determine the state of mind of this man from his answers. When asked if he could enter upon the trial with his mind free from the impressions he had and let his mind be made up solely from the evidence, he answered, "I don't know whether I could or not." And when asked if he could lay aside any impression he had, he answered, "I don't believe I could:" but in answer to a question by the court he said he could try the case fairly and impartially. And again he stated that he would give the defendant the benefit of the presumption of innocence until it was overcome by competent evidence. Being further questioned by counsel for defendant, he was asked: "Q. Is it not a fact, Mr. Klein, that you have at this time a certain amount of prejudice, bias and feeling in this case? A. Well, as I have said before, I have expressed myself about the case and talked about it. Q. And you still have the same opinion you have had all the time? A. I have from the present evidence, yes. Q. Have you talked with persons who assumed to know something about the case? A. As to that I couldn't say. I was out of town at the time it happened. Q. But the persons who talked to you expressed an opinion themselves and told you certain things? A. Yes sir. Q. And they assumed to know some of the things they told you? A. I don't know whether they did or not; they thought they did. Q. And they were men upon whom you placed reliance and you believed them to be responsible people? A. Yes. Q. And you had confidence in what they said? A. Yes." Question by the court: "Q. Regardless of what has been told you by these people, and regardless of what you may have read, could you still lay any opinion you have aside and render a fair and impartial verdict on the evidence as introduced here on the stand and the instructions of the court? A. I think so." By counsel for defendant: "Q. And you formed an opinion because of rumor; you don't know |