#### *Gwatkin v. Commonwealth.

December, 1839.

[33 Am. Dec. 264.]

Criminal Law — Instruction as to the Law — Time of Giving.* — His the right and the duty of a judge sitting-in a criminal trial, to Instruct the jury as to the law, If he think It proper to do so ; and no law prescribes any particular time at which the Instruction shall be given.

Murder — Instruction—Sufficiency and Weight of Evi= dence. — On a tri al for murder, the court instructs the jury that though they “should believe the prisoner committed the homicide under the influence of immediate intoxication, or the effects of a previous habit of intoxication upon his temper, yet if the intoxication or the effects were not such, or to such a degree, as wholly to negative the legal inference of malice, implied by law from the character and circumstances of the act, and absence of or slightness of the provocation,” they should find him guilty of murder in the second degree : Held, an instruction upon the sufficiency and weight of evidence, and error for which judgment against the prisoner must be reversed.

Richard C. Gwatkin was indicted in the circuit superiour court of Greenbrier, for the murder of Erederick M. Pitman. After ineffectual attempts to impanel a jury in that county, the cause was transferred to the circuit superiour court of Rockbridge ; where, at September term 1839, the trial was had. The jury found the prisoner guilty of murder in the second degree, and ascertained his term of imprisonment in the penitentiary to be eighteen years ; and the court pronounced sentence accordingly.

The examination of the testimony in the cause was commenced on thursday, and the argument was concluded in the evening of the following monday. The jury were then adjourned over until tuesday morning ; at which time they came into court, and were asked by the court whether they had yet agreed upon their verdict ? to which they replied in the negative. The jury thereupon propounded to the court this question— whether they had the power, if they should agree to do so, to find the prisoner guilty of murder in the second degree ? The court said, it had prepared a brief instruction *238*to the jury, to be given in the event the jury should appeal to the court for instructions; and then read to the jury an instruction in the following words:

“ If you shall be satisfied that the prisoner committed the homicide of which he is indicted, and was, at the time of its commission, neither non compos mentis nor under the artificial excitement of drunkenness, then, according to the testimony of Hurlbut, Súber, Eittlepage and Gwinn, if true, he was guilty of murder in the first degree.

“But if, believing him sane or compos mentis, legally and morally responsible for his acts, you should believe he committed the homicide under the influence of immediate intoxication, or the effects of a previous habit of intoxication upon his temper, yet if the intoxication or the effects were not such, or to such a degree, as wholly to negative the legal inference of malice, implied by law from the character and circumstances of the act, and absence of or slightness of the provocation, you should find him guilty of murder in the second degree.

“If you shall believe the condition of the prisoner, from drunkenness or its effects, and the circumstances of the homicide, were such as wholly to negative the presumption of malice aforethought, you should find the prisoner guilty of manslaughter.

“ In order to sustain the defence of insanity set up by the prisoner, and exempt him from responsibility, legal and moral, for the homicide with which he is charged, you must be satisfied from the evidence, that when he committed the act he was incapable, in consequence of insanity either partial or general, of judging between right and wrong or good and evil, and that at the time he committed the act he did not consider it a crime, an act evil in itself or forbidden by the laws of the land.

“To make partial insanity, or monomania, a good defence, you must be satisfied that the prisoner, at the *time of the act, was labouring under an insane delusion, and that the act committed was traceable to, connected with, and was the effect and consequence of that delusion, and moreover that the delusion was such as to satisfy the prisoner’s mind that the act, as to him, was justifiable.”

After the paper containing the instruction had been read to the jury, it was carried away by them into the jury room, with the permission of the court. No instruction had been given by the court to the jury at any previous period of the trial, nor had any been asked for on the part of the commonwealth or the prisoner; neither had any instruction or information been requested by the jury, except the enquiry made by them of the court as above stated.

The prisoner excepted to the instruction so given by the court, as well on account of the matter thereof, as of the circumstances under which it was given : and at the present term of the general court, he applied for a writ of error to the judgment, assigning in his petition the following grounds: “ 1. The court erred in its instruction on the subject of murder in the first degree; invading the province of the jury, by deciding on the weight of the testimony of certain witnesses, and declaring that their testimony, if true, proved the petitioner guilty of murder in the first degree. 2. The court erred in its instruction on the subject of murder in the second degree, and manslaughter. 3. The court erred in its instruction on the subject of insanity, by declaring that, to sustain that plea, the petitioner must have been unable to distinguish between right and wrong, good and evil; and that, if he was partially insane, the act must be traceable to, connected with, and be the effect of the delusion. 4. The court erred in giving the instruction it did, at the time and under the circumstances.” The writ of error was awarded.

*The cause was argued by Edward Johnston for the plaintiff in error,

and the attorney general for the commonwealth.

*

Instructions — Time of Giving. — The law does not absolutely fix any time for giving Instructions. State v. Cobbs, 40 W. Va. 722, 22 S. E. Rep. 311, citing principal case. See also, monographic *note*on “Instructions” appended to Womack v. Circle, 29 Gratt. 192.

The principal case was also cited in Stuart v. Com., 28 Gratt. 957, 958.

*

Reported ante, p. 633.

CHRISTIAN, J.,

delivered the opinion of the court. — It is contended here by the counsel for the prisoner, that after the testimony had been fully heard in the court below, and the case fully argued and submitted to the jury, without any instructions being asked either by the commonwealth or the prisoner, and the jury had retired, the court had no right to give any instructions upon the law of the case, unless asked for by the jury, and then only to the extent thus asked for. This court, however, after having deliberately weighed all the argumentsof counsel against this power thus exercised, has come to the conclusion that in this there was no error of law. This court thinks it is the right and the duty of a judge sitting in a criminal trial, to instruct the jury as to the law, if he think it proper so to instruct them, and that there is no law prescribing any particular time at which such instructions shall be given.

We will now consider the.instructions themselves, or such of them as we have deemed it necessary to consider in arriving at the conclusion to which the court has come. The jury found the prisoner guilty of murder in the second degree. It is the second branch of the instructions, in which the court has laid down what it considered to be the law in regard to what constitutes murder in the second degree, and what would warrant the jury in finding the prisoner guilty of murder in the second degree, in giving which, it is contended by the counsel for the prisoner, the court erred. The instruction is clothed in some ambiguity, and there is some difficulty in putting a proper interpretation upon it; but so far as it is necessary to consider it in reference to the question we mean to decide, we consider the substance of the instruction to be this : If you believe the prisoner ^committed the homicide, and that he was not so drunk or so insane as that his drunkenness or insanity should exempt him from the inference of malice, which otherwise would be “implied by law from the character and circumstances of the act,” you should find him guilty of murder in the second degree.

In the first place, it may be asked if this instruction does not preclude the jury entirely from enquiry into “the character and circumstances of the act,” from which the law does *239imply malice? under this instruction, was not the jury bound to find the prisoner guilty, without enquiry into any other “character and circumstances of the act,” except to ascertain whether, under the law as propounded by the court, the drunkenness or insanity of the prisoner were such as to excuse the malice? A majority of this court so thinks. But suppose it could be shewn that this is not so, and that the jury had nothing to do with ascertaining the facts and circumstances from which the law implies malice; still we think it must be conceded that the prisoner -ought to have been allowed to shew, if he could, that the killing was by accident or in selfdefence; all of which, it seems to the court, he was precluded from shewing, by the instruction of the court below. According to that instruction, if the jury were satisfied that the prisoner committed the homicide, and that there was nothing either of drunkenness or insanity to excuse him, they were to find him guilty of murder in the second degree. It is asked, find him guilty upon what? But one answer can be given — find him guilty upon the testimony in the cause. If this be so, then the court has undertaken to instruct the jury as to the sufficiency and the weight of the testimony, which we think it had no right to do, that being the exclusive province of the jury.

A majority of the court thinks that , the court below erred in giving this instruction, and that it is error for which the judgment should be reversed. And as the judgment is to be reversed for this error, we deem it prudent at this time not to decide any other points which have been raised and argued upon the other branches of the instructions of the judge below ; some of them being, in the opinion of the court, both novel and important.

JUDGES LEIGH, BROWN, DUNCAN and ERY dissent from so much of the opinion of the court as determines that there was error in the second branch of the instructions which the circuit court gave to the jury.

□ Judgment reversed, verdict set aside, and cause remanded fur a new trial.