Sprague, J.,
delivered the opinion of the Court, Wallace, J., Temple, J., and Rhodes, C. J., concurring.
The transcript in this case consists of two hundred and twelve legal cap manuscript pages, without an index or any reference to its contents attached thereto, nor do the points and brief of counsel for appellant make any intelligible reference to the page or pages of the transcript upon which matter objected to can be found. This mode of presenting transcripts in criminal cases imposes much labor upon this Court, and is in direct violation of our Buie 5. Counsel who bring cases here on appeal are expected to conform to our rules. ' The gross negligence of counsel for appellant in this case, in presenting such a transcript, and a correspondingly incomplete brief, merits severe censure.
We have examined with care all the evidence and all the instructions given and refused by the Court, as presented by the record.
The error alleged in defendant’s first point is not well taken. The question objected to was proper in itself, but, if otherwise, the answer thereto could not have prejudiced the defendant.
The objection to the question embraced in defendant’s second point was properly overruled. The prosecution were entitled to an answer to the question, it being on cross-examination of the defendant as a witness in his own behalf respecting an occurrence about which he had testified in chief: First—For the purpose of showing express malice; and, Second—For the purpose of laying a foundation to impeach his credibility.
The objection to the question embraced in defendant’s third point should have been sustained, but, as no answer [635]*635was given to the question, the error was immaterial and could not have prejudiced the defendant.
Defendant’s fourth point is not well taken. The evidence in chief on the part of the prosecution had been strictly confined to acts and declarations of defendant and deceased, Belt, and others who were present at the time of the homicide. No evidence Avas introduced of matters occurring at any other time or place, or of any previous hostile feeling on the part of defendant against deceased.
The evidence on behalf of defendant, including his own testimony, had taken a very wide range, covering a space of over four years, and tended to establish that during all this time a most hostile, vindictive feeling had been entertained and indulged in by the deceased toward defendant; that deceased had threatened to kill defendant, and on one occasion, five years before his death, according to the testimony of defendant himself, would have taken the life of defendant but for Avant of a percussion cap on his pistol. No evidence had been offered or introduced on the part of the prosecution in the first, instance tending to show express malice on the part of defendant, except his declarations at the time of and immediately in connection with the homicide or shooting of deceased by him. Under these circumstances the Court, after defendant had closed his evidence, was fully justified in permitting the prosecution to introduce evidence tending to rebut the evidence in behalf of defendant as to the state of feeling existing during this time on the part of deceased toward defendant, and further tending to establish a hostile, vindictive feeling indulged and entertained continuously, for several years before and up to the day of the homicide, on the part of defendant toward the deceased; and also any threats which defendant had made against the life of deceased, for the purpose of showing express malice. The point and character of the evidence introduced by either the defendant or the prosecution, in rebuttal, quite as explicitly as any suggested by the party, fur pish to the Court reasons for allowing either party, after having once closed his evidence in chief, to offer evidence upon their original cause under Section 362 of the [636]*636Criminal Practice Act. These views apply with controlling force to defendant’s fifth, sixth, seventh and eighth points, as presented in brief of counsel, neither of which is well taken.
The exception urged by defendant to instructions given to the jury, at request of the prosecution, embraced in the tenth point of brief of counsel, is not well taken.
' The portion of the instructions given, and to which objection is first urged under the tenth point, was given in illustration of the legal distinction between murder in the first degree and murder in the second degree. The sentence in which the objectionable matter is found reads as follows: “Let it be supposed that a man, without uttering a word, should strike another on the head with an axe, it must, by every principle by which we can judge of human actions, be deemed a premeditated act. Again, when one with a loaded pistol takes deliberate aim and shoots another, it is held to be murder in the first degree.” This language, taken by itself, without qualification, is doubtless obnoxious to the objections urged by counsel, but with the qualifications contained in subsequent portions of the instructions given in the same connection, at request of the prosecution, and the first and eighth instructions given by the Court at request of defendant as applicable to justifiable homicide, we are satisfied defendant was not prejudiced thereby, but that the law upon the point embraced in the instruction was finally given to the jury in a fight quite as favorable to defendant as he had a right to demand,
. The second objection to language used in an instruction under defendant’s tenth point is without foundation. The entire instruction in which the objectionable language is found was addressed to the jury with a view of impressing upon them the necessity of a careful investigation of the evidence offered to establish the fact of insanity, when such a fact is relied upon as a defense. The language objected to was intended not as particularly applicable to the case then before the Court, but as general remarks, or statement of occurrences notoriously existing under special circumstances stated by the Court, and was presented to the jury [637]*637as illustrative of the importance of special care and circumspection in considering the evidence tending to establish the insanity of a defendant at the time of the homicide charged against him, in all cases where such defense is relied upon.
We are satisfied the instruction as given, was entirely proper under the circumstances developed by the evidence in this case. It reads as follows: “In prosecutions for crimes the defense of insanity is often interposed, and thereby becomes a subject of paramount importance in criminal jurisprudence. A due regard for the ends of justice and the peace and welfare of society, no less than mercy to the accused, require that it should be thoroughly and carefully weighed. It is a plea sometimes resorted to in cases where aggravated crimes have been committed under circumstances which afford full proof of the overt acts, and render hopeless all other means of evading punishment. While, therefore, it ought to be viewed as a not less full and complete, than it is a humane defense, when satisfactorily established, it yet should be examined into with great care, lest an ingenious counterfeit of the malady furnish protection to guilt.”
The further objection under the tenth point of defendant* urged to a single sentence found in the instructions given, is without force or merit, when taken in connection with sentences immediately preceding and following in the same paragraph.
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Sprague, J.,
delivered the opinion of the Court, Wallace, J., Temple, J., and Rhodes, C. J., concurring.
The transcript in this case consists of two hundred and twelve legal cap manuscript pages, without an index or any reference to its contents attached thereto, nor do the points and brief of counsel for appellant make any intelligible reference to the page or pages of the transcript upon which matter objected to can be found. This mode of presenting transcripts in criminal cases imposes much labor upon this Court, and is in direct violation of our Buie 5. Counsel who bring cases here on appeal are expected to conform to our rules. ' The gross negligence of counsel for appellant in this case, in presenting such a transcript, and a correspondingly incomplete brief, merits severe censure.
We have examined with care all the evidence and all the instructions given and refused by the Court, as presented by the record.
The error alleged in defendant’s first point is not well taken. The question objected to was proper in itself, but, if otherwise, the answer thereto could not have prejudiced the defendant.
The objection to the question embraced in defendant’s second point was properly overruled. The prosecution were entitled to an answer to the question, it being on cross-examination of the defendant as a witness in his own behalf respecting an occurrence about which he had testified in chief: First—For the purpose of showing express malice; and, Second—For the purpose of laying a foundation to impeach his credibility.
The objection to the question embraced in defendant’s third point should have been sustained, but, as no answer [635]*635was given to the question, the error was immaterial and could not have prejudiced the defendant.
Defendant’s fourth point is not well taken. The evidence in chief on the part of the prosecution had been strictly confined to acts and declarations of defendant and deceased, Belt, and others who were present at the time of the homicide. No evidence Avas introduced of matters occurring at any other time or place, or of any previous hostile feeling on the part of defendant against deceased.
The evidence on behalf of defendant, including his own testimony, had taken a very wide range, covering a space of over four years, and tended to establish that during all this time a most hostile, vindictive feeling had been entertained and indulged in by the deceased toward defendant; that deceased had threatened to kill defendant, and on one occasion, five years before his death, according to the testimony of defendant himself, would have taken the life of defendant but for Avant of a percussion cap on his pistol. No evidence had been offered or introduced on the part of the prosecution in the first, instance tending to show express malice on the part of defendant, except his declarations at the time of and immediately in connection with the homicide or shooting of deceased by him. Under these circumstances the Court, after defendant had closed his evidence, was fully justified in permitting the prosecution to introduce evidence tending to rebut the evidence in behalf of defendant as to the state of feeling existing during this time on the part of deceased toward defendant, and further tending to establish a hostile, vindictive feeling indulged and entertained continuously, for several years before and up to the day of the homicide, on the part of defendant toward the deceased; and also any threats which defendant had made against the life of deceased, for the purpose of showing express malice. The point and character of the evidence introduced by either the defendant or the prosecution, in rebuttal, quite as explicitly as any suggested by the party, fur pish to the Court reasons for allowing either party, after having once closed his evidence in chief, to offer evidence upon their original cause under Section 362 of the [636]*636Criminal Practice Act. These views apply with controlling force to defendant’s fifth, sixth, seventh and eighth points, as presented in brief of counsel, neither of which is well taken.
The exception urged by defendant to instructions given to the jury, at request of the prosecution, embraced in the tenth point of brief of counsel, is not well taken.
' The portion of the instructions given, and to which objection is first urged under the tenth point, was given in illustration of the legal distinction between murder in the first degree and murder in the second degree. The sentence in which the objectionable matter is found reads as follows: “Let it be supposed that a man, without uttering a word, should strike another on the head with an axe, it must, by every principle by which we can judge of human actions, be deemed a premeditated act. Again, when one with a loaded pistol takes deliberate aim and shoots another, it is held to be murder in the first degree.” This language, taken by itself, without qualification, is doubtless obnoxious to the objections urged by counsel, but with the qualifications contained in subsequent portions of the instructions given in the same connection, at request of the prosecution, and the first and eighth instructions given by the Court at request of defendant as applicable to justifiable homicide, we are satisfied defendant was not prejudiced thereby, but that the law upon the point embraced in the instruction was finally given to the jury in a fight quite as favorable to defendant as he had a right to demand,
. The second objection to language used in an instruction under defendant’s tenth point is without foundation. The entire instruction in which the objectionable language is found was addressed to the jury with a view of impressing upon them the necessity of a careful investigation of the evidence offered to establish the fact of insanity, when such a fact is relied upon as a defense. The language objected to was intended not as particularly applicable to the case then before the Court, but as general remarks, or statement of occurrences notoriously existing under special circumstances stated by the Court, and was presented to the jury [637]*637as illustrative of the importance of special care and circumspection in considering the evidence tending to establish the insanity of a defendant at the time of the homicide charged against him, in all cases where such defense is relied upon.
We are satisfied the instruction as given, was entirely proper under the circumstances developed by the evidence in this case. It reads as follows: “In prosecutions for crimes the defense of insanity is often interposed, and thereby becomes a subject of paramount importance in criminal jurisprudence. A due regard for the ends of justice and the peace and welfare of society, no less than mercy to the accused, require that it should be thoroughly and carefully weighed. It is a plea sometimes resorted to in cases where aggravated crimes have been committed under circumstances which afford full proof of the overt acts, and render hopeless all other means of evading punishment. While, therefore, it ought to be viewed as a not less full and complete, than it is a humane defense, when satisfactorily established, it yet should be examined into with great care, lest an ingenious counterfeit of the malady furnish protection to guilt.”
The further objection under the tenth point of defendant* urged to a single sentence found in the instructions given, is without force or merit, when taken in connection with sentences immediately preceding and following in the same paragraph.
The eleventh point made by defendant is untenable. The gist and substance of "the ninth and tenth instructions asked for by the defendant and refused by the Court, are fully embraced in the first and eighth instructions asked for by him and given by the Court.
The affidavit relied upon to establish improper conduct on the part of the juror, Thomas Eussin, does not tend to show that said juror had, during the progress of the trial, been voluntarily or otherwise subjected to any improper influence. All that can be claimed for this affidavit is that it tends to show that the juror had not a proper appreciation of his position as a juror, and manifested an inclination to talk about the case; but the same affidavit furnishes conclusive [638]*638evidence that the impropriety of the juror could not have affected the defendant prejudicially.
Upon a careful examination and consideration of all the evidence presented in this case, it most conclusively appears that the defendant committed the homicide charged in the indictment deliberately and premeditatedly, in pursuance of frequent previous threats so to do, and under circumstances furnishing not the least possible present provocation or rational excuse therefor; and we are unable to discover from the evidence any fact or circumstance in extenuation of the crime, as charged in the indictment, or tending to reduce the same below murder in the first degree, or which could have influenced the jury in determining the degree of the crime, to be murder in the second degree instead of murder in the first degree, which the evidence so clearly shows it to have been. Further, we cannot, consistently with our sense of duty, restrain an expression of our surprise at, and disapprobation of, the unparalleled leniency of the Court in fixing by its judgment the lowest penalty of the law upon the verdict as rendered, instead of the extreme penalty, which a proper administration of justice so manifestly demanded.
We are of opinion that the Court below was fully justified in overruling defendant’s motion for a new trial, and that the judgment and order denying a new trial should be affirmed.
80 ordered,
Crockett, J., expressed no opinion.