O’NIELL, C. J.
Appellant was convicted of shooting a man with intent to commit murder. The crime is made such by section 791 of the Revised Statutes, as amended by Act 43 of 1890, p. 37. The only question in the case is whether the judge should have charged the jury — without being especially requested to charge — that the defendant might be found guilty of the crime of shooting with intent to kill. The latter crime is denounced by Act 44 of 1890, p. 37.
The difference between the two crimes is the same as the difference between murder and manslaughter. Malice is an essential element of the one but not of the other crime. In a prosecution for murder, no matter what the evidence or proof is, the judge must, without regard for any request from the defendant, instruct the jury that the defendant may be convicted of manslaughter. Rev. Stat. § 785. A failure of the judge to give the charge will vitiate a conviction of murder, even though no exception was taken before the verdict was rendered. State v. Obregon, 10 La. Ann. 799; State v. Shields, 11 La. Ann. 395; State v. Brown, 40 La. Ann. 725, 4 So. 897; State v. Brown, 41 La. Ann. 410, 6 So. 670; State v. Clark, 46 La. Ann. 705, 15 So. 83; State v. Jones, 46 La. Ann. 1395, 16 So. 369; State v. Thomas, 50 La. Ann. 148, 23 So. 250; State v. Hicks, 113 La. 781, 37 So. 753; State v. Parks, 115 La. 767, 40 So. 39; State v. Cook, 117 La.
116, 41 So. 434; State v. Kinchen, 126 La. 39, 52 So. 185; State v. Birbiglia, 149 La. 4, 88 So. 533.
The reason for the rule was mentioned in the ease last cited (State v. Birbiglia), viz:
“The reason why the judge must instruct the jury, in all prosecutions for murder, that they, may render a verdict of manslaughter, is that his failure to do so would leave the jury with no other alternative than to convict the defendant of murder or acquit him entirely. It would be the same as for the judge' to instruct the jury as to what the evidence in the case was; whereas the judge has no right to comment upon the facts or evidence in the case. In State v. Hicks, 113 La. 779, 37 So. 753, the judge’.s charge was declared erroneous, because he instructed the jurors that, although they had the power to render a verdict of manslaughter in the case, if they did so, it would be without his consent. That was the same as to tell the jurors that, under the evidence, they had no other alternative than to find the defendant guilty of murder or not guilty.”
The reason for the rule makes it as appropriate in a prosecution for shooting with intent to commit murder as it is in a prosecution for murder. It is true there are two decisions to the effect that, in a prosecution for shooting with intent to commit murder, the defendant waives his right to complain if he does not, before a verdict is rendered, request the judge to charge the jury that a conviction of shooting with intent to kill would be a responsive verdict. See State v. Marqueze, 45 La. Ann. 42, 12 So. 128, and State v. Wright, 104 La. 44, 28 So. 909. The opinion rendered in the Marqueze Case is not at all persuasive; and, in the Wright Case, the court intimated that the decision would not be followed as a precedent; viz:
“We deem this, however, an opportune occasion to admonish district judges that they should, in all cases where the law permits of other conclusions than that of simple ‘guilty’ or ‘not guilty,’ carefully instruct, the jury as to the several verdicts that may be responsive to the indictment.”
The ruling in the case quoted was founded upon the statement of the district judge that the defendant and his attorney had tacitly consented — and virtually requested —that the jury should not be instructed that a verdict of guilty of shooting with intent to kill would be a responsive verdict. The instruction would have been given if the defendant or his attorney had requested it. We quote again from the opinion, viz.:
“The judge, in the bill, says the failure to charge that other verdicts than that of ‘guilty,’ or ‘not guilty,’ could be found, was an oversight, but that neither defendant nor his counsel, both present at the time, raised any objection, and that, at the close of the charge, to the inquiry from the bench whether or not he desired any special charge given, counsel replied in the negative.”
On the contrary, in the case before us, the district judge virtually admits that he would not have instructed the jury that a verdict of guilty of shooting with intent to kill would be a responsive verdict, if the defendant or his attorney had asked for the instruction. In overruling the motion for a new trial the judge said that his reason for not instructing the jury that a conviction of the crime of shooting with intent to kill would be a. responsive verdict was that the evidence in the case did not, in his estimate . of it, warrant a conviction for shooting with intent to kill. We quote from the statement per curiam, viz.:
“The charge did not charge that the jury might bring in a verdict of guilty of shooting with intent to kill. There was no evidence offered by either the state or the defense that would have supported or tended to support a verdict of shooting with intent to kill. All the evidence that the state offered showed that the shooting was with the intent to murder. All the evidence of the defense, and practically none was offered except by the defendant himself, was offered in self-defense; the defendant himself testifying that he shot the prosecuting witness, and did it to save his life. There was no evidence of provocation, heat of passion, or anything else, offered by the defendant or by the state, that would have justified any other verdict than guilty as charged, or not guilty.” .
The judge contends, in the statement per • curiam, that, even though he should not have given the instruction that the jury might render a verdict of guilty of shooting with intent to kill — because the defendant had testified that he had shot the man in self-defense, and because the testimony therefore went too far in the way of showing provocation for the shooting — nevertheless the defendant should have made the futile request for the instruction that the jury might render a verdict of shooting with intent to kill. Inasmuch as the judge would not have given the charge if it had be.en requested, we cannot reasonably hold that the defendant should suffer for omitting the futile request. Lex non cogit ad vana seu inutilia.
In another statement per curiam it is admitted that there was some testimony from which the jury might have concluded that the prosecuting witness (Tom Smith) was shot while he and the defendant were engaged in a fight; and from which, surely, the jury might have concluded that the crime was not shooting with intent to murder, but shooting with intent to kill. We refer to the judge’s statement in the bill reserved to the overruling of the defendant’s objection to the testimony of the prosecuting witness (Tom Smith), called in rebuttal, viz.:
“This testimony tended to rebut testimony given by the defendant himself. It was the theory of the state, supported by practically all the testimony on that point, that the witness Tom Smith was shot by the defendant while the witness was unarmed, and walking away from the defendant.
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O’NIELL, C. J.
Appellant was convicted of shooting a man with intent to commit murder. The crime is made such by section 791 of the Revised Statutes, as amended by Act 43 of 1890, p. 37. The only question in the case is whether the judge should have charged the jury — without being especially requested to charge — that the defendant might be found guilty of the crime of shooting with intent to kill. The latter crime is denounced by Act 44 of 1890, p. 37.
The difference between the two crimes is the same as the difference between murder and manslaughter. Malice is an essential element of the one but not of the other crime. In a prosecution for murder, no matter what the evidence or proof is, the judge must, without regard for any request from the defendant, instruct the jury that the defendant may be convicted of manslaughter. Rev. Stat. § 785. A failure of the judge to give the charge will vitiate a conviction of murder, even though no exception was taken before the verdict was rendered. State v. Obregon, 10 La. Ann. 799; State v. Shields, 11 La. Ann. 395; State v. Brown, 40 La. Ann. 725, 4 So. 897; State v. Brown, 41 La. Ann. 410, 6 So. 670; State v. Clark, 46 La. Ann. 705, 15 So. 83; State v. Jones, 46 La. Ann. 1395, 16 So. 369; State v. Thomas, 50 La. Ann. 148, 23 So. 250; State v. Hicks, 113 La. 781, 37 So. 753; State v. Parks, 115 La. 767, 40 So. 39; State v. Cook, 117 La.
116, 41 So. 434; State v. Kinchen, 126 La. 39, 52 So. 185; State v. Birbiglia, 149 La. 4, 88 So. 533.
The reason for the rule was mentioned in the ease last cited (State v. Birbiglia), viz:
“The reason why the judge must instruct the jury, in all prosecutions for murder, that they, may render a verdict of manslaughter, is that his failure to do so would leave the jury with no other alternative than to convict the defendant of murder or acquit him entirely. It would be the same as for the judge' to instruct the jury as to what the evidence in the case was; whereas the judge has no right to comment upon the facts or evidence in the case. In State v. Hicks, 113 La. 779, 37 So. 753, the judge’.s charge was declared erroneous, because he instructed the jurors that, although they had the power to render a verdict of manslaughter in the case, if they did so, it would be without his consent. That was the same as to tell the jurors that, under the evidence, they had no other alternative than to find the defendant guilty of murder or not guilty.”
The reason for the rule makes it as appropriate in a prosecution for shooting with intent to commit murder as it is in a prosecution for murder. It is true there are two decisions to the effect that, in a prosecution for shooting with intent to commit murder, the defendant waives his right to complain if he does not, before a verdict is rendered, request the judge to charge the jury that a conviction of shooting with intent to kill would be a responsive verdict. See State v. Marqueze, 45 La. Ann. 42, 12 So. 128, and State v. Wright, 104 La. 44, 28 So. 909. The opinion rendered in the Marqueze Case is not at all persuasive; and, in the Wright Case, the court intimated that the decision would not be followed as a precedent; viz:
“We deem this, however, an opportune occasion to admonish district judges that they should, in all cases where the law permits of other conclusions than that of simple ‘guilty’ or ‘not guilty,’ carefully instruct, the jury as to the several verdicts that may be responsive to the indictment.”
The ruling in the case quoted was founded upon the statement of the district judge that the defendant and his attorney had tacitly consented — and virtually requested —that the jury should not be instructed that a verdict of guilty of shooting with intent to kill would be a responsive verdict. The instruction would have been given if the defendant or his attorney had requested it. We quote again from the opinion, viz.:
“The judge, in the bill, says the failure to charge that other verdicts than that of ‘guilty,’ or ‘not guilty,’ could be found, was an oversight, but that neither defendant nor his counsel, both present at the time, raised any objection, and that, at the close of the charge, to the inquiry from the bench whether or not he desired any special charge given, counsel replied in the negative.”
On the contrary, in the case before us, the district judge virtually admits that he would not have instructed the jury that a verdict of guilty of shooting with intent to kill would be a responsive verdict, if the defendant or his attorney had asked for the instruction. In overruling the motion for a new trial the judge said that his reason for not instructing the jury that a conviction of the crime of shooting with intent to kill would be a. responsive verdict was that the evidence in the case did not, in his estimate . of it, warrant a conviction for shooting with intent to kill. We quote from the statement per curiam, viz.:
“The charge did not charge that the jury might bring in a verdict of guilty of shooting with intent to kill. There was no evidence offered by either the state or the defense that would have supported or tended to support a verdict of shooting with intent to kill. All the evidence that the state offered showed that the shooting was with the intent to murder. All the evidence of the defense, and practically none was offered except by the defendant himself, was offered in self-defense; the defendant himself testifying that he shot the prosecuting witness, and did it to save his life. There was no evidence of provocation, heat of passion, or anything else, offered by the defendant or by the state, that would have justified any other verdict than guilty as charged, or not guilty.” .
The judge contends, in the statement per • curiam, that, even though he should not have given the instruction that the jury might render a verdict of guilty of shooting with intent to kill — because the defendant had testified that he had shot the man in self-defense, and because the testimony therefore went too far in the way of showing provocation for the shooting — nevertheless the defendant should have made the futile request for the instruction that the jury might render a verdict of shooting with intent to kill. Inasmuch as the judge would not have given the charge if it had be.en requested, we cannot reasonably hold that the defendant should suffer for omitting the futile request. Lex non cogit ad vana seu inutilia.
In another statement per curiam it is admitted that there was some testimony from which the jury might have concluded that the prosecuting witness (Tom Smith) was shot while he and the defendant were engaged in a fight; and from which, surely, the jury might have concluded that the crime was not shooting with intent to murder, but shooting with intent to kill. We refer to the judge’s statement in the bill reserved to the overruling of the defendant’s objection to the testimony of the prosecuting witness (Tom Smith), called in rebuttal, viz.:
“This testimony tended to rebut testimony given by the defendant himself. It was the theory of the state, supported by practically all the testimony on that point, that the witness Tom Smith was shot by the defendant while the witness was unarmed, and walking away from the defendant. The defendant testified that he shot Tom Smith while the latter was advancing on the defendant, and while Tom Smith was holding a knife in his left hand, and had his right fist raised to strike; the defendant claiming that he shot at the knife which the witness was holding in his left hand, and therefore hit the witness in the left hand, that being the place where he was shot.
“In order to show that the witness Tom Smith was unarmed at the time of the shooting, and to contradict the defendant’s testimony, the state recalled Tom Smith, who testified that he was right-handed; the inference, of course, being that a right-handed man would not fight with a knife in his left hand.”
If it had been the judge’s province to decide the questions of fact with regard to the question of guilt, or the degree of guilt, the judge might have been quite right in his conclusion that there was no middle ground for the jury to take — that, if Tom Smith had died from the wound, the defendant would have been either guilty of murder or not guilty at all. But it was the province of the jury alone to determine whether there was sufficient provocation only to mitigate the crime, or sufficient to amount to justification. It is sometimes a close question whether the facts and circumstances of a felonious homicide, or felonious shooting, warrant the conclusion, beyond a reasonable doubt, that the crime was committed with malice aforethought. It was not an unilateral proposition in this case.
The record and sentence are annulled, and the ease is remanded to the district court for a new trial consistent with this opinion-