Dent, Judge:
At the October term, 1895, of the Circuit Court of Ritchie county, Erank Cross was found guilty of murder in the first degree, and sentenced to the - penitentiary for life. From this judgment he obtained a writ of error.
The facts shown in evidence are as follows, to wit: On the 5th day of September, 1895, the accused went to the house of liis sister, Ella Taylor, near Cornwallis, in Ritchie county, where his wife had preceded him. He was partly intoxicated, from drinking alcohol, and had on his person a self-cocking revolver he had obtained that day from one George Garrison for the ostensible purpose of preventing a disturbance at his house, where he proposed having a dance that night. When he entered the home of his sister, he spoke to her, and began playing with one of her children, named Edna. His wife began plaguing him about carrying a revolver. He pulled it out, pointed it at her, and told her that if she did not shut up he would shoot her. His sister told him to put it up, or he might hurt some of [255]*255the children. This he started to do, .and while putting the revolver in his pocket, it was, in some manner, discharged; the ball striking the sister Mrs. Taylor, in the left breast, and immediately killing her. The accused cried out, “I have killed my poor sister!” picked up her body, and placed it on some clothes lying on the floor in another room of the house. He then ran out, and caught a young girl by the name of Delaney, who was leaving the house, and told her not to tell; that he was drunk, and did not go to kill her. He then went up to Delaney’s himself, and after some communication with a woman of the family, returned, hid the revolver under the corner of the house, and started for his mother’s house, in Cairo. At a short distance he met the husband of deceased coming towards the house, and with the exclamation of “Oh, Cam!” passed him, going out of the road to avoid him, and proceeded on his way. Arriving at his mother’s, he hardly got seated until his brother came in and informed his mother what he had done. The officers came immediately and arrested him. Although the state endeavored to show it, there was apparently no ill feeling existing between the accused and the deceased, but their relations were entirely friendly, except that, on occasion, his sister would remonstrate with him about his conduct, and he would inform her that he would manage his house to suit himself. There was no evidence of premeditated or intentional killing. The only two witnesses who saw the accused just before the discharge (being his wife and niece, a child of deceased) say he was in the act of putting the revolver in his pocket when it was discharged. In this state of the testimony the court at the instance of the prosecution, gave the following seven instructions, to wit:
“Instructions for State. No. 1. The jury are instructed that, if they believe from the evidence that the defendant was intoxicated at the time of the killing of Mi’s. Taylor, he might yet be capable of deliberation and premeditation; and if the jury believe from all the evidence in the case that the defendant willfully, maliciously, deliberately, and premeditately killed Mrs. Taylor, they should find him guilty of murder in the first degree, although he was in[256]*256toxicated at the time of the killing.” This instruction is without evidence to sustain it, as there is no evidence to show, or tending to show, that the “defendant willfully, maliciously, deliberately, and premeditately killed Mrs. Taylor.”
“No. 2. The jury are instructed that the defendant, Frank Cross, could not voluntarily make himself so drunk as to become, on that account, irresponsible for his conduct during such drunkenness, aud that he might have been perfectly unconscious of what he did, aud yet been responsible; and further, he might have been at the time of the killing of Mrs. Taylor incapable of express malice, for the law implies malice in such a case from the nature of the weapon used, the absence of provocation, and other circumstances under which the killing was done.” This instruction is also bad, for the law does not imply malice from the nature of the weapon used, unless it first appears that the killing was willfully or intentionally done. Malice is never implied in cases of mere accident, although occasioned by a deadly weapon.
“No. 3. The jury is instructed that drunkenness is no excuse for the commission of a crime.” This instruction wrongfully assumes that a crime was committed, and that drunkenness is given as an excuse or justification. While, as an abstract principle of law, the instruction is correct, yet it has no application to the present case. The drunkenness is not set up as an excuse for a crime, but as a potent or contributing cause of an accident. Unskillfulness is no excuse for the commission of a crime, and yet it may be the cause of accidental homicide. And the same may be said of drunkenness. And the fact that a person may be drunk when he accidentally causes the death of another does not convert such accident into a crime. Under our law, drunkenness is nota felony, but is a mere misdemean- or.
“No. 5. The jury are instructed that if they believe the defendant Frank Cross had formed a willful, deliberate, and premeditated design to kill Mi's. Taylor, and, in pursuance of such design, voluntarily made himself drunk for the purpose of nerving his animal courage for the accom-[257]*257plisbment of such design, and then met Mrs. Taylor when be was so drunk as not then to be able to deliberate on and premeditate the killing, and killed Mrs. Taylor, it is murder in the first degree, and the jury should so find.” This instruction is not only wholly without evidence to justify it, but is given right in the face of the evidence to the contrary.
“No. 6. The jury is instructed that aman is presumed to intend that which he does, or which is the immediate or necessary consequence of his act; and if the prisoner, Frank Cross, with a deadly weapon in his possession, without any, or upon very slight, provocation, killed Ella Taylor, he (the prisoner) is 'prima facie guilty of willful, deliberate, and premeditated killing, and the necessity rests upon him of showing extenuating circumstances; and if the jury believe from the evidence that he has not proven such extenuating circumstances or that such extenuating circumstances do not appear from the case made by the state, they should find him guilty of murder in the first degree.” This instruction is only proper in a case where the killing appears to have been willfully and intentionally done.
“No. 7. The jury are instructed that if they believe from all the evidence in the case that the defendant, Frank Cross, was guilty of the use of a deadly weapon in the killing of Mrs. Ella Taylor, the intent and the malice may both be inferred from such act; and such malice need not have been directed against her alone, but was such as showed a heai’t regardless of social duty, and fatally bent on mischief.” This' instruction was improper, in this case, for the same reason that all the others were improper, and for the further reason that there is no evidence to show that the prisoner had a “heart regardless of social duty, and fatally bent on mischief.” The only evidence even slightly tending in this direction was that the accused sometimes indulged in the use of intoxicating drinks, and this, in the present state of the law and the rules of social duty, would not sustain such instruction.
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Dent, Judge:
At the October term, 1895, of the Circuit Court of Ritchie county, Erank Cross was found guilty of murder in the first degree, and sentenced to the - penitentiary for life. From this judgment he obtained a writ of error.
The facts shown in evidence are as follows, to wit: On the 5th day of September, 1895, the accused went to the house of liis sister, Ella Taylor, near Cornwallis, in Ritchie county, where his wife had preceded him. He was partly intoxicated, from drinking alcohol, and had on his person a self-cocking revolver he had obtained that day from one George Garrison for the ostensible purpose of preventing a disturbance at his house, where he proposed having a dance that night. When he entered the home of his sister, he spoke to her, and began playing with one of her children, named Edna. His wife began plaguing him about carrying a revolver. He pulled it out, pointed it at her, and told her that if she did not shut up he would shoot her. His sister told him to put it up, or he might hurt some of [255]*255the children. This he started to do, .and while putting the revolver in his pocket, it was, in some manner, discharged; the ball striking the sister Mrs. Taylor, in the left breast, and immediately killing her. The accused cried out, “I have killed my poor sister!” picked up her body, and placed it on some clothes lying on the floor in another room of the house. He then ran out, and caught a young girl by the name of Delaney, who was leaving the house, and told her not to tell; that he was drunk, and did not go to kill her. He then went up to Delaney’s himself, and after some communication with a woman of the family, returned, hid the revolver under the corner of the house, and started for his mother’s house, in Cairo. At a short distance he met the husband of deceased coming towards the house, and with the exclamation of “Oh, Cam!” passed him, going out of the road to avoid him, and proceeded on his way. Arriving at his mother’s, he hardly got seated until his brother came in and informed his mother what he had done. The officers came immediately and arrested him. Although the state endeavored to show it, there was apparently no ill feeling existing between the accused and the deceased, but their relations were entirely friendly, except that, on occasion, his sister would remonstrate with him about his conduct, and he would inform her that he would manage his house to suit himself. There was no evidence of premeditated or intentional killing. The only two witnesses who saw the accused just before the discharge (being his wife and niece, a child of deceased) say he was in the act of putting the revolver in his pocket when it was discharged. In this state of the testimony the court at the instance of the prosecution, gave the following seven instructions, to wit:
“Instructions for State. No. 1. The jury are instructed that, if they believe from the evidence that the defendant was intoxicated at the time of the killing of Mi’s. Taylor, he might yet be capable of deliberation and premeditation; and if the jury believe from all the evidence in the case that the defendant willfully, maliciously, deliberately, and premeditately killed Mrs. Taylor, they should find him guilty of murder in the first degree, although he was in[256]*256toxicated at the time of the killing.” This instruction is without evidence to sustain it, as there is no evidence to show, or tending to show, that the “defendant willfully, maliciously, deliberately, and premeditately killed Mrs. Taylor.”
“No. 2. The jury are instructed that the defendant, Frank Cross, could not voluntarily make himself so drunk as to become, on that account, irresponsible for his conduct during such drunkenness, aud that he might have been perfectly unconscious of what he did, aud yet been responsible; and further, he might have been at the time of the killing of Mrs. Taylor incapable of express malice, for the law implies malice in such a case from the nature of the weapon used, the absence of provocation, and other circumstances under which the killing was done.” This instruction is also bad, for the law does not imply malice from the nature of the weapon used, unless it first appears that the killing was willfully or intentionally done. Malice is never implied in cases of mere accident, although occasioned by a deadly weapon.
“No. 3. The jury is instructed that drunkenness is no excuse for the commission of a crime.” This instruction wrongfully assumes that a crime was committed, and that drunkenness is given as an excuse or justification. While, as an abstract principle of law, the instruction is correct, yet it has no application to the present case. The drunkenness is not set up as an excuse for a crime, but as a potent or contributing cause of an accident. Unskillfulness is no excuse for the commission of a crime, and yet it may be the cause of accidental homicide. And the same may be said of drunkenness. And the fact that a person may be drunk when he accidentally causes the death of another does not convert such accident into a crime. Under our law, drunkenness is nota felony, but is a mere misdemean- or.
“No. 5. The jury are instructed that if they believe the defendant Frank Cross had formed a willful, deliberate, and premeditated design to kill Mi's. Taylor, and, in pursuance of such design, voluntarily made himself drunk for the purpose of nerving his animal courage for the accom-[257]*257plisbment of such design, and then met Mrs. Taylor when be was so drunk as not then to be able to deliberate on and premeditate the killing, and killed Mrs. Taylor, it is murder in the first degree, and the jury should so find.” This instruction is not only wholly without evidence to justify it, but is given right in the face of the evidence to the contrary.
“No. 6. The jury is instructed that aman is presumed to intend that which he does, or which is the immediate or necessary consequence of his act; and if the prisoner, Frank Cross, with a deadly weapon in his possession, without any, or upon very slight, provocation, killed Ella Taylor, he (the prisoner) is 'prima facie guilty of willful, deliberate, and premeditated killing, and the necessity rests upon him of showing extenuating circumstances; and if the jury believe from the evidence that he has not proven such extenuating circumstances or that such extenuating circumstances do not appear from the case made by the state, they should find him guilty of murder in the first degree.” This instruction is only proper in a case where the killing appears to have been willfully and intentionally done.
“No. 7. The jury are instructed that if they believe from all the evidence in the case that the defendant, Frank Cross, was guilty of the use of a deadly weapon in the killing of Mrs. Ella Taylor, the intent and the malice may both be inferred from such act; and such malice need not have been directed against her alone, but was such as showed a heai’t regardless of social duty, and fatally bent on mischief.” This' instruction was improper, in this case, for the same reason that all the others were improper, and for the further reason that there is no evidence to show that the prisoner had a “heart regardless of social duty, and fatally bent on mischief.” The only evidence even slightly tending in this direction was that the accused sometimes indulged in the use of intoxicating drinks, and this, in the present state of the law and the rules of social duty, would not sustain such instruction.
The court also gave the two following instructions on its own motion:
“Instruction A. You are further instructed that if a person kills another without provocation, and through [258]*258reckless wickedness of heart, but at the time of so doing his condition, from intoxication, is such as to render him incapable'of doing a willful, deliberate, and premeditated act, he is guilty of murder in the second degree. State v. Robinson, 20 W. Va. 713.” There is no evidence justifying this instruction, as the positive evidence does not even tend to show; but rebuts, the allegation of premeditated killing. Nor is the accused shown, to have acted through “reckless wickedness of heart.” It is true that through intoxication or awkwardness, he may have handled the revolver recklessly, and thus been guilty of a great wrong, in accidently killing his sister, yet this can not convert such accident into a willful and premeditated felony. The court can not disregard the evidence, and give abstract instructions as to the law; for in so doing, as in this ease, it may mislead the jury into finding a wholly unjustifiable verdict.
“Instruction B. The jury is further instructed that upon a trial for murder, the use of a deadly weapon being proved, and the prisoner relies upon the defense of accidental killing as an excuse, the burden of showing such excuse is on the prisoner, and to avail him, must prove such defense by a preponderance of the evidence. He may show it by his own evidence, the evidence adduced by the prosecution, the circumstances arising out of the case, or by all of these modes. See State v. Jones, 20 W. Va. 764.” This is a plain misconception of the law by the court. Accidental killing is not such matter of defense as throws on the accused the burden of proving it by a preponderance of evidence. It is the duty of the state to allege and prove lhat the killing, though done with a deadly weapon, was intentional or willful. In the absence of all proof, when the killing is shown to have been willful or intentional the presumption of malice at once arises; but when the evidence, taken as a whole, raises a reasonable doubt in the minds of the jury as to whether the killing was accidental or intentional, they must acquit the accused, for the reason that the state has failed to sustain its case. In other words, “if, on the whole evidence, the jury are left in reasonable doubt as to the intent of the defendant, they can not convict of the crime.” Whart. Cr. Ev. § 764, and note 1. [259]*259The circuit court erroneously put the question of accidental killing in the same category with willful killing, where some matter such as self defense or provocation is asserted by way of mitigation, excuse, or justification. In such cases the burden is on the accused to establish his defense by a preponderance of evidence. But the claim that the killing was accidental goes to the very gist of the charge, and denies all criminal intent, and throws on the prosecution the burden of proving such intent beyond a reasonable doubt. Hence the law as propounded in the cases referred to, of State v. Robinson, 20 W. Va. 713, and State v. Jones Id. 764, is not applicable.
The court having thus misapprehended, misconstrued, and misapplied the law, and thus misled the jury into finding a verdict unsupported by the evidence, the judgment is reversed, the verdict of the jury set aside, and a new trial is awarded.