FjREEMAN, J.,
delivered the opinion of the court.
The defendant was indicted for killing Alfred Register on November 24, 1881, by shooting him with a pistol. He plead not guilty, and was convicted by a jury of murder in the first degree, the jury finding, however, mitigating circumstances, and the court acting on this, he was sentenced to imprisonment in the penitentiary for life. He has appealed in error to this court.
Several errors are assigned. The material ones we .proceed to dispose of.
Objection is taken to the form of the oath administered to the jury. In the entry reciting the swearing of the jury, when empanneled, the oath is: “who being elected, tried and sworn to well and truly try The issue joined.” But we find in the entry containing the verdict, after giving the names of the jurymen, it is recited, “who having been duly empan-neled, elected, sworn and charged well and truly to try the issues joined in this cause, and the truth to speak, and a true deliverance on their oaths do say,” etc. If the first recital was defective, the latter recital is full enough to cure the supposed defect. The latter entry is as much a part of the record as the first, and has the same verity, the whole record must be taken to show correctly the history of what occurred on the trial.
The evidence unquestionably sustains the verdict of the jury as to the killing and degree of guilt. It may well be doubted whether there is any thing on [180]*180which to base the finding “of mitigating circumstances,” unless it be the fact that the defendant was but a youth, probably not more than seventeen years of age at the time.
The facts are, that deceased, who was a brother-in-law of defendant, lived at the house of his father-in-law, or was staying there with his family, in Carroll county. The day before the killing they started' to Benton county to rent land. They returned through Camden, the county seat of Benton, on their way home, and about three miles west of that place they seemed to have turned out of the main road, along a blind path that led to the top of a hill, the top being the head of a hollow descending the opposite way from the main road, to, feed their mules, each riding one of these animals. The path gave out at top of the hill, the parties went over the top of the hill, as far down the descent as they could well get,, stopped, fed the mules on fodder, and evidently had lain down behind the shelter of the hill to rest while the mules fed, the day being a cold one. The testimony would show that the deceased was lying with his feet down the hill, his hat on, a handkerchief partly over his lower face, and around his ueck, and probably asleep. The defendant, from the print of his body on the leaves, had laid down by his side, within reach of him, with his head a little higher up the hill than deceased, his body angling from him. In this position he evidently shot the deceased on the top of the head, a little to the right of the center of the head, and a little back from the top; the ball, [181]*181says the physician who examined the body, and got it out, ranging a little to the right — the prisoner being to the left of Register. That this is the history of the transaction there can be no doubt. ' The place was a most retired one; there was no sign of a struggle, nor in fact, as we think, of any violence on the body,, except the pistol shot. The deceased was found a few minutes afterwards lying in the position ■indicated, his feet crossed, his hat partly on his head, a pistol ball through it, going into his head, his right hand in his pocket, his left extended by his side. He ■evidently had not moved after the shot.
The two parties who found him, had gone out to hunt sheep, were in the road about 150 yards from the place when the shot was fired. They supposed it was some neighbor hunting, and turned out of the road, and went in direction of the sound, and when they got in twenty or thirty steps of the place defendant was seen near the body, the mules with bits out of their mouths hitched to trees hard by. They asked where his game was? He said his brother-in-law had shot himself; that he was very sorry; he would get whisky in Camden; and that he was going to get a wagon to carry the body on, moving in a hurry to the mules, fixing the bridles, then leading them on towards the road, the two men following and talking to him. He was told Mrs. Watkins lived at next house, about three-fourths of a mile, and had wagon and team he could get. He mounted one mule, drove the other before him, started down the road, going towards home, increasing his speed until he got [182]*182into a gallop, and so went out of sight. The parties followed, and found he had not stopped at Watkins nor at next hoyse. He was pursued, found not to be at his father’s after night, but was arrested at Huntingdon, Carroll county, that night, a ticket having been procured for Union City, one having been bought for some point in Missouri. He got on the train secretly, • after it was in motion, getting into-baggage car.
From this summary, it is clear, there is no room for the theory .that the case is one where the killing-alone is proven, with a deadly weapon, but nothing-shown as to the circumstances, in which case the verdict should have been only murder in the second degree, there being no evidence of premeditation and' deliberation, the essential elements of the first degree..
The facts show beyond question the murder was-done deliberately, and the shot fired with the certain intent it should produce death. The position of the-dead man shows there was no altercation, as he lay in an attitude of repose. He was unarmed when, found. It is shown by the statement of the prisoner, when he was arrested, that the wound was inflicted by a pistol, not a short one, for prisoner had one of that kind on when arrested, and on being arrested,. and on being asked if that was the pistol the-man was killed with, said no, it was a longer one. It is almost, if not quite, physically impossible that the party could have shot himself even with a short pistol, lying as he was, as he was shot. The right hand, with which he would have shot, was in his-[183]*183pocket; it would have been still more difficult with the left hand, unless he was left handed, which is not shown, and besides that hand was extended by his side. The hat being on his head would add to the difficulty of his shooting himself. Other reasons might be given, but this suffices to show that what we have assumed as the facts of the transaction is beyond question.
Evidence is introduced from the sisters and members of the family tending to show several previous threats to kill defendant on the part, of deceased. These come in a very questionable shape, and some are incredible. For instance, one sister, Jane Hargrove, swears be got his pistol the morning they started to Benton county, and said he “intended to kill prisoner beiore he come back, and go to Utah.” She says, on cross-examination, that her brother was in the house at the time, and she never told him of it. This is incredible, that a sister, a woman of twenty four years of age, should hear such a threat, and see her young brother start off under such circumstances, and not warn him of his danger. We don’t believe it, as the jury evidently have not. ’
Mary Register, the widow of deceased, and another sister, proved similar ‘threats, and that her husband prevented her telling her brother. It was then proposed to prove that when she spoke of telling him, her husband knocked her down, kicked and abused her, pulling her hair.
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FjREEMAN, J.,
delivered the opinion of the court.
The defendant was indicted for killing Alfred Register on November 24, 1881, by shooting him with a pistol. He plead not guilty, and was convicted by a jury of murder in the first degree, the jury finding, however, mitigating circumstances, and the court acting on this, he was sentenced to imprisonment in the penitentiary for life. He has appealed in error to this court.
Several errors are assigned. The material ones we .proceed to dispose of.
Objection is taken to the form of the oath administered to the jury. In the entry reciting the swearing of the jury, when empanneled, the oath is: “who being elected, tried and sworn to well and truly try The issue joined.” But we find in the entry containing the verdict, after giving the names of the jurymen, it is recited, “who having been duly empan-neled, elected, sworn and charged well and truly to try the issues joined in this cause, and the truth to speak, and a true deliverance on their oaths do say,” etc. If the first recital was defective, the latter recital is full enough to cure the supposed defect. The latter entry is as much a part of the record as the first, and has the same verity, the whole record must be taken to show correctly the history of what occurred on the trial.
The evidence unquestionably sustains the verdict of the jury as to the killing and degree of guilt. It may well be doubted whether there is any thing on [180]*180which to base the finding “of mitigating circumstances,” unless it be the fact that the defendant was but a youth, probably not more than seventeen years of age at the time.
The facts are, that deceased, who was a brother-in-law of defendant, lived at the house of his father-in-law, or was staying there with his family, in Carroll county. The day before the killing they started' to Benton county to rent land. They returned through Camden, the county seat of Benton, on their way home, and about three miles west of that place they seemed to have turned out of the main road, along a blind path that led to the top of a hill, the top being the head of a hollow descending the opposite way from the main road, to, feed their mules, each riding one of these animals. The path gave out at top of the hill, the parties went over the top of the hill, as far down the descent as they could well get,, stopped, fed the mules on fodder, and evidently had lain down behind the shelter of the hill to rest while the mules fed, the day being a cold one. The testimony would show that the deceased was lying with his feet down the hill, his hat on, a handkerchief partly over his lower face, and around his ueck, and probably asleep. The defendant, from the print of his body on the leaves, had laid down by his side, within reach of him, with his head a little higher up the hill than deceased, his body angling from him. In this position he evidently shot the deceased on the top of the head, a little to the right of the center of the head, and a little back from the top; the ball, [181]*181says the physician who examined the body, and got it out, ranging a little to the right — the prisoner being to the left of Register. That this is the history of the transaction there can be no doubt. ' The place was a most retired one; there was no sign of a struggle, nor in fact, as we think, of any violence on the body,, except the pistol shot. The deceased was found a few minutes afterwards lying in the position ■indicated, his feet crossed, his hat partly on his head, a pistol ball through it, going into his head, his right hand in his pocket, his left extended by his side. He ■evidently had not moved after the shot.
The two parties who found him, had gone out to hunt sheep, were in the road about 150 yards from the place when the shot was fired. They supposed it was some neighbor hunting, and turned out of the road, and went in direction of the sound, and when they got in twenty or thirty steps of the place defendant was seen near the body, the mules with bits out of their mouths hitched to trees hard by. They asked where his game was? He said his brother-in-law had shot himself; that he was very sorry; he would get whisky in Camden; and that he was going to get a wagon to carry the body on, moving in a hurry to the mules, fixing the bridles, then leading them on towards the road, the two men following and talking to him. He was told Mrs. Watkins lived at next house, about three-fourths of a mile, and had wagon and team he could get. He mounted one mule, drove the other before him, started down the road, going towards home, increasing his speed until he got [182]*182into a gallop, and so went out of sight. The parties followed, and found he had not stopped at Watkins nor at next hoyse. He was pursued, found not to be at his father’s after night, but was arrested at Huntingdon, Carroll county, that night, a ticket having been procured for Union City, one having been bought for some point in Missouri. He got on the train secretly, • after it was in motion, getting into-baggage car.
From this summary, it is clear, there is no room for the theory .that the case is one where the killing-alone is proven, with a deadly weapon, but nothing-shown as to the circumstances, in which case the verdict should have been only murder in the second degree, there being no evidence of premeditation and' deliberation, the essential elements of the first degree..
The facts show beyond question the murder was-done deliberately, and the shot fired with the certain intent it should produce death. The position of the-dead man shows there was no altercation, as he lay in an attitude of repose. He was unarmed when, found. It is shown by the statement of the prisoner, when he was arrested, that the wound was inflicted by a pistol, not a short one, for prisoner had one of that kind on when arrested, and on being arrested,. and on being asked if that was the pistol the-man was killed with, said no, it was a longer one. It is almost, if not quite, physically impossible that the party could have shot himself even with a short pistol, lying as he was, as he was shot. The right hand, with which he would have shot, was in his-[183]*183pocket; it would have been still more difficult with the left hand, unless he was left handed, which is not shown, and besides that hand was extended by his side. The hat being on his head would add to the difficulty of his shooting himself. Other reasons might be given, but this suffices to show that what we have assumed as the facts of the transaction is beyond question.
Evidence is introduced from the sisters and members of the family tending to show several previous threats to kill defendant on the part, of deceased. These come in a very questionable shape, and some are incredible. For instance, one sister, Jane Hargrove, swears be got his pistol the morning they started to Benton county, and said he “intended to kill prisoner beiore he come back, and go to Utah.” She says, on cross-examination, that her brother was in the house at the time, and she never told him of it. This is incredible, that a sister, a woman of twenty four years of age, should hear such a threat, and see her young brother start off under such circumstances, and not warn him of his danger. We don’t believe it, as the jury evidently have not. ’
Mary Register, the widow of deceased, and another sister, proved similar ‘threats, and that her husband prevented her telling her brother. It was then proposed to prove that when she spoke of telling him, her husband knocked her down, kicked and abused her, pulling her hair. These acts of violence were not permitted to go to the jury, and exception taken to refusal. While it might not have been error to [184]*184have permitted them, we do not think there is any reversible error in refusing to do so. The fact that he prevented her telling was admitted; violence done to his wife because she had proposed to tell her brother would not have served 'to add any thing to the force of the fact in this case. We may add, we think it incredible that such thing occurred at all.
Numerous requests were presented by the defendant’s counsel, and court asked to give them to the jury. All were so given except the first and fourth. The fourth was on the subject of reasonable doubt, which the court declined, because sufficiently stated in main charge. In this he was correct.
The first was a request that the court should charge as to the offense of manslaughter, giving the definitions of this offense in both its grades. The court said: “ The proposition is technically correct, but I decline to charge the offense of voluntary manslaughter asked, because the court is of the opinion the facts in the case do not raise that proposition of law, and for that reason decline to instruct the jury that the proposition is the law of the case.”
If the rule, as stated by the learned judge delivering the opinion of the court in the case of Good v. The State, 1 Lea, 294, be held applicable to this case, his Honor was correct.
A majority of the court are of opinion the rule referred to is one that ought to be adhered to by this court, and where the court can see the prisoner has not been legally injured by the failure to charge on all the- grades of crime involved in the indictment, that such failure is not reversible error. This is the [185]*185principle of the Good cape. It is, however, as the •court holds proper, when requested, that circuit and -criminál judges should so charge, and the practice of refusing on the part of such judges is reprehended. It is easily done, and if the facts do not make out :a case of lower grade of crime, under clear and proper instructions by the court, no harm is likely to result from what in such a case would be a mere abstract statement of a definition of the other grades of offense included in the indictment.
I am compelled to differ with my brother judges ■on the last point, deeming the act of 1877 imperative. The result is the judgment is affirmed.