
    John Robinson v. Commonwealth.
    •Criminal Law — Manslaughter—Instructions.
    One convicted onlj of manslaughter cannot he heard to complain of even an erroneous instruction relating only to the law of murder.
    Malice — Proof of Drunkenness.
    Drunkenness may he proved in a murder case to rehut proof or inference of malice, hut for no other purpose; and where one charged with murder'is convicted only of manslaughter, an offense of which malice is not an ingredient, he is not prejudiced by the refusal of the court to instruct on that subject.
    APPEAL FROM MARION CIRCUIT. COURT.
    November 7, 1878.
   Opinion by

Judge Cofer:

We need not inquire into such of the instructions as relate to the law of murder, as it is not perceived that they could, even if erroneous, have prejudiced the appellant, who was only found guilty of manslaughter.

The killing seems not to have been controverted, and was as■sumed as a fact proven in the case in the instructions asked by the -appellant’s counsel, as well as in those given by the court, and this .^technical error did not prejudice his rights. The indictment charged the appellant with murder only, and did not embrace the special statutory offense defined and denounced by Sec. 2, Art. 4, Chap. 28, General Statutes, page '322. Connor v. Commonwealth, 13 Bush 714. The jury, in finding that the appellant was guilty' of manslaughter, necessarily found the killing was intentional.

Russell & Arritt, for appellant.

Moss, for appellee.

Drunkenness may be proved in a case like this to rebut proof or inference of malice, but for no other purpose. Shannahan v. Commonwealth, 8 Bush 463; Nichols v. Commonwealth, 11 Bush 575. As the appellant was not convicted of an offense of which malice is an ingredient he was not prejudiced by the refusal of the court to instruct on that subject.

The whole law of the case, as far as relates to .the crime of manslaughter, was correctly given, and the judgment is affirmed.  