
    William H. Boles vs. The State of Mississippi.
    On the trial of a prisoner indicted for murder, the prisoner’s counsel asked the court to instruct the jury, “ that unless they find from the evidence that the prisoner, with a premeditated design, or in some act dangerous to others, evincing a depraved mind regardless of human life, killed the deceased, they cannot find a verdict of guilty for murder; ” this charge was refused : Held, that the instruction being couched in the language of the statute, was improperly refused.
    Nor was the error refusing it cured by the fact, that the court below had, at the instance of the state, instructed the jury that if they believed the act of killing was committed without sufficient legal provocation, and without reasonable ground to believe himself in imminent danger of death, or great bodily harm, they must find the prisoner guilty of murder.
    In criminal trials, the circuit judge is not bound to give or refuse the instructions asked by counsel on either side, in the precise terms in which they are framed. He may modify the charges asked on both sides, so as to make them conformable to his own views of the law.
    In error from the circuit court of Warren county; Hon. George Coalter, judge.
    The grand jury of Warren county indicted William H. Boles for the crime of murder of one Donohoo, whose Christian name was unknown to them. The killing is alleged in the indictment to have taken place on the 19th of September, 1846.
    The indictment was presented on the 17th day of October, 1846, and on the same day the prisoner was arraigned and pleaded not guilty ; and a special venire of fifty ordered returnable on the 30th day of the same month. At that time, the cause was continued to the next term on the prisoner’s affidavit. At the April term, 1847, a special venire of fifty men was ordered returnable to the 29th of April.
    On the first of May the prisoner was tried and found “ guilty in manner and form as in the indictment against him is alleged.” The prisoner moved for a new trial; 1, Because the court overruled a challenge for cause to a juror ; 2, it erred in the instructions to the jury; 3, the verdict was against the testimony. The court overruled the motion, and sentenced him to be hung on the 26th of June, between the hours of two and four, P. M.
    Four bills of exceptions were sealed; of which it is only necessary to notice the second and third; as the points arising on the others were not passed upon by the court.
    The second bill recites that the court below, on motion of the district attorney, instructed the jury, 1. “ If they believe that at the moment Boles killed the deceased, there was no reasonable ground to apprehend danger to his life or great bodily harm, and no provocation sufficient to reduce the crime of killing, they must find the defendant guilty of murder.” And 2. “It is not necessary for the jury to believe that the defendant previously harbored the design to kill the deceased; if he killed him even upon a sudden passion, without provocation such as the law recognizes as sufficient to palliate the crime of killing, and without reasonable ground to believe his life in imminent danger, or in imminent danger of great bodily harm, they must find the defendant guilty of murder.” To these opinions exceptions were taken.
    The third bill of exceptions recites that the defendant’s counsel asked the court to instruct the jury, “ that unless the jury find from the evidence that Boles, with a premeditated design, or in some act dangerous to others, evincing a depraved mind, regardless of human life, killed Donahoo, they cannot find a verdict of guilty for murder.” And also, “ that if the jury believe from the evidence, the killing took place subsequent to the time stated in the bill of indictment, they should acquit the defendant.” These instructions were refused, and exceptions taken.
    The fourth bill of exceptions details the testimony, which if is not deemed requisite to set out.
    The prisoner prosecuted this writ of error.
    
      
      W. C. Smedes, for the prisoner,
    after discussing the points arising under the first bill of exceptions, contended,
    1. The first instruction asked for by the state is erroneous. 1st. Because it does not provide that reasonable ground applies to the prisoner’s apprehension only, and not the abstract and absolute existence of ground of apprehension. Where there is in truth no real danger, there may be great apparent danger. There may in reality be no reasonable ground to apprehend danger, and yet to the prisoner’s view the ground of apprehension might have appeared highly reasonable. Selfridge’s Trial, 160-164; 1 Russ, on Crimes, 414; State v. Roberts, 1 Hawk. N. C. Rep. 350; Grainger's Case, 5 Yerg. 2d. It leaves the question of provocation to the jury as to its sufficiency, without explaining what is sufficient provocation. Malice is always a question for the court, and not for the jury; the facts being found, it is for the court to say whether the killing was malicious. Oneby's Case, 2 Lord Raym. 1494; Holloway's Case, Palm. 545; Cro. Car. 131; W. Jones, 198; Rowley's Case, Cro. Jac. 266. So the court is to say from the facts, whether the act was done with deliberation or passion. Burr. 474, 896, 937; 1 T. R. 168, 169, 171; 3 Ibid. 428. The court ought to have told the jury what constituted provocation. 3d. The language of the court was obnoxious in saying, the jury must, rather than ought to find the defendant guilty. 4th. It is too rigid in limiting, as it does, the existence of reasonable ground and provocation, both to the moment Boles killed the deceased. However imminent the danger, or violent the provocation immediately previous, it is no palliation, no excuse.
    2. 1st. The second instruction given for the state, if good at common law, is in direct conflict with our statute. H. & H. 691, which distributes the offence of killing into divisions, which, whether expedient and reasonable or not, is still the result of positive enactment, and if in conflict with the common law, must prevail. Under that statute, sec. 4, murder can only exist in one of three cases; the first of which is the only one that has any bearing on this case, and is this: “When perpetrated from a premeditated design to effect the death of the person killed, or of any human being.” The instruction says it is murder even if he harbored no design to kill the deceased, but did it upon a sudden provocation. Our statute seems to alter the common law in this; that every killing done upon a sudden passion is not murder, but is manslaughter in one of its degrees. A killing on sudden passion, is clearly not.with premeditated design. 2d. This instruction, like the first, does not limit the apprehension to the mind of the prisoner. 3d. It is equally imperative in its command to the jury. 4th. It leaves the question of provocation to the jury, as to its nature and what it is. 5th. It is subject to a criticism, which, though perhaps verbal and refined, yet in a case of this nature must not be omitted. The disjunctive “or” in the latter part of the sentence, cannot mean to connect with the phrase “ believe his life in imminent danger; ” for a life cannot be in imminent danger of great bodily harm ; it is, therefore, an independent proposition, and involves the position that, unless the prisoner was actually in imminent danger, whether he thought himself so or not, he is not excused; a proposition universally condemned.
    3. The first instruction asked for the prisoner is in the words of our statute, and was refused. If given, it would have relieved the case from the errors into which the instructions given for the state involved it. Why refused, except that the judge did not think the statute in force, is hard to tell. It is either in force or not; if in force, the instruction apposite to the case should have been given. If not in force, some reason ought to be suggested why it is not.
    Freeman, attorney-general, for the state,
    Argued the case orally in reply, and cited 1 Chitt. Cr. Law, 656, 657; 2 Dallas, 515 ; 18 Johns. R. 212; 2 Russ. Cr. 405 ; McDaniel v. The State, 8 S. & M. 401.
    
      Graybill, for the prisoner, in reply to the attorney-general,
    Insisted, 1. That the instructions given on behalf of the state were not in accordance with the law. II. & H. 691, <§> 4; 694, § 1; 696, § 79.
    
      2. That the instructions refused as asked for by the prisoner, should have been given, for they were strictly in accordance with the statute.
   Mr. Justice Clayton

delivered the opinion of the court.

This was a conviction for murder in the circuit court of Warren county. The case comes to this court for various alleged errors ; it will not be necessary to notice all of these.

On the trial, the court at the request of the district attorney, gave the following charges to the jury:

1. If they believe that, at the moment Boles killed the deceased, there was no reasonable ground to apprehend danger to his life, or great bodily harm, and no provocation sufficient to reduce the crime of killing, they must find the defendant guilty of murder.”
2. “ It is not necessary for the jury to believe that the defendant previously harbored the design to kill the deceased, if he killed him even upon a sudden passion, without provocation such as the law recognizes as sufficient to palliate the crime of killing, and without reasonable ground to believe his life in imminent danger, or in imminent danger of great bodily harm, they must find the defendant guilty of murder.”

The counsel for the prisoner then asked the court to charge the jury, “ that unless the jury find from the evidence, that Boles with a premeditated design, or in some act dangerous to others, evincing a depraved mind, regardless of human life, killed Donahoo, they cannot find a verdict of guilty for murder.”

The charges asked and given upon the part of the state, were intended to show, that the killing in this instance, was not a case either of justifiable or excusable homicide. The charge asked by the counsel of the prisoner was intended to show, what was necessary to constitute the crime of murder. It was couched in the language of the statute, and was improperly refused. On a trial for murder, it was certainly material to instruct the jury, what under the law constituted murder. They could then have applied the law to the facts. If any explanation were necessary, it might have been made.

The circuit judge in such case, is not bound to give or refuse the instructions in the precise terms asked by counsel on either side. He may modify the charges asked on both sides, so as to make them conformable to his own views of the law. They will thus be presented in a consistent form, and rendered.more intelligible to the jury.

For this error the cause will be reversed, and a . new trial granted.  