I concur in the judgment rendered in the above case, but do not concur in that part of the opinion in relation to the right of the court to deny the instructions as to the different degrees of murder. A court is not bound to give instructions based on a supposed state of proof that does not exist.
A defendant may insist on instructions that are sound law, in the abstract, but unless they have some application to the proof in the case, the court should refuse them as having a tendency to confuse and mislead the jury. In the trial of a prisoner on a charge of murder, and involving the penalty of death, while it is safest to give him the benefit *78of all presumptions, yet if tbe court sees no evidence to reduce tbe grade of tbe offense, it bas tbe right to withhold an instruction which presupposes such testimony. To entitle a defendant to an instruction it must be good law and be based on tbe facts of tbe case also. There is nothing in this case which satisfies me that the court below erred in this particular. The defense made by the testimony as shown by the transcript was one of insanity only, and under that the prisoner was entitled to an acquittal or he was guilty as charged in the indictment. Judging this case from the testimony embodied in the record, I see no reason to think that the court below erred in refusing the instructions.