Field, C. J. concurring.
The defendant was convicted of an assault with intent to murder.
I. The first error assigned is, that the proceedings were irregular in this: that the motion for a new trial was passed on by a Court composed of different members from those before whom the trial was had. This fact only appears by the minutes, in which the *429names of the Justices composing the Court on the motion and in the previous stages of the trial are recited. No objection to the hearing of the motion by the Justices then present and acting was made by the prisoner.
We intimated in a previous case the danger of a reversal of a judgment of conviction for this cause, though no express decision was made upon the point. The question has been more fully argued. We think under the circumstances here, that the defendant cannot maintain the error assigned. His failure to object to the Justice not sitting before, was itself a waiver of exception for this cause. The objection does not go to the power of the Justice to act, but is merely in the light of an exception to him because it was more proper that the J ustiee who sat during the trial, and who, therefore, may be supposed to be better acquainted with the history of the case, should pass upon the final motion which involved a review of the previous proceedings. If the defendant was willing that the Justice should sit, he should not be allowed the double advantage of trying his motion before him, and of appealing from the decision if adverse, and also the advantage of contesting the propriety of his sitting. Besides, we think that the rule we have recently laid down in People v. Connor, and other cases, covers this assignment. We there held that the proceedings of the Court of Sessions were to be construed like those of the District Court, and that the same presumptions attach to them as to those of the District Court. If, from resignation or other such cause, one of the Justices after a trial should not be able to sit on the motion for a new trial, unquestionably this would not prevent the matter from being passed upon by another J ustiee acting in the place of the one thus incapacitated. We must presume that a sufficient reason existed to justify this change in the Bench—in other words, that the Court acted properly in the premises, when nothing is shown to the contrary. These remarks are made upon the assumption that the point, in the absence of these matters of explanation, is well taken. But upon a reconsideration of the subject we are not disposed so to hold. We think that the ends of justice might generally be better subserved if all the members of the Court who heard the case on the trial should sit on the motion for a new trial; but this *430is not a statutory right or obligation; and it would be going too far if we were to avoid the action of a Court legally constituted, and having full jurisdiction of the subject, merely upon the suggestion that it was not so constituted as to the particular members as more probably to insure an intelligent and satisfactory decision. Cases might arise where this point alone, or in connection with other matters, would entitle a party to a new trial, or to a hearing of his motion before the Justices presiding on the trial; but in the absence of a showing of some special cause, we think this single circumstance does not constitute a ground of reversal of the judgment.
II. The next point is, that the Court erred in refusing an instruction in these words: “ If the defendant believed that Gardiner had seduced his wife, and such belief was the result of the deprivation of the reasoning faculties, and also believed that he would be justified in shooting Gardiner, he is entitled to such a verdict as will transfer him from the category of sane to insane criminals.”
The Court instructed very favorably for the accused, even to the extent of charging them “ that if the jury have a reasonable doubt from the evidence as to whether the defendant, at the time of the shooting, was acting under such an insane impulse that for the-time deprived him of his reason, so that he did not know right from wrong, they will acquit.” While we have held that the refusal of a Court to give a proper instruction is error, notwithstanding the Court has charged the same proposition in substance, unless it informs the jury that the refusal is for this cause, yet we have also held that the instruction so asked must be free from objection. It must not be ambiguous or obscure, or calculated to mislead or confuse the jury. We think this instruction is of that character. The jury are not supposed to be lawyers ; and they may very well have been puzzled to know what sort of “ a verdict would transfer a prisoner from the category of sane to insane criminals.” To justify us in reversing a judgment because an instruction, given already in substance, has not been repeated, the language of it should be clear and explicit, and leave no room for doubt or misconstruction.
III. The third assignment is, that the Court erred in charging the jury, “ that the true test of insanity is, whether the accused at *431the time of the commission of the crime .was conscious that he was doing what he ought not to do.”
We see no error in this charge. It is supported by many authorities, and we think it is correct in principle. They are collected in Wharton’s Cr. Law, 43 to 46.
It is further assigned for error that the Court instructed the jury, if the defendant was not insane at the time of the shooting, they ought to find him guilty as charged in the indictment. The objection is, that this charge precluded the jury from finding a verdict for a lesser offense than that in the indictment. But the charge must be taken in connection with the facts. It is stated in the bill of exceptions, “ that the defendant admitted the shooting as charged, and that it was done under circumstances that would have constituted murder if the defense set up is not good.” The admission seems to have been made on the trial, and as part of the proofs. Taking the whole admission together, -we see no difficulty in interpreting its meaning; and we think it clear that the Court had a right to assume the facts as therein admitted to be true. The charge, therefore, is unexceptionable.
The last exception is, that the facts do not warrant the verdict. But we cannot give conclusive effect to the circumstantial matter set up here as evidence of insanity.
Judgment affirmed.