dissenting. I am in grave doubt but that the learned trial judge should have given in charge to the jury the law of involuntary manslaughter as applicable to the evidence óf the leading witness for the State himself. I recognize fully that every person is presumed to intend the legitimate consequences of his own act, and I am in full accord with the numerous decisions of this court in which it has been held that murder' will not be reduced to involuntary manslaughter, where death has resulted, under the pretense that the intention of the assailant was merely to wound. In this case, however, the State’s witness testifies that he was eighty-five yards from the deceased at the time that he shot. The weapon was a shotgun. His intention was not to wound or cripple, but merely to sprinkle. Without going into the details of the testimony it would seem that it was a jury question; that the intention of the accused was a jury question not solvable by the court.
I dissent from the ruling of the court as set forth in the first division of the opinion. It seems from the record that counsel for the defendant in their argument had referred to a previous trial, which was highly improper, and would have authorized interference *604on the part of the court. In referring to this the court said: “I call your attention to the point mentioned by counsel for the defendant to the jury, that this defendant has been previously tried, and the record now appears on the indictment. He said the verdict had been set aside. I will state that I granted the defendant a new trial on account of an error I made in instructing the jury.” There is a powerful negative pregnant, in this statement from the bench to an intelligent jury in the box, that it was solely on account of an error which the court confessed, he had made in the instructions that a new trial had been accorded the defendant at all. This statement, which I assume to be error, may not have been material in the present case; but I am unwilling to commit myself to such practice generally and for all cases. I care not that the court concluded, “You are not concerned by any other trial, and you are not to be influenced by anything that occurred as to the granting of a new trial.” The human mind is so constituted that it is indeed very difficult for it to discriminate between cautions which may appear to the jury to be merely perfunctory and the main point in the case, which is the consideration of the evidence. I think that it is at least likely that the jury were influenced by what would necessarily appear to be the opinion of the judge as to the evidence. If more had been said, perhaps the error might have been amended.
In my opinion the statement of a trial judge, in the presence and hearing of a jury passing upon the case of one who is for the second time being tried for a criminal offense, where a new trial had been granted the prisoner by the trial judge, which embodied the following instruction: “I call your attention to the point mentioned by the counsel for the defendant to the jury, that this defendant has been previously tried, and the record now appears on the indictment. He said that the verdict had been set aside. I will state that I granted the defendant a new trial on account of an error I made in instructing the jury,” would naturally tend to impress the jury with the conclusion that «the judge was perfectly satisfied with the evidence of the guilt of the accused; that he granted the new trial only because of what he conceived to be his error in the instructions upon the former trial. The remark, thus construed, as I am led by my experience to believe, would be the construction most naturally placed upon it by the jury. This in*605stmction to the jury, in my opinion, amounted to such an expression as to the credibility, weight, and sufficiency of the evidence as is violative of the provisions of section 4863 of the Code of 1910. The provisions of this section are mandatory in the requirement that a new trial shall be granted; and therefore, regardless of any of the other assignments -of error, I am compelled to dissent from the judgment of my associates. It is true that the judge added to the instruction already quoted a caution as follows: “You are not concerned with any other trial, and you are not to be influenced by anything that occurred as to the granting of the new trial,” but it is very plain to me that this amounted to nothing more than a statement that the jury were not to be influenced by the court's opinion of the evidence or the reasons that influenced him in granting a new trial. The virus prohibited by law had been injected. The jurors could but infer that the evidence was satisfactory and sufficient. This intimation, no doubt unintentional, the court was not permitted to make even in a whisper, and the caution that they should not be influenced in the respect referred to by the court was a salve insufficient to cure the wound inflicted upon the defendant in giving superadded weight to the testimbny adverse to his defense.