delivered the opinion of the court,
By the 2d sect, of the Act of 10th April 1867, it is made the duty of the jury commissioners, president judges, or additional law judges of the respective district, to meet at the seat of justice of the county, at least thirty days before the first term of the Court of Common Pleas in every year, and select the jurors agreeably to the provisions of said section, who are to serve as jurors in the several courts of such county, during that year. The names of the persons so selected shall be placed by them, or a majority of them, in the proper wheel, in the mode and manner directed by law. The 3d sect, describes how the jury commissioners and sheriff shall draw from the proper jury-wheel the different panels of jurors.
The precepts in this case, and the venires for the grand and petit or traverse jurors, were issued on the 2d April 187 2, and on the 15th of the same month were returned in due form by the sheriff and jury commissioners, by whom the names of the grand and traverse jurors were drawn from the jury-wheel in due form of law. The error assigned in both cases is the same; the clerical error of using the w'ords “ commissioners of said county,” instead of “jury commissioners.” Everything else in the whole proceeding was right, and the alleged error was not discovered until several months after the trial.
These alleged defects or errors are cured by the 53d sect, of the Criminal Procedure Act of the 31st March 1860, which enacts that “ no verdict in any criminal court shall be set aside, nor shall any judgment be arrested or reversed, nor sentence delayed for any defect or error in the praecipe issued from any court, or the venire issued for the summoning and returning of jurors, or any defect or error in drawing or returning any juror or panel of jurors, *212but a trial or agreement to try on the merits, or pleading guilty, or the general issue in any case, shall be a waiver of all error and defects in or relative or appertaining to the said precept, venire, drawing or summoning and returning of jurors.” .
Ambrose E. Lynch was indicted for the murder of William Had-field, on the night of the 12th June 1872, by stabbing him with a knife, and was tried in July of the same year, and convicted of murder in the first degree. The circumstances attending the murder are few, and may be told very briefly. The sister of the plaintiff in error lived in a small house in Allegheny city, of whom the defendant, Lynch, was a guest. Late at night Lynch came in by a side door, and was in only a few minutes when he heard a noise, listened and heard a creaking, took out hjs knife and opened it. He put his shoulder to the door and shoved it; it did not go in the first time; put his shoulder to it the second time and it went in, and he saw his sister getting out of bed. He struck the deceased twice in the back, in the bed, with his knife, and a third time when on the floor in the breast. This last was the mortal wound, of which Hadfield died between twelve and one o’clock the same night. We have omitted the profane and blasphemous language made use of by the defendant Lynch.
We have read over with great care the very able charge of Judge Starrett, who explains very fully to the jury the different degrees of felonious homicide, murder in the first degree, murder in the second degree, voluntary and involuntary manslaughter.
This brings us naturally to a part of the charge following this explanation, which is assigned as the fifth error. It is evident from the language used that the prisoner’s counsel was endeavoring to reduce the crime to that of voluntary manslaughter, with which the court certainly did not agree. “ It is claimed,” says the learned judge, “by the prisoner in this case, that on going'to his sister’s house at a late hour in the night he heard a noise in her room — suspected that something wrong wras going on there— listened awhile, and becoming convinced that his suspicions were well founded, he took out his knife and opened it, put his shoulder to the door, forced it’ in, and found his sister there in her night dress, and the deceased in the room with her ; that he was greatly excited and enraged, and in the heat of passion thus generated, he stabbed the deceased twice in the back and once in the breast. Assuming all this to be true, does it amount in law to sufficient cause of provocation to reduce the killing to manslaughter. We are of opinion that it does not, that there is nothing in these circumstances, as they are claimed to exist' by the prisoner, that ■would reduce the grade of the offence to voluntary manslaughter. It is the duty of the court to say, as matter of law, what fact or facts will amount to sufficient legal provocation if they are found by the jury. In other words, it is for the jury to find what the *213facts are, and for the court to say what effect shall be given them. Assuming, then, the facts to be as claimed by the prisoner in this regard, we say that they do not amount to sufficient or legal provocation, such as would reduce the grade of a felonious homicide to manslaughter.
In all this there was clearly no error.
The third error assigned is to the answer of the court to the defendant’s first point, which was, “ that if on the night of the killing defendant found, or supposed he found, the deceased in bed with defendant’s married sister, and was thereby so much excited as for the time to overwhelm his reason, conscience and judgment, and cause him to act from an uncontrollable and irresistible impulse, the law will not hold him responsible.”
This seems very vague and uncertain, but the court say, “ as the point seems to amount to the proposition, that if the prisoner was temporarily insane at the time he did the cutting, he is not guilty of any legal offence, it is affirmed as an abstract principle of law. If the defendant was actually insane at the time, this of course relieves him from criminal responsibility, from whatever cause the insanity arose. But the jury must not confound anger or wrath with actual insanity ; because, however absurd or unreasonable a man may act when exceedingly angry, either with or without cause, if his reason is not actually dethroned, it is no legal excuse for violation of law.” There is no error in this answer.
The fourth error assigned is to the answer to the defendant’s second point, which is. “ That if the jury have a reasonable doubt as to the condition of defendant’s mind, at the time the act was done, he is entitled to the benefit of such doubt, and they cannot convict.”
As to the second point the court said “ the law of the state is, that where the killing is admitted and insanity or want of legal responsibility is alleged as an excuse, it is the duty of the defendant to satisfy the jury that insanity actually existed at the time of the act, and a doubt as to such insanity will not justify the jury in acquitting upon that ground. The law presumes sanity when an act is done, if no insanity is shown by the evidence, and when it appears a man was sane shortly preceding the act, and shortly after, the presumption of sanity exists at the time of the act, and no jury have a right to assume otherwise, unless evidence in connection with the act convinces them that the defendant was actually insane at the moment the act was committed. This point is refused,” and rightly, and it needs no argument to show that the court were entirely correct in their ruling and answer.
The sixth error is not sustained, for it is clear the ingredients necessary to constitute murder in the first degree were proved to exist, and in determining this to be the case we have reviewed both the law and the evidence.
Sentence affirmed and record remitted.