delivered the opinion of the court,
We find no error in the admission of the evidence referred to in the first assignment. It was a part of the commonwealth’s case to show motive or malice on the part of the prisoner. He was upon trial for the murder of his wife. The evidence leaves no room for doubt that the deceased came to her death by poison, and that the poison was sent to her by the prisoner. Whether it was sent for the purpose of taking her life, or innocently and for a proper purpose, was the main question of fact in the case. It was clearly competent to show the relations between the prisoner and his wife prior and up to the time when she took the poison. The evidence referred to bore upon this point, and although by no means strong, was admissible : Wharton’s Criminal Evidence, § 756 ; Archbold’s Crim. Practice and Pleading, 365 and 382; Hopkins v. Com., 50 Penn. St., 29; Sayres v. Com., 88 Id., 291.
The second assignment does not require discussion. The *305admission of the testimony of Fannie Funk and Margaret Minichan was in the discretion of the court below. It was merely a matter of the order of evidence. The witnesses were called in rebuttal, and,if in point of fact it was not strictly rebuttal, it was as before said, within the discretion of- the court, and not the subject of error. Aside from tliis there does not appear to have been an exception taken in the court below.
Third assignment. It is alleged that the court erred in saying to the jury that “you should be convinced as jurors when you would be convinced as citizens, and jou should doubt as jurors only where you would doubt as men.”
The idea embodied in this language appears to have originated with Chief Justice Gibson, who said in Com. v. Harman, 4 Penn. St. R. at page 273, that a juror “is not at liberty to disbelieve as a juror while he believes as a man.” The learned Chief Justice applied this language to the evidence in the case, and in this connection the remark was entirely proper. In the subsequent case of Fife v. The Com. 29 Penn. St. R., it was held that similar language, although liable to be misunderstood by a jury, is not erroneous as a matter of law. Yet even this ruling, it appears to me, requires some qualification. If it does mislead the jury, or is so used that it is likely to mislead the jury, .we regard it as error. But in the case in hand, as in Com. v. Harman, the language used was used in connection with the evidence. Thus, the learned judge said in the sentence immediately preceding the one assigned as error: “This reasonable doubt is not one the jury will reach out for to relieve them from finding a verdict of guilty, but- such a doubt as is left from the failure of the evidence to convince your minds of the guilt of the defendant.” Undoubtedly, a juror should be convinced/rom the evidence where he would be convinced as a man, and when the language is -applied in this way, we see no technical error. But as was said in Fife v. The Com., supra, it is an expression that is liable to mislead a jury, and for my own part I could wish it had never found its way in the books. Severed from its connection it is easy to see how a jury may be misled. There are many cases in which jurors, as men, may believe a person on trial for a crime to be guilty, when the evidence in the case would not warrant a conviction.
Fourth assignment. We find no error in that portion of the charge embraced in this assignment. The learned judge told the jury that murder by poison was murder of the first degree. In doing so he was merely repeating the Act of Assembly defining the offence. It is true the jury have the power even in cases of murder by poison to convict of a lesser *306grade of crime. So they have the power in such cases to acquit altogether in the face of the clearest evidence. In either case it would be a disregard of their duty and their oaths. If the learned judge had said to the jury as in Rhoads v. Com., 218 Penn. St. R., that they must convict of murder of the first degree or acquit altogether, it would have been error. But he did not. He plainly told the jury what the law was, and then in the last paragraph of his charge said to them: “If you find him guilty of murder you must also say in what degree.” The charge of the learned judge upon this point was not as strong as in the later case of Schaffner v. The Com., 72 Penn. St. R., 60, when the court instructed the jury in a case of murder by poison that “ if you are convinced that he is guilty of the crime, it is murder in the first degree as declared by the Act of Assembly, and it is your duty to say so without regard to the consequences to the prisoner.” This ruling was affirmed in this court in a careful opinion by Mr. Justice Agnew, in which the previous cases of Rhodes v. The Com. and Lane v. The Com. were considered. The distinction is between a proper statement of the law and a binding instruction. The latter is held to be error though the case be never so clear.
Fifth assignment. The substance of this assignment is that the court did not tell the jury “in resolute vigorous language ” that the elements of the crime of murder were wanting.”
We understand this assignment, in connection with the sixth, to mean that the court should have instructed the jury that there was not sufficient evidence of the crime to submit to the jury. We cannot assent to this proposition. While the evidence was purely circumstantial, and perhaps not very strong, the learned judge would have incurred a very serious responsibility in withdrawing it from the jury. We have two facts fully proved. 1st, that the deceased came to her death by poison, and 2d, that the poison was sent to her by the prisoner in an envelope through the mail. If he intended her to take it, and if he deceived her into taking it, he is guilty of murder. Such a fact can rarely be proved by direct evidence. If it may not be proved i\y the circumstances surrounding the transaction, it cannot be proved at all, and men could poison their wives with impunity. Under such circumstances the conduct of the accused at and immediately after the transaction may be given in evidence to show the intent. Was the conduct of the prisoner subsequent to the taking of the poison by his wife consistent with the theory of innocence. It was said by Justice Strong in Cathcart v. Com., 37 Penn. St. R., at page 113 : “ The fabrication of false and contradictory accounts by an accused criminal, for the sake of diverting *307inquiry or casting off suspicion, is a circumstance always indicatory of guilt.” No rule of criminal law is better settled than this. Applying it to this case we find that the evidence on behalf of the commonwealth abounds with false and contradictory accounts given by the prisoner both as to the purchase of the poison and his whereabouts immediately thereafter. For the purposes pf this case we must assume all of this testimony to be true. There was also testimony to the effect that the poison label placed by the druggist upon the article when he sold it could not be found in the house after the death of the deceased, although diligent search had been made for it. If the prisoner removed that label and then sent the poison to his wife no jury would long hesitate about his guilt. It is true the prisoner produced a witness who swore that she found the label and destroyed it. But that was for the jury; as before observed we are considering only the commonwealth’s evidence. Then, if it be true, and we must assume it to be so, that the prisoner told the witness, Dwight Mead, the next morning, that his, prisoner’s wife, was dead, when he had not and could not have received any communication to that effect, it was a circumstance likely, and justly so, to have great weight with the jury, in determining the question of his guilt. Without going into extended detail, we are of opinion that there was that, in the acts and declarations of the prisoner, pointing to his guilt, which no court could properly withdraw from the consideration of the jury
Seventh assignment. The evidence referred to in this assignment was not important, but we are not prepared to say that it was incompetent. We think the learned judge below was correct in saying that it tended to show anxiety in the mind of the prisoner.” It was for the jury to find from what such anxiety arose, under all the peculiar circumstances of this case.
Eighth assignment. This is entirely without merit. Practically considered it amounts to this, that the prisoner’s contradictory statements are not competent evidence against him until his guilt is established by other means.
Ninth assignment. This is purely technical. That it was not error to certify the record of the Quarter Sessions into the Oyer and Terminer, nune pro tunc, is settled by Brown v. Com., 78 Penn. St. R., 122.
Tenth assignment. The court was not requested to charge as stated in this assignment. The omission to charge upon a point to which the attention of the court was not called, and ■ no request made, is not error: Fox v. Fox, 9 Penn. St. R., 60. To have charged as indicated would have withdrawn the case from the jury, and we have said in the discussion of the fifth *308and §5xtb assignments, that there was sufficient evidence to go to the jury.
Judgment affirmed.