(after stating the facts.) 1. The defendant assigns as error the action of the court in overruling his motion for a change of venue, and in refusing to allow him to amend the same. The motion appears to have been in proper form, and, besides, defendant did not state in what respect he wished to amend it. This he should have done in order that the court might be advised as to what it had to pass upon. Its materiality could not appear unless the facts upon which it was based were set out.
It was not an abuse of discretion to refuse a petition for a change of venue where the supporting affiants admitted that they had only been in one locality in the county, and did not even know whether the persons with whom they had talked about the case were inhabitants of the county. White v. State, 83 Ark. 36.
2. Defendant objects that the court overruled his motion for a continuance. The motion does not appear in the record, and the presumption is that the action of the court was correct.
3. The defendant assigns as error the refusal of the court to give instructions number one and two asked by him. These instructions were on the subject of permanent insanity as a sufficient excuse for crime. There was no error in this, for there was not sufficient testimony upon which to predicate such instructions. There was no testimony adduced at the trial tending to show permanent insanity. The instructions asked for were therefore abstract.
The refusal to give instructions not applicable to any facts in proof is proper; for such instructions only serve to confuse and mislead the jury. Ark. & La. Ry. Co. v. Stroude, 82 Ark. 127; Beavers v. State, 54 Ark. 336; Terry v. Clark, 77 Ark. 567; Frank v. Dungan, 76 Ark. 599.
The testimony adduced only tended to show insanity at the time of the killing, caused by whisky or drugs, and this phase of the subject was fully covered by the court in its instructions.
4. Defendant assigned as error the refusal of the court to exclude from the jury the remarks made by the prosecuting attorney as follows: “It grieves and shocks us when this is strangers, but think, gentlemen of the jury, think if it was you and your wife made a widow and your children orphans.”
It has been often held that counsel in their argument are not to be held to a bald recital of the evidence, unadorned with any of the embellishments of oratory. The remarks of the prosecuting attorney were evidently made to impress upon the jury the enormity of the offense by personal illustration. It may be said that its effectiveness for the purpose intended has become dulled by constant repetition. In any event the court does not think there was prejudicial error in not excluding the remarks from the jury.
5. Appellant assigns as error the refusal of the court to permit the witness Wilson to answer the following question asked him on cross-examination by the defendant: “Q. Have you stated to different people that you thought he killed the wrong man, that you thought he intended to kill you?” This was not error. The question was not asked for the purpose of impeaching the witness, but was asked for the purpose of ascertaining whether or not the witness believed that defendant intended to kill him, instead of the deceased, and was not competent for that purpose; for the whole defense is predicated upon the idea that defendant was so drunk at the time of the killing that he did not know that he had killed anyone.
6. Appellant contends that the court erred in modifying the 5th instruction asked by him. The modification consisted in not telling the jury that they should consider whether or not he was guilty of manslaughter.
The trial court should in no case indicate an opinion as to what the facts establish; but in properly giving the law the court must of necessity determine whether there is any evidence at all to justify a particular instruction. Jones v. State, 52 Ark. 345; Allison v. State, 74 Ark. 444. Refusal of the court in a prosecution for murder to instruct as to the offense of manslaughter was not error where there was no evidence in the case that would reduce the offense to manslaughter. Dow v. State, 77 Ark. 464. Under the undisputed facts in this case, the defendant was either guilty of wilful and deliberate murder, or was not guilty of any crime, for the reason that he was insane at the time of the killing.
The evidence in the case is sufficient to sustain a verdict of murder in the first degree, and, finding no prejudicial error in the record, the judgment is affirmed.