The evidence proves and tends to prove the following state of facts: The prisoner, William Maier, is twenty three or twenty four years old. Was born at Aalen, Wur-temburg, Germany. Has been in this country about eight years. When about seven or eight years old he was struck on the head by a falling brick, which made him unconscious for a few hours, and left a scar still visible. Lives in Wheeling, and is a baker by trade. Was married to his wife, Marie, in October, 1891. He had a veneral disease. They kepthouse in Wheeling. He seemed to be attached to his wife, ftut for some reason treated her with great harshness, and she threatened to leave him, and on the 5th *766of April, the night of the murder, had packed up her things for that purpose. Told him that she couldn’t live with him, and was going to leave him ; and the pi’isoner said if she didn’t live with him she shouldn’t live with anybody. He would knock a hole in her head with a hatchet. This was on Sunday night.
Katie Yoho, a little sister of Mrs. Maier, eight years of age, was staying with them, and was present, and slept with Mrs. Maier on the night of the murder. Testimony of Katie Yoho is as follows: “Will be eight years old my next birthday. Have been in Wheeling about two weeks. Know William Maier. Knew his wife. She was my sister. She was living here in Wheeling before she died. I don’t know just whereabouts. I was at her house the day before she died. The day before that I was at her house. I had' been at her house about half a week before she was killed. I was there on Sunday and Saturday before she was killed. My sister was at home on Sunday. On Monday she ivas there at the house. She was over at Mrs. Nesbitt’s. She went there Monday morning — Monday eveniug. She came back in aho.ut half an hour after she wept over. • I do not know what time it was. All day Monday she was at her own house. She went, over there a little before the sun went down Monday evening. She came back from Mrs. Nesbitt’s before dark. I went after her. She did not come hack with me, but came about fifteen minutes after I went over. Maier was over in his own house that evening. I was sleeping in the same room with Maier and his wife during the three or four days I was there. It was the hack room; the good room; the room you go into after passing through the kitchen. I slept on the floor. There was no trouble between them during the three or four days I was there. I don’t think anything occurred but what I have told. That evening, before my sister ■went to bed, she came over, and he locked the door, and wouldn’t let her out. She wanted to go over to Aunt Jennie’s for her dress, and Will locked the door, and would not let her out the door. She went back and sat down. A^erwards they went to bed. That is all I know till the shooting was done. I expect it was about nine o’clock when sister went to bed. *767I went at the same time. I slept in bed with her that night. Will did not take oft'his clothes and go to bed too. He lay down on the bed with his clothes on. He did not take his shoes oft'., Sister had all her things put away, and did not want to tear them up to put them out, so she told me to get in the bed that night, and sleep with her. She slept next to the wall. Head of bed was towards west wall. Side was towards the south wall. There was room for a person to go between the bed and the wall. Sister slept on the side next the -vVall. There was no convei’sation between Will and sister after they went to bed. ■ I was not in bed very long before I went to sleep. Was awakened during the night. When I woke up, Will was not in bed. He was down at the bake-shop. He had gone out. He came back about half an hour after he went out. He came into the bedroom. When he came, sister told him to go into the kitchen and make the fire. He went in there, and I guess he was making the fire, and had it all done except striking the match. -He came back in, and she asked him if he had the fire made. He said: ‘Yes, all but striking the match.’ He went into the kitchen, and stayed a little while, and came back, and when he came back he shot. He asked her if she would kiss him, and she said,‘Ho she had a hard washing to do; that she -would kiss him when she got up. He told her he would give her a half a minute to wake, and if she didn’t kiss him it would be the last kissing she would ever do ; and then he shot. The revolver was in his right hand pocket. He held it in his right hand. When she saw the revolver she jumped up. When he pointed the revolver at her she jumped up, and pulled the clothes over her head. He pulled them off her head. She told him not to do that, and she would never give him another cross word. She said, ‘Oh, Will, if you don’t kill me, I will never give you another cross wordand then he shot. When he shot she fell back, and said, ‘Oh !’ -Then he shot at me. There was no light in the room when he fired that shot. He had a match in his hand when he was shooting. He struck the match after he fired the first shot. Held match in his left hand. He hit me in the hand. When he shot at me, I jumped and threw my hand up, and it hit me in *768the hand. Then he ran, I guess, downstairs. Hay still till he got out. Then I jumped up and ran out to the porch, and I thought he was coming back, and I ran in and got under the bed. lie didn’t come back, so I went out and ran up to, Aunt Jennie’s. All that occurred in the house where William Maier lived, in Wheeling, Ohio county, West Virginia. There was a large butcher knife in the house, and sister put it in the fireplace that evening. She said she put it in the fireplace. There was no trouble about that knife as I know of.
Cross-examination by Mr. Atkinson : Lived at Woods-field before coming to Wheeling. Shooting occurred on Tuesday morning, before daylight. There was no trouble between Will and sister that I heard while I was there. When Will returned from the bakery that Monday evening he remained in the house all evening. Did not go out anywhere. Will gave no reason for not taking his clothes off that night. There was no quarreling between them that night. Light had burnt out. Both lamps had burnt out — -one in the kitchen and one in the bedroom. Went to bed in the dark. We all went to bed together. There was no light in the room that evening, as I know of. Could see any one distinctly in the room. The blind was up, and the window was hoisted. There was no light in the room at all that night, only when he shot he lighted two matches. It was dark when he fired the first shot. He lit the match after he fired the first shot. He was standing between the wall and the bed when he shot. I was awake at that time. I had been awake ever since he went out and came back. He had gone up about half an hour before the shooting. I saw him, point the pistol at me. He told me he would kill me. My sister brought that butcher knife into the room. Will and I never had any quarrel. He never abused me, nor threatened me, at anytime. Will had first gone out into the kitchen when I awoke. I could see the revolver, because it was just new and bright. Redirect examination : There was sufficient light in the room to distinguish a person in the room. I didn’t hear anything about her going to leave him, except once. She said she couldn’t live with him, and she was going to leave him. *769Tbat is all she said, and on Sunday evening she packed all her things up. Sister said to Will that she couldn’t live with him that evening before we went to bed. • Maier said if she didn’t live with him she shouldn’t live with anybody. lie would knock a hole in her head with a hatchet. It was that Sunday.” Katie Yoho recalled: “Will had on light clothes the Monday night he went down to the bakery — his working clothes. He and his wife were not talking pleasantly and agreeably before they went to bed that night.”
The prisoner had previously bought a revolver, thirty eight calibre. It was found in the gutter of the street about a quarter after ten o’clock the day after the night Mrs. Maier was killed. The prisoner escaped, and was captured on the eighth day after the killing, was indicted and tided, as already mentioned.
Upon the question of insanity there is no claim that he was insane at the time of the trial, nor is there any evidence tending to prove insanity during the eight years previous to the killing, but the contrary. The prisoner was examined on his own behalf. Stated that he had never felt right since injured on the head by the falling of the brick. As to the killing, he says: “I know I shot, but don’t know what I shot, don’t' know when I shot, don’t know where I was when I shot, don’t know whom I shot.”
Some fourteen or fifteen witnesses were examined on behalf of the prisoner. One said he thought the prisoner very peculiar; a man he would not want to offend or have for an enemy; thought he had a bad temper, but didn’t think he was of unsound mind; but the witnesses who knew him pronounced him sane during the eight years covered by the testimony; also the many experts. Apart from the unnaturalness and enormity of killing his wife under the circumstances already stated, there is no evidence that he was insane except his own statement.
Error is assigned in refusing a continuance. The prisoner, in his affidavit for a continuance, does not give the grounds for his belief that the evidence of the witnesses mentioned as living in Germany can be procured, so that the court may see that the belief is not merely a hope, but *770a well founded, reasonable expectation, that it will be procured. See State v. Harrison, supra p.-(15 S. E. Rep. 982.)
We also know judicially that the term of such court could have lasted until the first Tuesday in June, 1892, but uo further postponement was asked for by the prisoner. The accused had all the witnesses he appears to have desired summoned and examined; and, without opposing testimony, was himself examined as a witness as to all the matters mentioned in his affidavit as ground of continuance.
The statute evidently contemplates a tidal to he had at some time during the term at which the indictment is found, for it says that the accused, if in custody, etc., shall be tried at such term, unless good cause for a continuance be shown. The trial court saw the accused, noted his manner and bearing, was well acquainted with its own docket, the order of business, and the time required for its disposition ; and, “though an appellate court will in this - State and in Virginia supervise the action of an inferior court on amotion for a continuance, it will not reverse a judgment or decree on that ground, unless such action was plainly erroneous, even if the case were a criminal case.” Buster v. Holland, 27 W. Va. 510-534, citing Hewitt v. Com., 17 Gratt. 627. We can not say that the court below plainly erred in refusing to'continue the cause.
Instruction Ho. 1, given on the motion of the State, is point 2 of the syllabus in Robinson’s Case, 20 W. Va. 713, approved in Douglass’s Case, 28 W. Va. 297, and, as it is not insisted in argument that it was error to give it, it need not be discussed.
The second instruction given_on behalf of the State is as follows: “The court instructs the jury that if they believe William Maier murdered Marie Maier, as charged in the indictment, and had at the time sufficient power of mind to distinguish between the right and the wrong of such an act, although they may believe he suffered from mental aberration as to other matters, the verdict ought to be ‘Guilty.’”
This instruction must be read with the charges in the statutory indictment interpolated, not as any abstract doctrine, but as applicable to the particular case which the evi*771dence proves or tends to prove. The criticism made upon this instruction is that the true test is power, not mere knowledge. Had the accused the power to distinguish right from wrong, and the power to adhere to the right and avoid the wrong ? As we read the instruction, it in substance comprehends this power of the will: If the jury believe William Maier willfully and deliberately murdered Marie Maier, and had at the time sufficient power of mind to distinguish between the right and the wrong of such an act. The terms “willfully” and “deliberately” necessarily imply a certain degree of will-power. For a full discussion of the subject, see State v. Harrison, supra p. 729 (15 S. E. Rep. 982.)
If there were any evidence in the case showing or tending to show an irresistible insane impulse, as distinguished from the ordinary case of an impulse not resisted, that the killing was the direct result of the destruction by 'insanity of the power of self-control, then the counsel for the accused should have called on the court for an instruction directed specially to that point. But there is no evidence showing or tending to show any such destruction of the power of self-control, or of insanity of any kind, other than the inference to be drawn from the unnaturalness and enormity of the act itself; nor is there any other evidence in the case tending to show want of any of the mental elements of responsibility except the prisoner’s own statement.
The subject is full of difficulty, and is supposed to be, and should be, confined to the facts of the particular case. If the examination of experts and instructions given are not confined to the case in hand, they would “extend over an almost unlimited field of inquiry, involving a discussion of the laws of insanity in all its complicated and mysterious phases. Their only effect would be to consume the time and attention of the court, and to mislead and confuse the mind of the jury with perplexing discussions upon the symptoms of the various forms of derangement as developed in the human mind.” Staples, Judge, in Dejarnette’s Case, 75 Va. 875.
For a full discussion of the subject, see 2 Steph. Hist. *772Crim. Law, pp. 124-185. The learned judge and writer closes the chapter on the subject as follows : “The importance of the whole discussion as to the precise terms in which the legal doctrine on this subject are to be stated may easily be exaggerated as long as the law is administered by juries. I do not believe it possible for a person who has not given long-sustained attention to the subject to enter into the various controversies which relate to it, and the result is that juries do not understand the sum-mings up which aim at anything elaborate or novel. The impression made on my mind by hearing many — some most distinguished — judges sum up to juries in cases of insanity, by watching the juries to whom I have myself summed up on such occasions, is that they care vei’y little for generalities. In my experience, they are usually reluctant to convict if they look upon the act itself as, upon the whole, a mad one, and to acquit if they think it was an ordinary crime. But their decision between madness and crime turns much more upon the particular circumstances of the case, and the common meaning of words, than upon the theories, legal or medical, which are put before them. It is questionable to me whether a more elaborate inquiry would pi’oduce more substantial justice.”
We are of opinion that there are no errors in the rulings of the trial court, and that the judgment complained of should be affirmed.
AeEIRMED.