(dissenting):
In Abbott's Case, 8 W. Va., 741, this Court declared that “previous threats or acts of hostility, however violent they may be, will not justify a person in seeking and slaying his adversary;” and yet this Court now holds that a circuit court dare not say so to a jury. It must not use the language of the syllabus of this Court, declaring a proposition , of law beyond all dispute, lest it intimate that it thought that there was evidence to prove that the prisoner sought the deceased to slay him. We may just aswell say that if the court would g'ive as an instruction section 1, chapter 144, Code, that “murder by poison, lying in wait, imprisonment or starving,” is murder in the first degree, it would be error, as intimating the court’s opinion that poison, lying in wait, imprisonment, or starving was the cause of death. Just as well say that a court cannot instruct that any willful, deliberate, or premeditated killing is murder in the first degree, without intimating the opinion that the killing under trial was such. Just as well say *80that it cannot say that a homicide is prima facie murder in the second degree. Can a court never declare a correct legal proposition, relevant to the case, and then let the jury say whether it suits the case, under the evidence? What jury could be found so ignorant as not to understand that it was for it to consider the evidence, and say whether it showed a casefalling under that legal principle? How, possibly, could this instruction mislead the'jury? It was plainly re velan t. If the evidence tended to' show that Allen wenttothelonely mountain gap, and there, lying in wait, shot Ferguson, did he not seekhis victim to slayhim? There was evidence to show that Allen, long before the killing, declared that he intended to kill Ferguson; that, just before the killing, Allen was seen going towards that gap, and shortly afterwards Ferguson was seen riding towards it, — Allen on foot, having a 32-caliber Winchester rifle; that tracks were found behind a tree in that gap, — the tree within shooting distance of the road, but obscured from it by bushes; that hulls of 32-caliber cartridges were found behind that tree; that Ferguson was found in the gap, pierced by a bullet, and dead, his horse near him, and and horse tracks showed that the horse had jumped aside, — frightened, likely, by the shot; that tracks like those behind the tree were found in a field near by, and down a point where Allen admitted he had passed. All these circumstances, and others which I need not now detail, tended to show that Allen, from sedate malice, sought Ferguson, and lay in wait to slay him. He admitted that he killed Ferguson, but said Ferguson was rushing on him to kill him; but no evidence save his showed this, and the jury found that he killed Ferguson by lying in wait for him in the lonely, secluded mountain pass. I cannot realize why such an instruction, relevant under such evidence, and correct in law, was improper. It is absolutely free from error, and plainly proper. If such an instruction cannot be given, better that the prosecution in every case abstain from all instructions as to the law of the case. The refusal of instruction 4 is no reversible error. I think it good, and that it should have been given, under principles which I stated in Musgraves Case, 43 W. Va., 672, (28 S. E. 813); but instructions 2and 3 given *81at Allen’s instance, and inserted below, covered the whole ground covered by said instruction, and (show that he suffered no harm by its refusal. “Where instructions given clearly and fairly lay down the law of the case, it is not error to refuse other instructions on the same subject.” State v. Bingham, 42 W. Va., 234, (24 S. E. 883). I do^not recall a single case in the books where a conviction of the highest crime, — ’murder by lying in wait, — upon a fair trial, has been held for naught on such light grounds as in this case. The enforcement of the criminal law should not be frustrated, after fair trial, except for causes plainly hurtful to the rights of the accused. I cannot refrain from expressing my strong dissent from the judgment in this case.
Defendant’s instruction No. 2: “The court instructs the jury that the law presumes the prisoner innocent, that this presumption goes with him through the whole trial, that- the burden is upon the State is to prove his guilt to a moral certainty, and that neither a mere preponderance of evidence, nor any weight of preponderant evidence, is sufficient for the purpose, unless it generate full belief of the fact, to the exclusion of every reasonable doubt.”
'J Defendant’s instruction No. 3: “The court instructs the jury that, if the State relies for a conviction in this case upon circumstantial evidence, it is essential that all the circumstances from which the conclusion is to be drawnAhall be established by full proof; and the State is bound to prove every single circumstance which is essential to the conclusion in the same manner, and to the same extent, as if the whole issue had rested upon the proof of each individual and essential circumstance; and such evidence is always insufficient, when, assuming all to be proved which the evidence tends to prove, some other hy-pothes is may still be true, for it is the actual exclusion of every other hypothesis which invests mere circumstances with the force of proof.”
Reversed.