dissenting.
2 While I concur in the conclusions reached by Mr. Justice Pope as to all the other grounds of appeal, I cannot agree with him in the view which he takes of the second ground. That ground is taken in these words: “Because the Circuit Judge erred in refusing to charge the jury as requested in defendant’s second request to charge;” and that request was couched in the following language: “While it is true that the defendant is required to prove that he was of unsonnd mind at the time of the homicide by the preponderance of the evidence, it is also true that, upon the consideration of the testimony of the whole case, the State’s as well as the defendant’s, if any reasonable doubt remain in the mind of the jury, the defendant is entitled to a verdict of not guilty.”
An examination of the judge’s charge will show that, after making some general observations designed to direct the minds of the jurors to the distinctions between the different grades of homicide, he took up the several requests to charge, and after reading them to the jury, made such comments upon them as seemed to him proper. But when he read this second request to charge, the idea seems to have occurred to him that he had omitted, in his general observations, a remark which he regarded as appropriate to the case; and, therefore, without sayiug anything at that time in response to the second request, he proceeded to make such general observations which is not *114pertinent to the present iuquiry. Now, if that was all that appears in the charge, in reference to the proposition involved in the second request, I would be inclined to hold, in a case involving such grave consequences as this does, that while the Circuit Judge did nob refuse to charge as requested, his omission to do so, after such request, would be error.
But that is not all that appears in the charge in reference to the proposition involved in the second request; for, after going over the several requests, the Circuit Judge, at the conclusion of his charge, used this language: “Gentlemen, I believe I have gone over this whole case. That question of unsoundness of mind is for you entirely. The defendant is entitled to every reasonable doubt in this case as in all other criminal cases — of every reasonable doubt.” When this language was used to the jury it does not seem to me that they could fail to understand that if upon a review of all the testimony in the case, as well that adduced by the State as that offered by the defendant, they entertained a reasonable doubt as to any material fact in the case, they must give the accused the benefit of such doubt. When, too, it is seen that the defendant’s plea was interposed in these words: “Nob guilty, by reason of unsoundness of mind at the time of homicide;” that a very large portion of the testimony was directed to the issue of insanity, as well as a considerable portion of the judge’s charge, I do not see how it is possible to doubt that the jury were made to understand fully, that if they eutertained a reasonable doubt as to the sanity of the accused at the time the homicide was committed, they were bound to acquit him; and that, as it seems to me, was the whole point of the second request, which was, in my judgment, substantially charged.
It is conceded, as I understand it, and properly conceded, that a Circuit Judge is not bound to charge a request precisely at the time, or in the phraseology in which it is presented; but if it embodies a correct proposition of law, it is quite sufficient if such proposition be presented to the jury at any stage of the charge. Here, when near the conclusion of the charge, the jury were instructed, that the question of insanity “is for you entirely,” and in the same connection, immediately after-*115wards, that “the defendant is entitled to every reasonable doubt in this case as in all other criminal cases — of every reasonable doubt,” it seems to me that the proposition embodied in the second request was much more effectively presented to the jury than if the judge had, upon reading the request, simply said, “I so charge you.”
I am, therefore, of opinion that the judgment of the Circuit Court should be affirmed.
Judgment reversed.