dissenting:
The sole ground on which the majority of this Court reverses the judgment is that the circuit court committed reversible error in giving an incorrect instruction which related to the offense of malicious wounding for which defendant was indicted. The defendant was acquitted of that offense but was convicted of the lesser offense of unlawful wounding. In my opinion the action of the circuit court in giving the instruction was not prejudicial to the defendant, and for that reason I dissent from the holding of the majority in reversing the judgment of that court.
This Court has repeatedly held in its recent decisions that in a case in which a conviction for a lower degree of an offense is sustained by the evidence an erroneous instruction relating to an offense of a higher degree is immaterial and does not constitute reversible error. State v. Johnson, 108 W. Va. 630, 152 S. E. 203; State v. Toler, 129 W. Va. 575, 41 S. E. 2d 850; State v. Barker, 128 W. Va. 744, 38 S. E. 2d 346; State v. Bowles, 117 W. Va. 217, 185 S. E. 205; State v. Stanley, 112 W. Va. 310, 164 S. E. 254. The majority opinion cites each of these cases and refers particularly to the case of State v. Johnson, 108 W. Va. 630, 152 S. E. 203. It also cites *47and comments upon the case of State v. Bowles, 109 W. Va. 174, 153 S. E. 308, in which, as here, the defendant, upon an indictment for malicious wounding, was acquitted of that offense but convicted of the lessor offense of unlawful wounding- and in which this Court held that the refusal to give an instruction relating to malicious wounding did not prejudice the defendant because the verdict of the jury acquitted him of that offense. The majority opinion, though omitting to do so, might well have cited also the cases of State v. Jones, 128 W. Va. 496, 37 S. E. 2d 103; State v. McLane, 126 W. Va. 219, 27 S. E. 2d 604; and State v. Gunter, 123 W. Va. 569, 17 S. E. 2d 46; in all of which the foregoing rule was recognized and applied. The majority opinion also recognizes the existence of the rule and its application in each of the cases which it cites in connection with the rule. The opinion, however, instead of applying the rule which it expressly recognizes in this case, engages in a labored and, in my opinion, an unsuccessful effort to distinguish the cited cases from the case at bar. In so doing it makes a substantial departure from the rule, creates an unsatisfactory and equivocal exception to it, and renders its application in any particular case questionable to the extent that it is in effect destroyed as a practical rule of law. • In my judgment the rule should be applied in all cases which come within it or it should be rejected in its entirety and not applied in any such case. To apply it in one case and to refuse to apply it in another similar case merely adds to the existing uncertainty in the administration of justice in the disposition of cases which has engendered criticism of our system of criminal law.
As I understand the rule, it is based on the unquestioned assumption that the instruction dealing with a higher degree of an offense contains error which would be prejudicial if the defendant were convicted of that offense but that the error, regardless of its character or degree, is not prejudicial if the defendant is acquitted of a higher degree, but is convicted of a lower degree, *48of the offense. One of the reasons for the rule is .that it may be fairly presumed that in a criminal case based upon an indictment for an offense of a higher degree in which an erroneous instruction upon such offense is given, and in which the defendant is acquitted of that offense but is convicted of an offense of a lower degree, the jury disregards such instruction in its entirety and, by its verdict of acquittal of the offense of a higher degree, indicates clearly that, regardless of the character of the error in the instruction, the jury was in no wise influenced by any statement embraced within it. If that be so, as I think it is, the rule should be applied in the instant case.
The majority seeks to justify its holding that the action of the trial court in giving the instruction, designated as State’s Instruction No. 5, as amended, constituted prejudicial error because, by certain statements in the instruction, it submitted to the jury the questions whether defendant was a trespasser and whether he had the right to go upon the land of the prosecuting witness to investigate apparent violations of law which were questions of law. Those statements in the instruction, of course, dealt with and were limited to the offense of malicious wounding. The nature or the degree of the error in the instruction is in my judgment of no consequence and the action of the majority in regarding that particular error as prejudicial seems to me to be entirely unwarranted. It is also contrary to the reasoning expressed by this Court in the recent case of State v. McLane, 126 W. Va. 219, 26 S. E. 2d 604. In the McLane case, upon an indictment for murder, the defendant was convicted of murder of the second degree which conviction, of course, constituted an acquittal of the higher offense of murder of the first degree. In that case an instruction offered by the State dealt with and defined the elements of murder of the first degree. As the evidence in the case justified a conviction of no higher offense than murder of the second degree, in defining the offense of murder of the first degree, the instruction *49submitted a question of law to the jury which the defendant contended unduly inflamed and influenced the jury. Concerning the instruction this Court said: “There being no question raised as to the evidence justifying this instruction, but the assigned error being entirely a question of law, we are of the opinion that it did not constitute error for the trial court to approve it.”
In the cases of State v. Toler, 129 W. Va. 575, 41 S. E. 2d 850; State v. Bowles, 117 W. Va. 217, 185 S. E. 205; State v. Stanley, 112 W. Va. 310, 164 S. E. 254, cited in the majority opinion, and the cases of State v. McLane, 126 W. Va. 219, 27 S. E. 2d 604, and State v. Gunter, 123 W. Va. 569, 17 S. E. 2d 46, in which an instruction relating to murder of the first degree was given, and the defendant, though acquitted of that offense, was convicted of the offense of murder of the second degree, this Court held that the giving of such instruction did not constitute prejudicial error. As the offense of second degree murder, the conviction of which in each of the cases just cited was upheld, is a much more serious offense than that of unlawful wounding, of which the defendant was convicted in the case at bar, and as the rule relating to an instruction of a higher degree of an offense was recognized and applied by this Court in the above cited cases in which a conviction of murder of the second degree was sustained, there appears to be no justifiable reason for refusing to apply the rule in the case at bar.
It is also pertinent to observe that in the above cited cases, in which the foregoing rule was applied and it was held that a defendant was not prejudiced by an erroneous instruction relating to an offense of a higher degree of which he was acquitted, the kind or the degree of error in the instruction was not discussed or considered.
The defendant had a fair trial which, under the foregoing rule as recognized and applied in prior decisions of this Court, was free from prejudicial error; and the evidence shows beyond any reasonable doubt that the de*50fendant was guilty of the offense of which he was convicted. As the action of the trial court in giving the instruction complained of did not prejudice the defendant and is not a sufficient ground for reversal, I would affirm the judgment.