dissenting:
As I emphatically disagree with the conclusion reached by the majority of the Court I dissent from the decision in this case which reverses the judgments of the Intermediate Court and the Circuit Court of Kanawha County, *630sets aside the verdict of the jury, and awards the defendant a new trial.
The reasoning by which the majority would justify its decision is, in my opinion, utterly unsound and completely unconvincing and is based on three palpably insufficient grounds. These grounds, which in view of the evidence are highly technical and entirely devoid of merit, include and challenge the rulings of the trial court: (1) in requiring the defendant to state that he did not have a license to carry the revolver with which he killed his victim; (2) in giving Instruction No. 2 offered by the State relating to a verdict which would find the defendant guilty of murder of the first degree; and (3) in permitting the prosecuting attorney in his closing argument to tell the jury how, in his opinion, the homicide occurred.
By many decisions of this Court, from the early cases of Danks v. Rodeheaver, 26 W. Va. 274, Searles v. Kanawha and Ohio Railway Company, 32 W. Va. 370, 9 S. E. 248, and Gregory’s Adm’r v. Ohio River Railroad Company, 37 W. Va. 606, 16 S. E. 819, to the recent cases of Isabella v. West Virginia Transportation Company, 132 W. Va. 85, 51 S. E. 2d 318; Ritz v. Kingdon, 139 W. Va. 189, 79 S. E. 2d 123; Crookshank v. Hall, 139 W. Va. 355, 80 S. E. 2d 330; Alloy v. Hennis Freight Lines, Inc., 139 W. Va. 480, 80 S. E. 2d 514; and State v. Davis, 139 W. Va. 645, 81 S. E. 2d 95, alleged errors in the admission or the rejection of evidence were held to have been waived, and for that reason could not here be considered or reviewed on writ of error, if such errors were not made the ground of a motion to set aside a verdict and grant a new trial or were not incorporated in a special bill of exceptions which shows the evidence and the ruling of the court upon such evidence, even though all the evidence is made a part of the record by a general bill of exceptions.
The evidence which the majority holds was improperly admitted to the prejudice of the defendant, as indicated in the majority opinion, consisted of these two questions propounded to the defendant and these two answers: *631“Q. You knew you had no right to carry this gun without a State license? A. That is true. Q. You did not have any State license? A. No, sir.” This evidence, which was the basis for the motion of the defendant for a mistrial, was not specified as a ground of the motion of the defendant to set aside the verdict and to grant him a new trial and was not incorporated in any special bill of exceptions. The admission of the evidence and the denial of the motion to declare a mistrial were never specifically called to the attention of that court before it entered judgment upon the verdict of guilty of murder of the first degree without recommendation and imposed upon the defendant the penalty of death by electrocution. Thus the trial court was not given the opportunity, expressly required by many decisions of this Court, to review or reconsider its action in admitting the evidence and in overruling the motion to declare a mistrial.
In this connection it is well to repeat, though to do so is now utterly futile in the case at bar, this pronouncement of Judge Brannon in Gregory’s Adm’r v. Ohio River Railroad Company, 37 W. Va. 606, 16 S. E. 819: “After a trial is over, it is not simply a matter of fairness to the judge, hut one vitally concerning the administration of justice in avoiding error and appeals, and consequent protraction of litigation, that there should be opportunity to review the points passed upon in the trial. The motion for a new trial affords this opportunity. It is the halting place for review.” (Emphasis supplied).
These alleged errors were first specifically mentioned in a pauper’s affidavit filed by the defendant in the trial court on March 8, 1954, five days after the entry by it of the final judgment. They were subsequently incorporated in the petition of the defendant to the circuit court for a writ of error to the judgment of the intermediate court and in his petition to this Court for a writ of error to the judgment of the circuit court, and they were also specified in the brief of his attorneys filed in this Court. Thus it appears that the intermediate court did not have these alleged errors properly presented to it until after the entry *632of its final judgment and they were not properly presented to the circuit court by the record before it upon its consideration of the writ of error which it granted to the judgment of the intermediate court. The same situation existed, with respect to the record, in the consideration of this case upon the writ of error granted by this Court.
In Ritz v. Kingdom, 139 W. Va. 189, 79 S. E. 2d 123, the opinion in which was concurred in by all four of the present members of this Court who participated in the decision, this Court considered at length the procedure required for the consideration by this Court of alleged errors committed by a trial court in the admission or the rejection of evidence in cases in which the parties are entitled to a trial by a jury, for the purpose of clarifying the procedure and removing certain inconsistencies in some of its prior decisions on that question which had produced confusion in trial courts and uncertainty among members of the bar.
In the Ritz case, after an exhaustive review of its prior decisions on that point, in an effort to settle the question and inform trial courts and members of the bar of the required procedure, this Court adhered to and reaffirmed its holding in State v. Cruikshank, 138 W. Va. 332, 76 S. E. 2d 744; Isabella v. West Virginia Transportation Company, 132 W. Va. 85, 51 S. E. 2d 318; Haldren v. Berryman, 109 W. Va. 403, 155 S. E. 125; Graner v. Boring, 105 W. Va. 505, 143 S. E. 232; Stewart v. Pollack-Forsch Company, 105 W. Va. 453, 143 S. E. 98; Tuggle v. Belcher, 104 W. Va. 178, 139 S. E. 653; Draper v. Mercer Hardware & Furniture Company, 104 W. Va. 144, 139 S. E. 645; State v. Henderson, 103 W. Va. 361, 137 S. E. 749; State v. Male, 103 W. Va. 355, 137 S. E. 751; State v. John, 103 W. Va. 148, 136 S. E. 842; Roberts v. Lykins, 102 W. Va. 409, 135 S. E. 388; Dransfield v. Boone-Armstrong Motor Company, 102 W. Va. 370, 135 S. E. 286; Tredway v. New River & Pocahontas Consolidated Coal Company, 102 W. Va. 135, 135 S. E. 253; Proudfoot v. Pocahontas Transportation Company, 100 W. Va. 733, 132 S. E. 746; Trippett v. Monongahela West Penn Public Service Company, 100 W. Va. *633319, 130 S. E. 483; State v. Noble, 96 W. Va. 432, 123 S. E. 237; Moorefield v. Lewis, 96 W. Va. 112, 123 S. E. 564; Guyandotte Coal Company v. Virginian Electric and Machine Works, 94 W. Va. 300, 118 S. E. 512; State v. Jones, 77 W. Va. 635, 88 S. E. 45; Bartlett v. Bank of Mannington, 77 W. Va. 329, 87 S. E. 444; Angrist v. Burk, 77 W. Va. 192, 87 S. E. 74; Hill v. Norton, 74 W. Va. 428, 82 S. E. 363, Ann. Cas. 1917D, 489; Ireland v. Smith, 73 W. Va. 755, 81 S. E. 542; State v. Henaghan, 73 W. Va. 706, 81 S. E. 539; State v. Bingham, 42 W. Va. 234, 24 S. E. 883; Halstead v. Horton, 38 W. Va. 727, 18 S. E. 953; and Gregory’s Adm’r v. Ohio Railroad Company, 37 W. Va. 606, 16 S. E. 819, that alleged errors in the admission or the rejection of evidence, to which objection has been made in the trial court, are waived unless such evidence is specifically set forth as a ground of a motion to set aside the verdict and grant a new trial or unless it is incorporated in a special bill of exceptions which shows the evidence and the ruling of the court in admitting or rejecting it.
In the Ritz case this Court also expressly overruled the holding and disapproved statements in the opinions in Hinton Milling Company v. New River Milling Company, 78 W. Va. 314, 88 S. E. 1079; Bond v. National Fire Insurance Company, 77 W. Va. 736, 88 S. E. 389; Walters v. Appalachian Power Company, 75 W. Va. 676, 84 S. E. 617; Parr v. Howell, 74 W. Va. 413, 82 S. E. 126; Wright v. Ridgely, 67 W. Va. 319, 67 S. E. 787; Fuller v. Margaret Mining Company, 64 W. Va. 437, 63 S. E. 206; McClanahan v. Caul, 63 W. Va. 418, 60 S. E. 382; Williams and Davisson Company v. Ferguson Contracting Company, 60 W. Va. 428, 55 S. E. 1011; Foley v. City of Huntington, 51 W. Va. 396, 41 S. E. 113; Bodkin v. Arnold, 48 W. Va. 108, 35 S. E. 980; Kay v. Glade Creek and Raleigh Railroad Company, 47 W. Va. 467, 35 S. E. 973; and McDodrill v. Pardee and Curtin Lumber Company, 40 W. Va. 564, 21 S. E. 878, to the extent that such holding and such statements in the opinions in those cases are inconsistent or in conflict with the holding in that case on that point.
Since the decision in the Ritz case this Court, in three recently decided cases, expressly adopted and approved *634the procedure specifically designated and required by the unanimous decision of the four participating judges in the Ritz case. In Crookshank v. Hall, 139 W. Va. 355, 80 S. E. 2d 330, and in Alloy v. Hennis Freight Lines, Inc., 139 W. Va. 480, 80 S. E. 2d 514, this Court held in point 2 of the syllabus in each case, in the language of point 3 of the syllabus in the Ritz case, that “Alleged errors in the admission or the rejection of evidence, to which objection has been made in a trial court, are waived unless such evidence is specifically set forth as a ground of a motion to set aside the verdict and grant a new trial or unless it is incorporated in a special bill of exceptions which shows the evidence and the ruling of the court in admitting or rejecting it.” In the most recent case, State v. Davis, 139 W. Va. 645, 81 S. E. 2d 95, the unanimous opinion contains this language: “The evidence objected to is not set forth in a special bill of exceptions, nor does the record show that it was specifically assigned as ground for a motion to set aside the verdict and grant a new trial. State v. McNemar, 108 W. Va. 237, 151 S. E. 176; Haldren v. Berryman, 109 W. Va. 403, 155 S. E. 125; State v. May, 111 W. Va. 118, 160 S. E. 918; Alloy v. Hennis Freight Lines, Inc., 139 W. Va. 480, 80 S. E. 2d 514. See Ritz v. Kingdon, 139 W. Va., 189, 79 S. E. 2d 123, 137, where numerous cases are cited in support of this principle. ***. In accordance with the cases cited above, we hold that the objections were waived and will not be considered on this writ of error. State v. May, supra.”
In Isabella v. West Virginia Transportation Company, 132 W. Va. 85, 51 S. E. 2d 318, and in State v. Cruikshank, 138 W. Va. 332, 76 S. E. 2d 744, the procedure specifically required in the later case of Ritz v. Kingdon, 139 W. Va. 189, 79 S. E. 2d 123, was recognized and followed by this Court. In Isabella v. West Virginia Transportation Company, 132 W. Va. 85, 51 S. E. 2d 318, this Court refused to consider an assignment of error in the admission of certain evidence which had been designated as a ground in support of a motion to set aside the verdict and grant a new trial but had not been incorporated in a special bill of exceptions or specifically mentioned in the brief of *635counsel in this Court; and in State v. Cruikshank, 138 W. Va. 332, 76 S. E. 2d 744, in referring to the early case of Danks v. Rodeheaver, 26 W. Va. 274, this Court, citing a long list of cases beginning with State v. Thompson, 26 W. Va. 149, and ending with Closterman v. Lubin, 113 W. Va. 353, 167 S. E. 871, said: “Many subsequent decisions of this Court are to the effect that errors not specified on a motion for a new trial or not the subject of a special bill of exceptions will be treated as waived and will not be considered by an appellate court.”
The Ritz case, in stating and approving the procedure required to enable an appellate court to consider alleged errors in the admission or the rejection of evidence did not create or announce any new, strange or unfamiliar rule of procedure; it simply reiterated and applied a rule which had been established and applied in the great majority of the cases decided by this Court in which the question of alleged errors in the admission or the rejection of evidence to which objection had been made in a trial court was presented and considered, and condemned and undertook to eliminate certain inconsistent and conflicting departures from the rule which had resulted from the decisions of this Court in a comparatively small number of cases.
The present decision of this Court, by a bare majority of three of its five judges, of the procedural question of appellate review of the action of a trial court in admitting or rejecting evidence to which objection has been made, removes the certainty and the stability sought to be restored and established by the Ritz case, and reestablishes confusion and uncertainty on this vitally important question of trial and appellate procedure which affects every trial court and every member of the legal profession in this State and is potentially present in every case in which a trial by a jury occurs. The action of the majority in overruling, on this point, the Ritz case, the five cited recent cases, and the long list of well considered prior cases referred to in point 6 of the syllabus, and the pronouncement in point 7 of the syllabus that the holding, on this point, of the cases there referred to, which had *636been expressly overruled, “is reinstated” and the statements in the opinions in those cases “are approved”, is indeed a rare and, perhaps, unprecendented accomplishment which gives me grave concern.
I know of no other decision of this Court which summarily overrules a point of decision in so many cases and at the same time undertakes to reinstate and approve the decision in several other cases in which the holding on a particular point has been previously overruled. By its summary action in this case, the majority strikes a severe blow to and indicates slight or no regard for the universally recognized doctrine of stare decisis in pursuance of which courts generally abide by and adhere to their previously decided cases. This doctrine is a salutary principle which should not ordinarily be departed from unless considerations of public policy, which do not arise in this case, demand such departure. See Colonial Trust Company v. Flanagan, 344 Pa. 556, 25 A. 2d 728; Hoyt v. Martense, 16 N. Y. 231.
The present decision, in my judgment, leaves the trial courts of this State and the members of the bar without any definite assurance concerning the future action of this Court in considering or refusing to consider alleged errors in the admission or the rejection of evidence objected to in a trial court, upon the state of the record, in any particular instance. The procedure in a matter of this character should be stable, certain and firmly established and adhered to, and it should not depend, as it now seems to do, upon the view or the attitude which may be adopted by this Court at any time in each particular case in which it is asked to grant a review. The rule, which since the decision in the Ritz case, at least, until today had been recognized and applied, has now been broadened and extended to permit consideration and review by this Court of alleged errors in the admission or the rejection of evidence to which objection has been made in a trial court if assigned and specified for the first time in a petition to an appellate court for a writ of error, or if set forth in the brief of counsel in the appellate court, or if otherwise specifically brought to the attention of the ap*637pellate court. (Emphasis supplied). If this language; which in substance is contained in the majority opinion, means what it says, it will not be necessary, as heretofore, if there is a mere general objection to the admitted or rejected evidence in the trial court, to call the matter to its attention by designating the evidence objected to as a ground of a motion for a new trial or to call the alleged errors to its attention in any other manner, and specific objection may for the first time be presented to the appellate court by a petition to it for a writ of error, by assignment in the brief of counsel, or by the vague and indefinite method of “otherwise specifically” bringing it to the attention of that court, which may or could be held to mean a reference to the alleged errors in the oral argument of counsel in the appellate court.
Any of the three last mentioned methods of procedure would manifestly deprive the trial court of a fair or reasonable opportunity to review and correct the alleged errors which, until now, has always been afforded under penalty of waiver of the objection, and will necessarily result in appellate review in numerous cases in which such review would have been unnecessary and could have been avoided if the trial court had been given an opportunity to correct its ruling. I can not agree to the adoption or the recognition of a rule which permits or renders possible any such previous unheard of and presently intolerable innovation in the procedure employed in the orderly administration of justice.
Of course, I agree that if it clearly appears, and a court is convinced, that its prior decision of a question is manifestly wrong it may, and should, overrule any such decision. I realize also that no' question is finally decided until it is rightly decided; but I can see no reason to invoke or resort to that doctrine in resolving the procedural question involved in this case. Justice has been administered satisfactorily throughout the years in this jurisdiction by the recognition and the application of the rule that alleged errors in the admission or the rejection of evidence objected to in a trial court are waived unless such evidence is specifically set forth as a ground of a *638motion to set aside the verdict and grant a new trial or unless it is incorporated in a special bill of exceptions. In the face of its many prior decisions, this Court now rejects the former limitations of the rule and unduly extends its .scope and application. I would not in this case depart from the rule and I will not be responsible for the consequences which occur from its modification even though the defendant, who assails it and who has not but could have complied with it, as countless other litigants have been required to do, has been convicted and sentenced to die for committing the crime of murder of the first degree.
The majority would justify its action, in overruling its former holding in many cases and in extending the rule, by relying upon the provisions of Section 37, Article 6, Chapter 56, Code, 1931. That section, relating to appellate review, provides in part that “nothing in this or the previous section shall be construed as compelling the appellate court to notice or review any matter arising upon a specific exception noted in the transcript of the evidence and proceedings reported unless such exception be specifically pointed out in assignments of. error, brief of counsel, or otherwise specifically brought to the attention of the court.”
It should be observed that this provision of the statute does not directly require an appellate court to notice or review any matter arising upon a specific exception noted in the transcript of the evidence and proceedings reported, but states that nothing in that section or the preceding section shall he construed to compel it to do so unless such exception be specifically pointed out in assignments of error, brief of counsel, or otherwise specifically brought to the attention of the court. (Emphasis supplied.) Though it may be argued that by implication an appellate court is required to notice or review a specific exception if it is pointed out in assignments of error, brief of counsel, or otherwise specifically brought to the attention of the court, the provision need not be given that construction, meaning or effect.
*639The cases of Ferguson v. Pinson, 131 W. Va. 691, 50 S. E. 2d 476; Isabella v. West Virginia Transportation Company, 132 W. Va. 85, 57 S. E. 2d 318; State v. Cruikshank, 138 W. Va. 332, 76 S. E. 2d 744; Ritz v. Kingdon, 139 W. Va. 189, 79 S. E. 2d 123; Crookshank v. Hall, 139 W. Va. 355, 80 S. E. 2d 330; Alloy v. Hennis Freight Lines, Inc., 139 W. Va. 480, 80 S. E. 2d 514; and State v. Davis, 139 W. Va. 645, 81 S. E. 2d 95, were all decided after the enactment of the foregoing statutory provision and, though it was not discussed in any of them except the Ferguson case, in which it was referred to-, it can. not be presumed that this Court did not give consideration to the provision of the statute, or was unaware of its operation and effect, in recognizing and adhering to the rule that alleged errors in the admission or the rejection of evidence to which objection was made in a trial court are waived unless such evidence is specifically set forth as a ground of a motion to set aside the verdict and grant a new trial or unless it is incorporated in a special bill of exceptions, as it did in all the above cited cases except the Ferguson case in which the rule was not involved. On the contrary the effect of those decisions involving the foregoing rule was to regard the statutory provision as merely directory and not controlling on an appellate court. In view of the holding in the cited cases in which the rule was considered and adhered to, decided after the enactment of, the foregoing statutory provision, that provision does not justify or support the action of the majority in rejecting the rule and in overruling, on that point, its many prior decisions in which the rule was recognized and applied.
To consider and review the alleged error in the admission of the evidence of the defendant that he did not have a license to carry the revolver with which he killed his victim, it was necessary to repudiate the rule of procedure reiterated and applied in the Ritz case and to overrule that case and the many other cited cases on that point and, having done so, the majority holds that the admission of the evidence constituted reversible error. It was unnecessary, however, to pursue that course to reverse the judgments in this case, for the majority, being convinced *640that the action of the trial court, in giving Instruction No. 2 offered by the State and in permitting the prosecuting attorney in his closing argument to tell the jury how, in his opinion, the homicide occurred, constituted reversible error, could have reversed the judgment of the trial court and the judgment of the circuit court on either or both of those grounds.
In the conclusion of the majority to reverse, on the ground that the admission of the evidence of the defendant that he did not have a license to carry the revolver constituted reversible error, I can not concur and with it I emphatically disagree for two controlling reasons. First, under the doctrine of stare decisis, the majority should have abided by its recent prior decisions and refused to consider or review the alleged error; and second, if the admission of the evidence constituted error it was harmless error which did not prejudice any right of the defendant and did not influence or affect the jury in arriving at its verdict of guilty of murder of the first degree without recommendation. The introduction of this evidence did not inform the jury, for the first time, of the previous criminal acts of, the defendant or acquaint it, for the first time, with his bad character. The defendant himself did this by his own testimony which was readily and willingly given by him without objection by his attorneys.
He testified that he had been committed to the West Virginia Industrial School at an early age for a minor infraction of the law; that he had received an “undesirable discharge” from the United States Army; that he had later reenlisted; that at one time while he was in the military service he had been absent from his duties without leave and had been court martialled and fined for that misconduct; that after his reenlistment, in November, 1948, he was charged with and convicted of the crimes of grand larceny and breaking and entering in the State of Virginia and sentenced to two three year terms in the Virginia Penitentiary; that after serving four and one half years of these two terms of confinement he was paroled; that he was on parole when he purchased the *641revolver with which he killed his victim; that he was on parole the day before the homicide when he drank heavily of intoxicating liquors, became intoxicated, and spent that night with an unmarried girl in a hotel in Logan; and that before leaving Koseville, Ohio, on his trip to Logan he had taken and sold, without the knowledge or the consent of his father and his brother, some furniture which he claimed belonged to him and to them; and that he used some of the money which he received from the sale in travelling to Logan.
The testimony of the defendant that he did not have a license to carry the revolver was not the only information which the jury had of that fact for it must have known that a convict on parole could not have obtained such license; and whether the defendant did or did not have a license to carry a revolver is of no consequence in the determination of his guilt or innocence of the crime with which he was charged and of which he was convicted. If the defendant had previously been issued a license to carry a revolver or, indeed, a license or a permit to arm himself with an arsenal of deadly weapons, any such license or permit would not confer upon him the right to use the revolver or any other firearm in the manner in which the defendant admitted that he used the revolver to kill his victim. Any such license or permit would constitute no defense whatsoever which would excuse or mitigate his murderous act.
The defendant testified that immediately before, at the time, and after, he killed Gullett he knew what he was doing; that on the trip from Logan to Charleston he and his victim quarrelled about the amount of the fare; that during the quarrel they left the taxicab and engaged in a fist fight at the rear of the taxicab; that after they reentered it his victim, with the back of his hand, slapped the defendant across his mouth; that the defendant in a fit of passion and anger drew the revolver from his pocket and shot his victim in the head; that the defendant, being frightened, felt his victim’s pulse to determine whether he was still alive and, after determining that his victim *642was dead, the defendant drove the taxicab for some distance, then stopped, removed the body from the taxicab, and threw the body over an embankment where it was found several days later; that the defendant took $13.00 from his victim’s shirt pocket, his billfold and his identification cards; and that he then drove the taxicab to the City of Charleston where he abandoned it. The doctor who performed an autopsy on the body of the deceased testified that Gullett lived for a period of at least three hours after he was shot. This testimony is not controverted.
The evidence shows overwhelmingly and beyond all reasonable doubt that the defendant fatally shot his victim and robbed him before he died. In these circumstances whether the defendant shot and killed his victim wilfully, deliberately or with premeditation, or in a fit of angry passion, is legally unimportant for by Section 1, Article 2, Chapter 61, Code, 1931, murder in the commission of, or the attempt to commit, arson, rape, robbery or burglary, is murder of the first degree.
Under the evidence, which established beyond all reasonable doubt the guilt of the defendant of the crime of murder in the commission of robbery, the only just and proper verdict which the jury could have returned, with or without the evidence that the defendant did not have a license to carry a revolver, was the verdict rendered by the jury of guilty of murder of the first degree without recommendation. The language used by this Court in its opinion in State v. Rush, 108 W. Va. 254, 150 S. E. 740, with reference to- the evidence of guilt in that case, is applicable to the evidence in this case. That language is: “Neither bias, nor incompetent evidence, nor improper instruction was requisite in the least degree in this case to lead the jury to its verdict. The competent evidence compelled a return of guilty. Under that * * *, the jury could not properly have found any other verdict.”
As already indicated the error, if any, in admitting the evidence of the defendant that he did not have a license to carry a revolver was harmless error which does not *643justify a reversal of the judgment of the trial court. This Court has consistently held that a judgment upon a verdict of guilty in a criminal case will not be reversed because of error committed by the trial court, unless such error is prejudicial to the accused. State v. Taylor, 130 W. Va. 74, 42 S. E. 2d 549; State v. Justice, 135 W. Va. 852, 65 S. E. 2d 743; State v. Smith, 119 W. Va. 347, 193 S. E. 573; State v. Corey, 114 W. Va. 118, 171 S. E. 114; State v. Rush, 108 W. Va. 254, 150 S. E. 740; State v. Dephenbaugh, 106 W. Va. 289, 145 S. E. 634; State v. Smith, 97 W. Va. 313, 125 S. E. 90; State v. Miller, 85 W. Va. 326, 102 S. E. 303; State v. Lane, 44 W. Va. 730, 29 S. E. 1020. See also State v. Painter, 135 W. Va. 106, 63 S. E. 2d 86.
In support of its action in reversing the judgment of the trial court on the ground that the admission of the testimony of the defendant that he did not have a license to carry the revolver, the majority cites as authority the case of State v. Foley, 128 W. Va. 166, 35 S. E. 2d 854, and the majority opinion contains the statement that a similar question propounded to the defendant Foley in that case elicited an answer from him which was self-incriminating. That statement, if applied to the defendant in this case, is merely gratuitous, for the defendant did not refuse to answer the questions on the ground that to do so would tend to incriminate him or, in fact, on any other ground. Of course, his failure to invoke the privilege against self-incrimination constituted a waiver of that privilege and he does not raise that question upon this writ of error.
In the Foley case the facts in connection with the homicide were materially different from the established material facts in connection with the slaying of Gullett by the defendant in the case at bar. In the Foley case the sole defense was that the defendant killed the decedent in self-defense and in support of that defense the defendant Foley testified that at the time he fired the shot which resulted in the death of his assailant Groves he believed that his life was in danger and that he was in danger of great bodily harm at the hands of Groves who had previously threatened the defendant. Here the defendant did *644not rely on self-defense and the evidence is entirely insufficient, as a matter of law, to support that defense.
The evidence on the issue of the guilt or the innocence of the defendant in the Foley case, though sufficient to support the verdict of guilty in that case, did not, as did the competent evidence in this case, require the return of a verdict of guilty. The defendant in that case, unlike the defendant in this case, did not inform the jury of any previous record of criminal conduct on his part and did not acquaint the jury with his own bad character. In that state of the evidence in the Foley case the admission of the testimony of the defendant that he did not have a license to carry a pistol was prejudicial to him. In that case this Court stated, in point 2 of the syllabus, that the question which elicited an answer from the defendant that he did not have such license was designed to prejudice the jury against him. Here, as already pointed out, the admission of the evidence that the defendant did not have a license to carry the revolver with which he killed his victim, if error, was harmless error, which did not lead the jury to return its verdict of guilty of murder of the first degree and, in consequence, it did not prejudice any right of the defendant. Moreover, the testimony of the defendant that he did not have a license to carry the revolver was merely cumulative of the evidence of his previous criminal conduct which the defendant himself freely, voluntarily, and without objection by his attorneys, presented to the jury.
For the foregoing reasons the Foley case is distinguishable from the case at bar and the holding in that case that “Where, in a trial for murder, allegedly committed with the use of a revolver, the accused voluntarily takes the witness stand in his own behalf, it is reversible error for the trial court, over objection of counsel, to permit counsel for the prosecution to inquire of and require the accused to answer, whether he had a license to carry a pistol at the time the alleged killing took place.”, is not in point and is not controlling in the decision of this case. Other*645wise to apply the holding in the Foley case would mean that in every trial for murder or other crime involving personal violence in which the competent evidence is overwhelming, establishes the guilt of the accused beyond all reasonable doubt, and compels the return of a verdict of guilty, as in this case, the mere answer of a defendant that he did not have a license to carry a deadly weapon in response to a question calling for such answer, to which objection is made, would require the reversal of a judgment entered upon the verdict of guilty in every such case. I am unwilling, and the holding in the Foley case was not intended and does not require, that it be so applied.
There is no merit in the contention that the trial court erred in giving Instruction No. 2 offered by the State. The instruction properly defined murder of the first degree in accordance with the provisions of Section 1, Article 2, Chapter 61, Code, 1931. After telling the jury that if the jury believed from the evidence beyond a reasonable doubt that Gullett was shot and killed by the defendant while he was engaged in committing, or attempting to commit, robbery upon Gullett, the jury should find the defendant guilty of murder of the first degree, the instruction informed the jury that if the jury should so find it was the province of the jury to determine whether the defendant should be punished by confinement in the penitentiary of this State for life or by execution, that if the jury should find that the defendant should be punished by confinement in the penitentiary for life it should so find in its verdict, and that if it should find that he should be punished by death the verdict would be “We, the jury find the defendant guilty of murder in the first degree as charged in the indictment.”
The instruction correctly stated the law applicable to the facts established by the evidence in this case and substantially embodied the requirements of Section 15, Article 3, Chapter 62, Code, 1931, which, in connection with a verdict of guilty of murder of the first degree provides that if the jury should find the accused guilty of murder of the first degree it may in its discretion further *646fi nd that he be punished by confinement in the penitentiary and that if such further finding be not added to the verdict the accused shall be punished with death, but if added, he shall be punished by confinement in the penitentiary during his life. The instruction expressly informed the jury of the effect of the form of its verdict. From the language of the instruction that if the jury should find that the defendant should be punished by confinement in the penitentiary for life it should so find in its verdict and that if it should find that he should be punished by death the verdict should be “We, the jury find the defendant guilty of murder in the first degree as charged in the indictment”, it can not reasonably be asserted that the jury was not plainly informed, or that the jury did not fully understand, that, by omitting, as it did, the finding that the defendant should be punished by confinement in the penitentiary, the jury intended any finding other than the finding that the defendant should be punished by death. It is obvious that the jury realized fully, from the language of the instruction, that under the verdict which it returned without the foregoing additional finding the mandatory sentence of death would be imposed by the trial court.
The material and controlling difference between the foregoing instruction and the instruction relating to the verdict to be returned by the jury if it should find the accused guilty of murder of the first degree in the recent case of State v. Loveless, 139 W. Va. 454, 80 S. E. 2d 442, cited in the majority opinion, is that the instruction in that case, which this Court condemned as fatally defective, did not sufficiently inform the jury of the effect of a verdict of guilty of murder of the first degree which omitted the additional finding that the accused should be punished by confinement in the penitentiary. The instruction in that case merely told the jury that “murder in the first degree is punishable by death or confinement in the penitentiary of this State for life, as the jury shall find in their verdict.” Because of the incomplete character of the quoted portion of the instruction it could not be determined by the verdict *647of guilty of murder of the first degree whether the jury intended that the defendant should be punished by confinement in the penitentiary for life or by death. The failure of the court to incorporate in the instruction given in that case sufficient information to make clear to the jury the effect of the verdict and to enable the jury to indicate clearly whether it intended that the accused should be punished by confinement in the penitentiary for life or by death constituted reversible error.
From the foregoing discussion of the fundamental difference between the instruction given in State v. Loveless, 139 W. Va. 454, 80 S. E. 2d 442, and the instruction here under consideration, relating to the punishment to be inflicted under a verdict of guilty of murder of the first degree, it is clear that the holding of this Court, condemning the instruction in that case, has no present application and is not controlling in the decision of this case.
The cases of State v. Goins, 120 W. Va. 605, 199 S. E. 873, and State v. Chaney, 117 W. Va. 605, 186 S. E. 607, also cited in the majority opinion, are likewise not in point. In those cases this Court held that it is the mandatory duty of the trial court, in a prosecution for murder, to inform the jury, without request, of its authority under the statute to determine whether the accused, if found guilty of murder of the first degree, shall be punished by death or confinement in the penitentiary for life, and to instruct the jury that, in the event it returns a verdict of guilty of murder of the first degree, the jury may further find that the accused be punished by confinement in the penitentiary, in which case he shall be sentenced tO' life imprisonment, and that otherwise the accused shall be punished by death. In State v. Chaney, 117 W. Va. 605, 186 S. E. 607, referring to the instruction given by the trial court, this Court said: “The jury was instructed concerning the elements constituting murder in the first and second degrees, but the record is silent as to whether they were advised of their authority under Code (1931) 62-3-15, to determine whether defendant, in event of his being found guilty of murder in the first degree, should be punished by death or confine*648ment in the penitentiary for life.” In State v. Goins, 120 W. Va. 605, 199 S. E. 873, the trial court was not requested to give, and it did not give, any instruction concerning the punishment to be imposed upon the accused in the event the jury should return a verdict of guilty of murder of the first degree. In each of those cases the failure of. the trial court to instruct the jury that it had the authority by its verdict of guilty of murder of the first degree to determine whether the accused should be punished by death or confinement in the penitentiary for life was held to be reversible error. It is obvious that the holding in each of those cases is inapplicable to the instruction given in the case at bar.
The contention that the trial court erred in permitting the prosecuting attorney in his closing argument to tell the jury how, in his opinion, the homicide occurred is also utterly devoid of merit. The statements of the prosecuting attorney in his closing argument to the jury, and the proceedings had in connection with those statements during the argument, as shown by the record, were:
“In my opinion Gullett was driving that taxicab, going along at a moderate rate of speed, thinking about nothing, and Bragg took that pistol and put it over at his temple and pulled the trigger in order to take the money off of him that he knew that he had. The defendant reached over, grabbed the steering wheel and put his foot on the brakes and stopped the car.
“ (The defendant by counsel objected to and moved to exclude from the jury the last statement of the witness, that he put his foot on the brake.) (Overruled; exception.)
“I say that is my opinion, gentlemen of the jury. Gullett is not here to tell you what happened and you do not have to rely in this case on what Bragg tells you. You have as much right to draw your own conclusions as I have * *
It should be clearly understood that in making those statements the prosecuting attorney did not directly misquote any of the evidence in the case for it is obvious, *649from the above quotation, that he was simply expressing his opinion of the way in which the homicide occurred, based upon the testimony of the defendant, the only living person who really knew what actually happened, and was merely drawing his inferences from the evidence of the defendant concerning that tragic event. This is evident from his statement “In my opinion”, and from his additional statement, after the objection of the defendant had been overruled, “I say that is my opinion, gentlemen of the jury. Gullett is not here to tell you what happened and you do not have to rely in this case on what Bragg tells you. You have as much right to draw your own conclusions as I have”. The prosecuting attorney was clearly entitled, in the argument of the case, to make each and all of the foregoing statements. Of course, the prosecuting attorney should not be permitted to misstate the evidence or to mention facts not embraced in the evidence or to engage in personal abuse of a defendant or a witness, for the purpose of prejudicing the jury against a defendant. But nothing of this kind can be found in the quoted portions of his argument. None of his statements was in any way prejudicial to any right of the defendant. If a prosecuting attorney is not permitted to discuss with vigor and draw reasonable conclusions from the evidence in the trial of a case his right and his duty to prosecute a criminal charge are necessarily substantially impaired or effectively destroyed, and I am unwilling to agree to the imposition of any such limitation by this or any other Court.
A prosecuting attorney is permitted to argue on inferences and to present them with zeal and vigor without undue restriction. State v. Lewis, 133 W. Va. 584, 57 S. E. 2d 513; State v. Simon, 132 W. Va. 322, 52 S. E. 2d 725. In State v. Lewis, 133 W. Va. 584, 57 S. E. 2d 513, in considering challenged statements in the argument of a prosecuting attorney, this Court said, in point 7 of the syllabus: “Intemperate statements of a prosecuting attorney in the trial of a criminal case, based upon facts introduced in evidence during such trial, or induced by remarks of counsel for the defendant, which present to *650the jury inferences or conclusions deducible from such facts, but which are not prejudicial to any right of the defendant or do not result in manifest injustice to such defendant, will not justify reversal of a judgment of conviction entered upon a verdict of guilty when such verdict is fully supported by competent evidence in the case.”
The only remark of the prosecuting attorney to which there was specific objection by the defendant was the statement that the defendant “put his foot on the brake.” Even if this should be considered to be a misstatement of fact instead of an expression of opinion by the prosecuting attorney, such misstatement was manifestly trivial and unimportant and did not by any conceivable process of reasoning result in any prejudice whatsoever to any right of the defendant. It could not have influenced or affected in any way the verdict of the jury. In State v. Corey, 114 W. Va. 118, 171 S. E. 114, a case in which sentence of death was imposed upon the defendant, this Court said: “Expressions of opinion by counsel on questions of fact involved in cases on trial are not proper. But we are not familiar with any principle which would require the setting aside of a conviction of high crime because at the trial, in the heat of argument, counsel for the state injected two or three expressions of opinion. It is only where remarks of counsel are unwarranted and prejudicial that a conviction will be set aside on account thereof. State v. Scurlock, 99 W. Va. 629, 130 S. E. 263; State v. Wolfe, 99 W. Va. 694, 129 S. E. 748.” Conceding that the foregoing remark was improper, its utterance does not warrant the reversal of the judgment; and nowhere in the reports of decided cases have I found a parallel accomplishment.
It is crystal clear that the trial court did not abuse its discretion or cause manifest injustice to the defendant in permitting the foregoing portion of the argument of the prosecuting attorney and in refusing to strike it firom the consideration of the jury. “The discretion of. the trial court in ruling on the propriety of argument by counsel before *651the jury will not be interfered with by the appellate court, unless it appears that the rights of the complaining party have been prejudiced, or that manifest injustice resulted therefrom.” Point 3, syllabus, State v. Boggs, 103 W. Va. 641, 138 S. E. 321. See also State v. Painter, 135 W. Va. 106, 63 S. E. 2d 86; State v. Lewis, 133 W. Va. 584, 57 S. E. 2d 513; State v. Simon, 132 W. Va. 322, 52 S. E. 2d 725; State v. Reppert, 132 W. Va. 675, 52 S. E. 2d 820; State v. Cooper, 74 W. Va. 472, 82 S. E. 358, Ann. Cas. 1917D, 453; State v. Allen, 45 W. Va. 65, 30 S. E. 209; State v. Shawn, 40 W. Va. 1, 20 S. E. 873; State v. Shores, 31 W. Va. 491, 7 S. E. 413, 13 Am. St. Rep. 875.
Upon careful review and consideration of this case in its entirety, it is my deep seated conviction that the defendant had a fair trial in which no prejudicial error occurred and that the evidence overwhelmingly and beyond all reasonable doubt established his guilt of the terrible crime of murder of the first degree. I would, therefore, affirm the judgment of the intermediate court and the judgment of the circuit court which affirmed the judgment of the intermediate court.