¶1(after stating the facts). It is contended that the court erred in giving said instruction numbered 18 at the time and in the manner it did, without calling attention to the other instructions as part of the law of the case, and that the instruction itself is not the law.
¶2It was within the province of the presiding judge to recall the jury and give them further instructions when, in the exercise of a proper discretion, he regarded it necessary to do so in the furtherance of justice, and it is not always necessary in such cases- that he should repeat the whole charge, but this instruction was given to the jury after they had returned once and asked to be instructed again as to the extent of drunkenness that would affect the degree of the crime and all the instructions of the case had been reread to them, and without any request upon their part for further instruction, and also without any caution or admonition from the judge that they should regard it with all the other instructions given as the law of the case. Such practice is not to be commended, although in this instance it may be that the cause would not have been reversed because of it if the instruction complained of had been a correct declaration of law. Lee v. State, 73 Ark. 148.
¶3The law relating to the extent of drunkenness or the effect necessary to be produced by it upon the mind of the defendant, to reduce the grade of the offense, was properly declared in instruction No. 14 given by the court. Casat v. State, 40 Ar.k 511; Chrisman v. State, 54 Ark. 284; Chowning v. State, 91 Ark. 503; Wood v. State, 34 Ark. 341.
¶4Defendant’s requested instruction No. 1 applied the law as stated in No. 14 to the case as made, and in connection with it was a correct statement of the law, and should have been given. The cause would not have been reversed, however, for the court’s failure to give it, since such failure could not have been prejudicial because of instruction No. 14 given. Instruction No. 18 given at the State’s solicitation and without request from the jury, after it had retired the second time for the consideration of its verdict, was not the law. It tells the jury that if the defendant, prior to the killing, formed the specific intent to take life of the deceased, and afterwards voluntarily became so drunk that he did not know what he was doing at the time of the killing, he would still be guilty of murder in the first degree, if he was But carrying out his predetermined purpose to.kill the deceased at the time the act was committed; and is contradictory of the law as heretofore laid down in the decisions of the court and as properly declared in instruction No. 14. Henslee v. State, 97 Ark. 105.
¶5For this error, the judgment is reversed, and the cause remanded for a new trial.