¶1delivered the opinion of the codrt:
¶2Neither of the objections taken to the judgment in this case can prevail.
¶31. In the case of Murphy vs. Commonwealth, (1 Met., 365,) it was decided that in a trial for misdemeanor the defendant may consent to be tried by less than twelve jurors, whatever might be the rule in cases offelony. The indictment in this case charged that the defendant maliciously stabbed Arven, with the intent to kill him. Upon this indictment the defendant, under section 258 of the Criminal Code, might have been found guilty, either of the felony as charged, or of any lower degree of that offense. He was found guilty of one of the lower degrees of that offense, which was a misdemeanor only; and, therefore, the rule contended for would not properly apply to this case under the decision referred to. But if, as contended, the record presents a case of felony, and not of misdemeanor, it follows that, according to section 334 of the Criminal Code, the error complained of is not such as to authorize this court to reverse the judgment of conviction, especially as no such objection'was made in the court below.
¶42. The second instruction given to the jury by the court, to the effect that drunkenness, or the temporary insanity occasioned by the act of the defendant in getting drunk, constituted no justification or excuse for the commission of crime, was, we *3think, entirely unobjectionable, in view of the facts of the case. Such is the well-settled principle upon this subject. Any other doctrine would result in consequences fatal to the peace and safety of society.
¶5The 6th instruction was also proper. It conforms substantially and almost literally to the 1st section of article 17, Revised Statutes, p. 264, in which the intent to kill is not made an ingredient in the offense described; and also to the second sub-division of section 259 of the Criminal Code, which provides that all injuries to the person, by maiming, wounding, &c., “ whether attended or not with the intention to kill,” shall be deemed degrees of the same offense within the meaning of the next preceding section, (258.) The mere omission to add the words, “in sudden heat and passion,” cannot be-considered as having at all prejudiced the defendant.
¶6Judgment affirmed.