Eubanks

The defendant was convicted of murder in the first degree, and is under sentence of death. He appeals from the judgment therein rendered, and from the order denying a new trial. The main ground upon which he bases his contention for a reversal of the judgment and order is, that the court gave, in its charge to the jury, of its own motion, among other things, this instruction: “ Upon the issue of insanity, the evidence must he such in amount that if the single issue of the sanity or insanity of the defendant should be submitted to yon *296 in a civil case you should find that he was insane. In all other matters, except that of insanity, the defendant is entitled to the benefit of every reasonable doubt.”

The claim of the defendant is, to quote the language of his closing brief: “ The appellant does not claim that he is innocent. He does not claim that he ought not to. be punished. But he does claim that the facts in this case do not warrant a punishment of death; that he is only guilty of murder in the second degree, and if guilty of murder in the first degree, the death penalty should not be affixed. He bases this contention upon the proposition that, from the long and excessive…