Opinion. fore the jury. The record shows that during the argument of the case the court interrupted counsel for the defendant and stated in the presence of the jury that the court had refused to instruct the jury there was self-defense in the case. There was no error in this When the trial court had action of the trial court. decided that no question of self-defense was involved in the case, counsel had no right to make an argument before the jury contrary to the instructions of the court. In this State the jury are not judges of the law in criminal cases any more than they are in civil cases. Brown v. Com., 86 Va. 466, 10 S. E. 745; Muscoe's Case, 86 Va, 443, 10 S. E. 534. In the Brown Case, Judge Lewis quotes from Mr. Justice Story in United States v. Battiste, 2 Sumn. 240, Fed. Cas. No. 14545, as follows: "My opinion is that the jury are no more judges of the law in a capital or other criminal case upon a plea of not guilty, than they are in every civil case tried upon the general issue. In each of these cases their verdict in general is necessarily compounded of law and fact, and includes both. In each they must necessarily determine the law as well as the fact. In each, they have the physical power to disregard the law as laid down to them by the court. But I deny that in any case, civil or criminal, they have the moral right to decide the law according to their own notions or pleasure. On the contrary, it is the duty of the court to instruct the jury as to the law, and it is the duty of the jury to follow the law as it is laid down by the court. * If I thought that the jury were the proper judges of the law in criminal cases, I should hold it my duty to abstain from the responsibility of stating the law to them upon any such trial." The same view is maintained by the Supreme Court of the United States in Sparf & Hansen v. United States, 156 U. S. 51, 715, 15 Sup. Ct. 273, 39 L. Ed. 343. Opinion. [31] The fourteenth assignment of error is to the action of the court in allowing certain statements to be made by the prosecuting attorney in his concluding argument. There are two of these statements to which objection is made. The first is that the attorney for the Commonwealth said that the prisoner "never once testified that he did not make these other statements before Cherokee Bruce and " at which point counsel for the prisoner interrupted the argument and objected to the court on the ground that the record did show that the prisoner had denied the alleged statements claimed to have been made by him before the witness, Cherokee Bruce, to which objection of the prisoner's counsel the court replied, "That is a matter for the jury." There was no error in this ruling of the trial court. There was a dispute between counsel as to whether or not a certain statement had been made by the prisoner, and the court very properly said that whether or not such a statement had been made was a matter for the jury. If it had been desired, the argument could have been suspended long enough to refer to the notes of the testimony and verify what the prisoner had stated, but no such request was made, and in view of the situation there was no error in the ruling of the court. [32-34] The other objection was that the attorney for the Commonwealth, during his concluding argument stated to the jury "before a man can claim selfdefense he has got to retreat, and he cannot bring on the thing himself, and if he is in fault in doing that, that is no excuse, so there is no evidence here of selfdefense, and it is a clean cut proposition of shooting this man, and the only question that you have got to determine is whether or not it was first degree murder or second degree murder." The statement by the at Opinion. torney for the Commonwealth that the only question the jury had to determine. was whether or not it was murder of the first or second degree was merely an expression of opinion by him. It was not a statement of the testimony in the case but his deductions from what the testimony showed. The other part of the statement of the prosecuting attorney with reference to retreat could not have been prejudicial to the accused in view of the testimony in the case, if it be conceded that a bona fide retreat would have constituted a defense. The accused through his counsel had announced time and again that their defense was self-defense, and in the petition for writ of error in this case counsel say: "From this argument upon which the court placed its stamp of approval, the jury were plainly told that the prisoner could not plead self-defense in this case because the evidence showed that the prisoner did not retreat before firing the fatal shot-the fact being that the prisoner had no chance to retreat." And in the next paragraph of the petition it is said: "There was no dispute in this case that before firing the fatal shot the prisoner did not retreat." If there was no dispute about the fact that the prisoner did not retreat, we do not see how the prisoner was prejudiced by the argument of the attorney for the Commonwealth. In fact, if the prisoner could now rely upon retreat, after his repeated avowals that he did not rely upon a retreat, there is very little in the record which would justify any suggestion of retreat outside of the testimony of the witness, Anderson, whom the prisoner assailed from beginning to end as not being present at the shooting. If anything is left it is a mere scintilla of evidence on that subject. The scintilla doctrine has been repudiated in this State. Chesapeake & Ohio Ry. Co. v. Stock. 104 Va. 97, 51 S. E. 161. It is true that the disapproval Opinion. of the scintilla doctrine was made in a civil case, but it also applies with full force to criminal cases. In a civil case an instruction will not be given where there is so little evidence to support it that the verdict in favor thereof would have to be set aside for lack of evidence to support it. As a verdict of not guilty cannot be set aside, it would seem that the reason for refusing to apply the doctrine was, at least, as strong in a criminal case as in a civil case. The prisoner has had a fair and impartial trial by a jury free from objection or exception of any kind, presided over by a judge of great learning and large experience in criminal cases. He has been defended by able counsel who have been diligent in hunting up the evidence, and who have presented every defense that was in any way warranted by the testimony in the case. The ends of justice have been attained, and it only remains for this court to say that it approves the judgment of the trial court. Affirmed. Syllabus. Richmond. JOHN THACKER V. COMMONWEALTH. November 16, 1922. 1. ATTEMPT TO COMMIT CRIME-Elements of Attempt to Commit Crime.-An attempt to commit a crime is composed of two elements: (1) The intent to commit it; and (2) a direct, ineffectual act done towards its commission. The act must reach far enough towards the accɔplishment of the desired result to amount to the commencement of the consummation. 2. CRIMINAL LAW-Intent-Attempts-Presumption of Criminal Intent— Proof of Criminal Intent.-The law can presume the intention to commit a certain crime so far as such intention is realized in an act, but not an intention beyond what was so realized. The law does not presume, because an assault was made with a weapon likely to produce death, that it was an assault with the intent to murder. And where it takes a particular intent to constitute a crime, that particular intent must be proved either by direct or circumstantial evidence, which would warrant the inference of the intent with which the act was done. 3. CRIMINAL LAW-Criminal Intent-Proof of Criminal Intent.-When a statute makes an offense to consist of an act combined with a particular intent, that intent is just as necessary to be proved as the act itself, and must be found as a matter of fact before a conviction can be had; and no intent in law or mere legal presumption, differing from the intent in fact, can be allowed to supply the place of the latter. 4. ATTEMPT TO COMMIT CRIME-Specific Intent-General Malevolence.—To constitute an attempt to commit a crime, an act must be done with the specific intent to commit that particular crime. This specific intent at the time the act is done is essential. To do an act from general malevolence is not an attempt to commit a crime, because there is no specific intent, though the act according to its consequences may amount to a substantive crime. To do an act with intent to commit one crime cannot be an attempt to commit another crime, though it might result in such other crime. 5. HOMICIDE-Attempt to Commit Murder-Intent-Case at Bar.-In the instant case accused was convicted of an attempt to murder one R. It appeared that accused while intoxicated fired at a lighted lamp |