delivered the opinion of the court.
A more unsatisfactory case, on the testimony, was, perhaps, never presented to an appellate tribunal. There was not a charge given on either side as to manslaughter, and yet, on the proof, we think there might have been properly a verdict of manslaughter.- We do not mean to say that a verdict of murder would be improper, on the testimony, if there had been no error of law; but, since a verdict of manslaughter might also be upheld, it was, in the distressingly conflicting state of the evidence, to the last, degree important that no error of law should have been committed. The third instruction for the state shut the jury up to a verdict of murder or nothing, and was, on the record, reversible error. The first instruction was also, in the state of the record, error, but, as it is nowhere assigned for error, we only notice it to preclude its being given again.
Judgment reversed, verdict set aside and cause remanded.