It has been held in numerous decisions with us that “Where on an indictment for murder there аre facts in evidence tending to reduce tbe crime to manslaughter, it is tbе duty of tbe presiding judge to submit this view of tbe ease to tbe jury, under a correct charge, and bis failure to do so will constitute reversible error, though tbe dеfendant may have been convicted for tbe higher offense.”
S. v. Merrick,
And from Foster’s case: “If it bad beеn clearly explained to tbe jury what constituted murder in tbe second degrеe, of which, through bis counsel, be bad admitted himself to be guilty, it may be that tbe jury would have coincided with that view; but in tbe absence of instruction •on that offense, with only tbe issue of murder in tbe first degree placed before them with instructions only as to that offense, with evidence of tbe homicide, it may well be that tbе jury held against tbe prisoner, that be was guilty, simply because they were not informed as. to the constituent elements of tbe lesser offense.” And Jones’ case, supra, is also rеferred to as a direct authority for tbe position as stated.
*692
In tbe present case, there were facts in evidence on tbe part of tbe defendant permitting tbe inference tbat tbe homicide was not intentionаl, but may have been tbe result of culpable negligence on tbe part of tbe defendant, and so amounting only to tbe crime of manslaughter.
S. v. Stitt,
A pеrusal of tbe record will disclose tbat not only is there no reference to tbe offense of manslaughter in the charge, but a special request for instructions presenting tbe question was refused or ignored by bis Honor, and for this error tbe issue must bе referred to another jury.
In Stitt’s case, supra, it was held, among other things, tbat: “Before a conviction for murder can be bad, an unlawful and intentional taking of another’s lifе must be shown or imputed, as is sometimes tbe case, by reason of tbe killing with a deadly weapon, or under circumstances which indicate a recklеss indifference to human life.”
And on tbe record tbe charge is objectiоnable further in tbat it gives to tbe jury no instructions pertinent to these respective positions or otherwise as to what may constitute either murder or mаnslaughter, and is not a sufficient compliance with the statute appliсable (Rev., 535), requiring tbat tbe court shall declare and explain tbe law appertaining to tbe facts in evidence.
Defendant excepts, аlso, for that the jury have rendered a general verdict of “guilty” without specifying tbe degree of tbe crime as directed by sec. 3271 of tbe Revisal.
"We hаve held in several decisions on tbe subject tbat a verdict of that kind may be considered a sufficient compliance with the statute when tbe degree of the crime can be clearly ascertained by reference to the evidence in the case and the charge of the cоurt
(S. v. Wiggins,
For the reasons stated, there must be a new trial of the case, and it is so ordered.
New trial.