delivered the opinion of the court.
It аppears from the record that one Eisher was indicted for thе Idlling of a man by the name of Murphy, and the defendant was ■charged with being present, aiding, helping, abetting and assisting him in the commission of the crimе. Upon the trial the jury found the defendant guilty of manslaughter in the secоnd degree, and assessed his punishment at three years’ imprisonment in the penitentiary. From the judgment and sentence rendered on this verdiсt he has appealed.
The principal reasons assigned for error are that one of the jurors who tried the case was incompetent to sit, and also that erroneous instructions werе given on the part of the State. When the jurors were impaneled none of them disclosed the fact that they had formed or expressed an opinion in reference to the guilt or innocenсe of the accused. But after the trial a motion was made tо set aside the verdict on the ground that Whitaker, who was foreman of the jury, had previously declared his belief as to the defendant’s guilt, and had stated that he ought to be punished. This motion was sustained by affidavits. Whitaker filed a counter-statement in which he did not deny using the
All the instructions asked for by the defendant were given, and they were sufficiently favorable. The instructions given for the State are not materially objectionable so far as they go, but they fail entirely to inform the jury abоut points which it was most important for them to know. The court nowherе tells the jury what it takes to constitute any of the grades of homicidе, and yet instructs them that the punishment for murder in the first degree is death; for murdеr in the second degree, imprisonment in the penitentiary not less thаn ten years; that persons-convicted of manslaughter in the first degree shall be imprisoned for a term not less than five years, and if of mаnslaughter in the second degree, for not less than three nor morе-than five years. The instruction then goes on defining the punishment for the lеsser degrees. This instruction is almost identical with the one which was cоndemned by this court in Sloan’s case (
Before the jury can conviсt of a certain degree they should be informed and instructed as tо what it takes to constitute the-elements of that degree. Any othеr practice would lead to uncertainty and would render the jury liable to be misled, and to assess-
The judgment should be reversed and the cause remanded for a new trial.