¶1(dissenting): The record shows that on the day of the tragedy, as well as on the preceding day, the plaintiff’s property rights were flagrantly) illegally and repeatedly violated, and that he was being grievously affronted and his property rights violated at the time of the killing. That these highly provocative and extenuating circumstances were insufficiently considered in the trial court is perfectly obvious from the nature of the verdict returned by the jury, for there was no evidence tending to show that the killing of Henry Hupp by Frank Hardisty was premeditated; and certainly there was neither accusation nor evidence that Hardisty killed Hupp while Hardisty was engaged in the perpetration of some other felony.
¶2Disregarding altogether the testimony of defendant and his wife which tended to prove excusable homicide, the evidence in the record fairly tended to prove defendant guilty of some degree of voluntary and culpable homicide of less gravity than murder in the first degree. To correctly determine just what degree of guilt attached to the defendant was exclusively the function of a jury under proper instructions, which the trial court erroneously declined to give. The record contains no substantial evidence to support a verdict of guilty of murder in the first degree as defined by the statute. (R. S. 21-401.) I therefore dissent.