¶1delivered the opinion of the court.
¶2It was error to instruct the jury that it might find the defendant guilty of manslaughter. Such an instruction is, ordinarily, free from objection in trials for murder, because it is favorable to the defendant, who may not complain if a more favorable view is taken of his case than the facts justify, but in this case the issue was, who *320committed the act which caused the death? There could not be any difference of opinion as to the grade of the offence of the perpetrator. It was an atrocious murder, and while a verdict of guilty of manslaughter given by a jury, without instruction in such case, might not be set aside if the evidence justified conviction of murder, the jury should not be instructed to consider the grade of the offence when the sole inquiry is, who is guilty ? and there is no room for the inquiry, of what is he guilty ?
¶3The just objection to such an instruction in such a case is that it compromises the right of the accused to have the jury determine the single question whether or not he is guilty of the act which constituted the crime. The danger from such an instruction is that the jury may take license from it to find a verdict for manslaughter upon testimony on- which it would shrink from rendering a verdict of guilty of the higher crime charged. This was illustrated in this case, for the jury found a verdict for manslaughter upon evidence on which it was unwilling to convict of murder, and on which, in our opinion, no jury would or should find such verdict. If the evidence in such case does not warrant conviction of the charge of murder, it, of course, does not of manslaughter, for the question is not as to the grade of offence, but as to the connection of the accused with it, and. an instruction as to the grade of the offence is misleading and harmful.
¶4Reversed and rema/nded.