¶1delivered the opinion of the court.
¶2We are not satisfied with the second instruction for the state, as applied to the facts of this case.. It is too broad. The main inquiry was as to the identity of the slayer, and the proof of identity is extremely meager.. . Identification by recognition of voice is enough, if it be perfectly clear, and what is said amounts to confession. The testimony is very scant on these points in this case. In this close case we think the jury may have been misled by this charge. It does not, like the charge in Bishop’s case, 62 Miss., 289, say that, “if the jury believe beyond a reasonable doubt that defendant shot and killed deceased, and did not have reasonable ground to apprehend death or great bodily harm at the hands of the deceased,” etc., “then,” etc. This was not a case wherein circumstances of excuse or justification were shown by either side. Indeed, the circumstances of the killing are wholly unknown, except as to the weapon supposed to have been used. Who. killed the deceased ? *288was the question. In all three of the cases cited by the state Bishop v. State, 62 Miss., 289; Hawthorne v. State, 58 Miss., 778, and McDaniel v. State, 8 Smed. & M., 401 (47 Am. Dec., 93) — there was no doubt as to who did the killing. We think the language of this instruction, under the peculiar facts of this case, may well have been understood by the jury as intimating that the defendant did the killing, when that very fact was the pivotal one in the case; and in this view the charge is clearly error.
¶3Reversed and remanded.