¶1The chief grounds relied on by the appellant are the giving of-instruction No. 7 for the state, and the admission by the court, over the objection of the defendant, of the testimony of Mrs. Callicoate, detailing the conversation with her husband set out in the record.
¶2As to the seventh instruction given for the state, we think there are two answers to the contention of the appellant: • First. The appellant was only convicted of manslaughter, and instruction No. 7, complained of, was a murder instruction. Second. The evidence of the defendant himself pretty clearly shows that it was his second shot which killed the deceased. This contention is therefore not sound.
¶3As tó the contention with respect to the admission of the conversation between Mrs. Callicoate and her husband, it is to be remembered that the whole conduct of the trial in the court below manifestly shows that the state was laboring to develop the theory of a “lying in wait and assassination.” Remembering this, and recalling the fact that the defendant is practically the only eyewitness to the material facts of the killing, and that he positively testified that when he fired the second shot the deceased was kneeling, facing him with his pistol in his hand pointed at him, we find ourselves unable to say that the admission of this testimony was not materially and fatally erroneous. It was, of course, manifestly incompetent, and it is not one of those cases in which we can rest in confidence upon the statement that no other verdict could reasonably have been reached if this conversation had been excluded, as it should have been.
¶4Reversed and remanded.
¶5The above opinion is adopted as the opinion of the court, and for the reasons therein set out the case is reversed and remanded.