We recognize that proof of motive for a homicide is not indispensable to conviction, but when motive for such homicide of the grade of manslaughter is shown by the uncontradicted testimony of the accused and his wife, and their character for truth *Page 436 and veracity is in no way assailed, except by proof that he is under indictment for a felony which has not been tried and which was based apparently on facts discovered in the investigation of the instant homicide; and the only suggestion of a motive other than insult to the wife of appellant is that possibly a misunderstanding had arise over some liquor transactions, the inference of which misunderstandng rests entirely upon the fact that on the premises occupied by appellant but which belonged to deceased, were found a still and some corn, etc., claimed by appellant to be the property of deceased, this court finds itself in such condition of doubt as to whether the conviction for murder may not have arisen from some misapprehension as that upon more mature reflection and consideration of the forcible motion for rehearing and argument on behalf of appellant, we are unwilling to let this conviction stand. We think the procedure on the trial in the court below was not in violation of law, but on the sufficiency of the testimony to show murder and not manslaughter, we are so unable to satisfy our minds as that we feel compelled to conclude that the case should be reversed. We are not to be understood as saying that the evidence may not be strong enough to support a conviction for murder, but that the mind of this court upon an inspection of this record is left in such condition as that we are desirous that the evidence should be passed upon again by another jury of the country.
The motion for rehearing is granted, the affirmance is set aside, and the judgment is now reversed and the cause remanded.
Reversed and remanded.
ON STATE'S MOTION FOR REHEARING. October 17, 1923.