concurring.
The testimony tends to show that the fatal shot was fired by Russell Kelley, the son, and that it was not fired by Charles Kelley, the father. As the deceased was advancing in the direction of the defendants with his gun when the shooting began, and as it is not *189clear that Russell Kelley shot the deceased at the instance of Charles Kelley, the acquittal of Russell Kelley may have been upon the theory of self-defense, which has some support in the evidence and not upon the theory also included in the charges given that if Russell Kelley acted not of his own volition but “by direction and because of a fear of his father, the crime is that of the father and not of the child.” If Russell Kelley fired the fatal shot, not at the instance of Charles Kelley or unlaw-' fully, but in lawful self-defense, the conviction of Charles Kelley is erroneous. The nature of the testimony in vital particulars warrants a new trial for Charles Kelley.