Baldwin, J. concurring.
The defendant was convicted of murder in the first degree. Every circumstance connected with the commission of the offense, and tending to give character to the act, was a proper subject of consideration by the jury. The ownership of the property, the injury to which was the immediate cause of the difficulty, was important for the purpose of showing the mental condition of the defendant, and the motives which prompted his action. The homicide was committed while the deceased was in the act of injuring the property, and upon what ground the Court refused to permit the defendant to go into the question of ownership, we are at a loss to determine. We think no authority can be found to sus*354tain the action of the Court in this respect. The admissibility of the evidence, and its effect when admitted, are very different questions. It may not have amounted to a justification, but it was nevertheless admissible for the purpose of showing the condition of the prisoner’s mind, and determining the character of the offense. It was a part of the res gesta, and should have been submitted to the jury, subject, of course? to the instructions of the Court as to its legal effect.
Judgment reversed, and the cause remanded for a new trial.