I dissent. The jury are specifically instructed that if the defendant inflicted a mortal wound without malice and without considerable provocation, and there was no justification, they must find him guilty of murder. This error is not cured by any number of other instructions defining murder. It is error to give contradictory instructions. The jury cannot determine between them, nor in this case can we tell which they accepted. Besides, it was telling the jury that they must find the defendant guilty if he inflicted the mortal wound, and there was no considerable provocation, notwithstanding these definitions; or, perhaps, it was an instruction to the effect that if there was no considerable provocation, as matter of law the killing was deemed to have been done with malice aforethought. This, I think, is the reasonable and natural construction of the instructions on this subject taken together. Of course, the jury is bound to accept all as correct.
It has been held, and I think properly, that when some essential qualification is omitted from some particular instruction, the case will not necessarily be reversed if the omitted qualification is supplied elsewhere, but if essentially contradictory instructions are given, it must certainly be error.
At best, the jury were told that if defendant killed deceased, he is guilty of .murder or manslaughter, depending upon whether the provocation was considerable or not.