concurring specially. I concur in the judgment setting aside the verdict finding the defendant guilty of murder, and the sentence imposed upon him thereunder. I am of the opinion, however, that a valid verdict finding the defendant guilty of voluntary manslaughter was rendered in this case, to which verdict no exception was taken by the defendant. While the verdict finding him guilty of murder, and the sentence imposed upon him thereunder, should be set aside, the ease should be remanded to the court below, with direction to have the verdict rendered by the jury, finding the defendant guilty of voluntary manslaughter, entered upon the minutes, and sentence imposed upon the defendant in accordance with this judgment. The defendant can not rely upon the verdict finding him guilty of voluntary manslaughter as a valid verdict, having the effect to acquit him of the offense of murder, and then in the same breath treat said verdict as invalid as a finding that he was guilty of voluntary manslaughter. He *672ought not to be permitted to blow both hot and cold. This court has ample authority to give this direction. Civil Code (1910), § 6103 (2), 6205.