On Rehearing.
PER curiam.Appellee moves the court to grant a rehearing in this case on the ground that this court erred in reversing the judgment of the circuit court therein on account of error in an instruction. That instruction was held to be erroneous because it told the jury what disposition would be made of the appellant in the event that he was found guilty. We still adhere to that opinion for the reason given in the opinion of the court and the additional reasons given in the dissenting opinion of Justice McCueeoci-i in this cause.
The majority of the judges are, however, of the opinion that the court may have given in instructions to the jury so much of section 6 of the act entitled “An act to establish a reform school for juvenile penitentiary convicts,” approved April 25, 1905, as is set out in the opinion, without indicating in any manner what disposition would have been made of the appellant in the event he was convicted. In that way the objections to the instructions given would have been avoided.
Appellee, in effect, contends that the punishment should have been reduced by this court to the minimum for manslaughter, instead of remanding the cause for a new trial. The reason given for this contention is that the evidence adduced in the trial m the circuit court shows that appellant is guilty, and that the latter course would save costs. In cases where a man’s life or liberty is involved the question of costs should not be considered or control. He should not be sent to the Penitentiary to save costs. It was within our discretion to reverse the judgment of the circuit court and remand the cause, instead of reducing the punishment. Vance v. State, 70 Ark. 285; Simpson v. State, 56 Ark. 19; Darden v. State, 73 Ark. 315, 321.
The fact that the evidence in the first trial was sufficient to sustain the verdict of the jury does not necessarily control our discretion. Other additional evidence may be adduced in a second trial.
Motion overruled.