concurring.
I concur in the judgment of reversal, but not upon the grounds assigned in the opinion. I prefer to base my conclusion upon the ground that defendant has not had an *37unprejudiced trial. He had been grievously wronged. His home had been invaded and ruined by one who by every tie of kindred should have been ready to fight, if need be, in its defense, and for its sacred preservation. When the destroyer Avas confronted by'his hapless victim, instead of humbly imploring forgiveness, he met his just accuser with taunting language Avliich I do not think one man in a hundred, under the circumstances., could have resisted. I am not defending the “unAvritten law.” But I am not willing to hold that the killing of a man under the circumstances shoAvn in this case is murder in the first degree. To hold that it is a greater crime than manslaughter is to shut our eyes to the laws of nature and the irresistible inborn tendencies of man. That the jury found the defendant guilty of murder in the first degree forces the conclusion in my mind that they were either influenced by prejudice, or did not fully comprehend their duties as outlined in the instructions of the court. In either case the defendant should be given the opportunity of presenting his cause to another jury.