dissenting:
I can not concur in the opinion of the majority of the court.
There was enough in the circumstances in evidence to make it fairly questionable whether the homicide was not committed under provocation and in the heat of passion. Such being the ease, the first instruction asked by the public prosecutor, and given by the court, was objectionable. It purports to incorporate facts, but excludes everything that might be urged on behalf of the accused, and does not require those hypothetically submitted to be found true beyond a reasonable doubt, and there is nothing in any instruction on, behalf of the people to cure the defect.