(dissenting) : The defendant in this case was convicted of murder in the first degree, which of course involves the unlawful killing of another with deliberate and premeditated malice aforethought. In view of the almost total lack of evidence on the part of the state to show that the homicide was deliberate and premeditated, and in view of the numerous errors which are fairly pointed out and discussed in the opinion, some of which I think were material and prejudicial to the defendant, I think that the motion for a new trial should have been sustained, and that the court erred in overruling it. In view of the violent character of the deceased, known to the defendant, the defendant’s account of what occurred immediately before the homicide would appear reasonable upon its face, and, if a revolver had been found upon the body of the deceased after his death, would appear very convincing. The circumstances disclosed by the evidence show that the defendant had no reasonable opportunity to know whether or not the deceased had a- revolver on his person at the time of the shooting.