delivered the opinion of the court.
Lucy Brandon was plainly committed to jail, under § 1384 of the code of 1892, in the course of the trial, in the presence and hearing of the jury. In the very doubtfully balanced state of the testimony this is fatal error. Golden v. State, ante, p. 130. The tenth instruction for the state is misleading and erroneous. An unnecessary killing could not be predicated of appellant’s killing deceased, if at the time deceased had his pistol drawn and was killed by defendant to save his own life. *907The only felony deceased could have been attempting, on the testimony, was the killing of his father, and killing by appellant to prevent being killed, if the jury believed the witnesses for the defense, was not an unnecessry killing. As to the cross appeal, it is only necessary to say that the court properly refused the sixth instruction for the state. Herman v. State, ante, p. 340.
Judgment reversed, verchict set aside and cause remanded.