The death penalty was inflicted. There was ample proof tending to show that defendant acted under a heat of passion. These facts find no reference in the oral charge of the court, and, indeed, the charge makes no reference to the degree of homicide in which such testimony was applicable. There were no instructions whatever upon this phase of the case. We recognize the automatic appeal statute does not require a review of the oral charge without exception reserved. But when we view all the facts in connection with this vital omission from any instructions and *Page 363 the infliction of the extreme penalty of death, we are persuaded the verdict rendered is contrary to the preponderance of the evidence, and that our original conclusion, that defendant was due a new trial, is correct.
The application for rehearing is overruled.
All the Justices concur, except LIVINGSTON, J., who dissents, as indicated.