There is really no dispute about the main and controlling facts in this case. Whatever conflict exists pertains to minor details which could not and ought *Page 353 not to change the result. Suppose George did catch hold of the defendant's shirt and tear it while receiving the stabs which caused his death, under the evidence, it could have occurred at no other time. I fail to see how this fact, if such it be, tends to relieve the defendant, or to show an absence on his part of motive and deliberation. His declarations before the act and his written statements afterwards show quite conclusively what his motive and intentions were.
If this case was involved in any doubt, I should heartily join with my associates in the exercise of a discretion to award a new trial. But viewing the case as one in which the essential and controlling facts are without dispute, I think we should disregard the technical errors and defects pointed out and affirm the judgment.
VANN, J., reads for reversal of judgment and granting new trial; PARKER, Ch. J., O'BRIEN, BARTLETT and MARTIN, JJ., concur; HAIGHT, J., reads for affirmance of judgment, and GRAY, J., votes for affirmance.
Judgment reversed and new trial granted.