Page:Dakota Territory Reports.djvu/484

 no premeditated design snch as is essential to constitute murder. On this point the judge's charge is as silent as the grave. No reference is made even to the distinction between murder and manslaughter, further than to read to the jury from the statutes. We think on a point so vital to the rights of the defendant, the Judge should not have contented himself with merely submitting to the jury the provisions of the Penal Code without note or comment. It is undoubtedly the duty of the Judge to give full instructions to the jury, covering the entire law of the case, as respects all the facts proved, or claimed by the respective counsel to be proved. Still, if he omits something, and is not asked to supply the defect, the party who remained silent cannot complain. But in this case, as the record discloses, the attention of the court was called to the direct point, and he was asked to rule upon it. And in a case of such momentous importance to the accused, where his life (for which a man will give all he has) hung trembling in the balances; where the evidence showed a sudden combat, (passion,) with so brief a time intervening until the fatal shot was fired; we cannot understand how the Judge, even without being requested, could pass the question by. Had the Judge, being on the ground, and seeing all the witnesses, and hearing all the evidence, decided there was not sufficient provocation, or that there had been sufficient cooling time; or had the question been left fairly to the jury under proper instructions, we might hesitate before disturbing the solemn judgment of death. But under all the facts disclosed by this record, we are of the opinion, and such is the judgment of this Court, that the judgment of the Court below must be reversed, and the cause remanded for a new trial.

, C. J., concurring.

, J., concurs on question of sufficiency of the indictment, but dissents on the other points.