
    1553.
    Freeman v. The State.
   Hill, C. J.

1. Where a defendant was on trial for murder and his sole' defense was that the homicide was justifiable, and there was no contention on his part or by his counsel that the jury could find him.' guilty of the offense of voluntary -ipanslaughter, it was error to charge: as follows: “The defendant claims that he is not guilty of any offense. He also contends that if the jury should not find him guiltless of the: crime of murder, that he is not guilty of any higher crime than that-of voluntary manslaughter.”

(a) This charge was an incorrect statement of the contention of the defendant.

Conviction of manslaughter, from Lincoln superior court— Judge Worley. November 14, 1908.

Argued January 14,

Decided January 27, 1909.

W. A. Harnesberger, T. II. Remsen, John T. West, for plaintiff in error.

Thomas J. Brown, solicitor-general, David W. Meadow, contra.

(5) It was calculated to mislead tlie jury, and contained an intimation that the defendant admitted that he might be guilty of voluntary manslaughter, whereas he contended that his act was entirely justifiable.

Judgment reversed.

Powell, J., dissents.  