Hurt, Judge.
This is a conviction for murder of the second degree, the punishment being five years’ confinement in the penitentiary. The charge of the court is correct to the extent to which it goes. There was no error in refusing the motion for new trial, upon the grounds set forth in the motion, except as is hereafter pointed out.
The only question presented in this record is whether the evidence supports the verdict. To convict of murder the State must prove beyond a reasonable doubt that the homicide was committed in the absence of circumstances which reduce the offense to negligent homicide or manslaughter, or which excuse or justify the homicide. For murder is distinguishable from every other species of homicide, because the killing was in the absence of such circumstances as would reduce it to negligent homicide or manslaughter, or excuse or justify the killing. In the case at bar, the uncontradicted testimony of all the witnesses who speak to the fact not only fails to show the absence of the circumstances of reductions, but with great certainty and remarkable unanimity, considering the nature of witnesses, establishes the presence of such circumstances of reduction or justification. But it is urged by our assistant attorney general that, as the witnesses were related to defendant, their testimony should have been scrutinized closely by the jury. ■ This does not help the State, for the absence of the circumstances which reduce or justify must be shown to make out a case of murder. There is no conflict in the testimony of any of the witnesses bearing upon this point.
Again, it may be insisted that the jury had the right to believe the witnesses when they speak to the fact that defendant shot and billed deceased, but to disregard their testimony when they speak to the fact of the presence of the circumstances of reduction or justification or excuse of the homicide. The record fails to show a circumstance of the slightest suspicious character bearing upon the testimony regarding the presence of such circumstances of reduction or justification; and while it is true that the jury are the judges of the credibility of the witnesses, it does not follow that without grounds or reason they can discard and hold for naught at their will and pleasure the testimony of the witnesses, especially in a case in which there is no conflict nor suspicion cast upon their evidence.
We are not satisfied with the conviction because we think it is not supported by the evidence, and we will remand the cause for another trial. Wc would suggest that the learned judge upon another trial instruct the jury that defendant is not required to retreat. We are not to be understood that because of this omission in the charge of the court the judgment should be reversed, but we think under the facts of this case the above charge would be proper.
Because the court erred in overruling the motion for a new trial, the judgment is reversed and the cause remanded.
Reversed and remanded.
[Opinion delivered March 14, 1885.]