The respondent was tried upon an information charging him with having feloniously, willfully and of his malice aforethought killed and murdered one George Fuller. The evidence was circumstantial. While it tended to show that the crime charged had been committed by the respondent, and while the jury might under proper instructions' have found the respondent guilty of murder in the first degree, yet we think the court erred in charging the jury that their “verdict should be either guilty of murder in the first degree, or not guilty.” There was no claim or pretense that the murder if committed was perpetrated by means of poison, or lying in wait. If there had, perhaps the charge given might have been proper. There were facts from which the jury might have found that it was a willful, deliberate and premeditated killing, but this was a question for them to determine, from all the evidence in the case. It may have been a sudden affray, or in self-defense that the fatal blow was struck, and although the court may have been of opinion that such was not the case, yet it *412still remained a question for the jury to determine under all the facts, and they certainly may have found that the crime committed was not in the same degree as the court assumed.
It was claimed here that there was no evidence sufficient to justify the respondent’s being held to answer the offense charged, and that he should therefore be discharged. We are of a contrary opinion. It is the clear duty of the officers of the law to submit this case to a jury.
Judgment reversed and new trial ordered.
The other Justices concurred.