Marshall

The defendant, having been convicted.of murder in the second degree, appeals from the judgment.

The only error assigned is the giving of the following instruction: “Under the information in this case, this jury may, if the evidence warrant it, find the defendant guilty of murder in the first degree, murder in the second degree, or manslaughter. Should the jury entertain a reasonable doubt as to which of the grades of crime named the defendant may he guilty of, if any, they must give the defendant the benefit of such doubt, and acquit him of the higher offense. Should the jury have a reasonable doubt.as *71 to the defendant being guilty of the two degrees of murder, and manslaughter also, as just mentioned, they must acquit.”

The argument of counsel is in effect that the jury must have understood from this instruction that if they were in doubt whether defendant was guilty of murder of the first degree, or murder of the second degree, or manslaughter, they should convict of murder in the second degree. We do not think the instruction could have been so understood by the jury. It may not have been as clear in favor of the defendant as he would have had a right to demand, but if he…