The opinion
On Application eor a Rehearing.
Breaux, J.
On reconsideration of the grounds upon which this-case was remanded we have concluded to adhere to them, and not to grant a rehearing.
The rule which has heretofore been laid down by the decisions of this court applies to cases in which the accused stands charged with murder.
In cases of that character, it is, in our view, the duty of the trial judge to charge the jury that they may return a verdict of guilty of manslaughter, if they should find that he is guilty of manslaughter and that he is not guilty of murder.
It is not left to the trial judge to determine whether the charge of manslaughter is a part of the law of the case; or whether, in other words, the facts call for a charge as to manslaughter.
The matter is left to the jury, who are to be instructed as before stated.
The error being fundamental because of the language of the statute in such a case only; we concluded to remand the case.
The rule is limited exclusively to cases such as the one before us. As relates to other crimes it does not apply. It is in that respect sui generis and does not apply in all cases; but we repeat it applies in cases in which the accused is tried for murder.-
Rehearing refused.