The opinion
Walker, J.,
concurring in result: My assent to the conclusion reached by the Court in this case is based upon the opinion, which I entertain, that there is some evidence of manslaughter. I cannot concur in the view taken by the Court in its opinion that a defendant in a criminal action can, under any circum-. *826 stances, be convicted of and punished for an offense where there' is no evidence to support the verdict, even though the offense of which he is convicted may be embraced by the general charge in the indictment, and may therefore be considered by the jury where there is evidence that will sustain a conviction. It is said that if the jury rejects the defendant’s plea of self-defense they should convict him of murder in the second degree, if there is no evidence of manslaughter. Conceding this to be- true, provided the jury have repudiated the plea of self-defense as unsupported by evidence, why is it not equally true that, as we know the jury have acquitted the defendant of murder, either in the first or the second degree, they should have acquitted him entirely if there had been no evidence of manslaughter? The conclusion that they should thus have acquitted him is, indeed, sustained by the better reason, for they have actually and certainly acquitted him of murder in any degree, and their refusal to acquit altogether may have been caused by the erroneous instruction of the court as to manslaughter. Can it be that, if there is no evidence of the offense for which the defendant has been convicted, the verdict can be justified, because he could have been convicted of a higher offense and the jury has merely failed to acquit him? In a prosecution for a homicide, where the jury acquit of murder, there are only two other verdicts they can render, namely, “guilty of manslaughter”- or “not guilty.” If there is no evidence of manslaughter, is it not more accurate to say that they should acquit, or is there a rule of law that they may convict of manslaughter, even though there is no evidence of that offense having been committed, merely because they could have convicted of the higher felony? I do not think so, and for this reason I ani unable to concur in all that is said in the opinion of the Court. I think that a conviction must be founded not alone upon the charge preferred in the indictment, but upon some evidence sufficient in law to establish it.