Baldwin, J. concurring.

On the trial of this case, the Court instructed the jury that if the evidence of one of the witnesses was true, the defendants were guilty of murder in the first degree. This witness did not see the deceased after the commission of the offense, and his testimony did not establish the homicide. It is contended that there was no controversy upon that point, and that the Court was correct in assuming the existence of the fact. We do not know, nor can we ascertain, what particular matters were controverted before the jury, but we think the Court had no right to assume the existence of any fact not expressly admitted.

It follows that the judgment must be reversed, and the cause remanded for a new trial.