*602On Motion for Rehearing.
White, Presiding Judge.We have carefully re-examined the record in this case in connection with the appellant’s motion for rehearing and the able argument of counsel in support of the same. There is but one-question which we deem it necessary to reconsider.
As before stated, the court submitted to the jury in its charge the law of murder in the first and second degrees. Appellant objects to the charge-on murder of the first degree, and claims that the court erred in charging the jury the law of murder in the first degree for the reason “that the evidence in the case did not call for nor warrant a charge on that grade of homicide; and the charge given on that subject was calculated to mislead the jury, and laid undue stress on murder in the first degree and did in fact prejudice defendant’s rights.”
Defendant was found guilty of manslaughter, and in our opinion heretofore rendered in alluding to this assignment of error we dismissed this subject with the remark that, “in.so far as murder of the first or the second degree is concerned, all such questions are eliminated by the fact, that, defendant has been convicted of manslaughter and not murder.” 0in-attention has been called to the fact that this statement is incorrect in-view of the manner in which the question is presented in the record., This portion of the charge is specially excepted to, as shown by defendant’s thirteenth bill of exceptions.
The rule is that the charge must be applicable to and limited by the-evidence; and furthermore, that a charge which has no application to¡ any evidence adduced on the trial is erroneous and calculated to confuse-the jury and mislead them, and it is radical error for the court to assume and charge upon a theory not raised or indicated by the evidence. Willson’s Crim. Stats., sec. 2347.
Again, it is well settled that “if the error, however immaterial it may be, is promptly excepted to, and presented by a proper bill of exceptions on appeal, the statute (Code Crim. Proc., art. 685) is mandatory that the conviction shall be set aside without inquiry as to the effect of such error upon the jury.” Willson’s Crim. Stats., sec. 2363.
Under these rules, and the manner in which the question is presented,, the fact that defendant was convicted of manslaughter does not eliminate the question as to the authority of the court to charge upon murder of the first degree in this case.
As to the law as presented upon this degree of murder we think it sufficiently full, comprehensive, and explicit, and not objectionable for any reversible error.
It then remains to be seen whether such a charge was called for or authorized by any evidence in the case.
*603There were two theories in the case as made by the evidence. One that defendant went out of the theatre upon the invitation of deceased with his deadly weapon upon his person, if not in his hand, and with the purpose and intent of using it in the combat to which he was invited. The other was that he went out merely to engage in an affray. If the former theory was correct then his crime was murder; if the latter it was manslaughter. "Under the facts the issue of murder in the first and second degrees was clearly raised and the court did not err in submitting these issues.
We have found no sufficient reason to warrant us in setting aside our former judgment of affirmance in this case, and the motion for rehearing is overruled.
Rehearing refused.
Judges all present and concurring.