The defendant was tried in the district court for Brown county upon an indictment of the grand jury which charged him with the crime of murder in the second degree. In support of the charge, which contained the usual words, “but without premeditation and deliberation,” the trial court, over the objection of the defendant, permitted evidence tending to show a conspiracy on the part of the defendant, with other persons, to murder the deceased, and also evidence of the doings and sayings, in the absence of the defendant, of his supposed conspirators; in other words he permitted the prosecution to try the case in all respects as though the defendant had been charged with deliberation and premeditation in committing the crime, and had entered into a conspiracy with divers other persons, the result of which was the murder for which he was being prosecuted.
The court also in instructing' the jury stated to them the charge against the defendant upon which he Avas being tried, which charge purported to give the language of the indictment. It Avas first written upon a typeAvriter and contained the words “without deliberation and premeditation,” found in the indictment. The court erased those Avords, thus expressly telling the jury that the defendant was charged'with the crime of murder in the first degree, and Avithdrawing from the jury the information that the state had admitted in the most solemn form that the defendant had not used deliberation and premeditation, and therefore could not have conspired Avith others to commit the crime. Of course, such a conviction cannot be sustained. The defendant Avas entitled to have the jury plainly and correctly told the nature and legal effect of the charge that had been made against him upon which he Avas being tried, and this is especially true when the nature of the charge itself precluded the possibility of the existence of conditions peculiarly pre*290judicial to tlie defendant, conditions which the state strenuously insisted existed, and which the defendant strenuously denied.
Ordinarily competent evidence that tends to prove a material fact in issue is not rendered incompetent by the fact that it tends to prove more than is necessary to support the indictment, but this rule has no application in a case like this. The error in this proceeding is not predicated upon the proposition that, although the evidence tended to prove the malicious killing of the deceased, it was rendered incompetent simply because it tended likewise to prove deliberation and premeditation. In this case, the state solemnly admitted that there was no deliberation and premeditation, and this fact was not only purposely withdrawn from the jury, but the case was in all respects tried as though no such admission had been made.
In State v. Boyle, 28 Ia. 522, the indictment failed to charge deliberation. For that reason it was held insufficient as a charge of murder in the first degree. The trial court, however, considered it sufficient for that purpose, and tried the defendant upon that theory. The jury found the defendant guilty of murder in the second degree, which was sufficiently charged in the indictment. It was held that to try the defendant as though he were charged with murder in the first degree, when the indictment was insufficient for that purpose, was prejudicial to the defendant, and although he was convicted of murder in the second degree only, which was sufficiently charged, the judgment could not be sustained.
In so ruling the court followed and approved the case of State v. Tweedy, 11 Ia. 350. In that case the defendant was put upon trial.for a crime of which he had been acquitted upon a former trial, and was convicted of a lesser crime, and the court held that the conviction could not stand, because of the fact that he was erroneously tried for the greater offense. These cases are not precisely in point here, but, for similar reasons, the error in *291the proceedings in the present case is much more manifest.
2. The court instructed the jury: “Where a man in the lawful pursuit of his business is attacked, and where from the nature of the attack, there is reasonable ground to believe that there is a design to take his life, or to do him great bodily harm, and the party attacked does so believe, then the shooting of the assailant under tsuch circumstances will be excusable or justifiable, although it should afterwards appear that no injury was intended and no real danger, existed.” The vice of this instruction will be more apparent upon consideration of the condition of the evidence in this case. The defendant insisted, that he had been deputized by the sheriff to arrest the deceased, and that he was at the time therefore in the “lawful pursuit of his business.” The state as strenuously insisted that he was not properly deputized, that the attempted appointment by the sheriff gave him no authority whatever, and that he was therefore a trespasser and not in the lawful pursuit of his business. In this condition of the evidence, this instruction informed the jury that, if they should find that the defendant was not properly deputized, then they must find that he was not entitled to the right of self-defense, which clearly is not the law. A trespasser may defend himself against murder, and the fact that a man may be upon another man’s premises, and that he may mistakenly suppose that he is acting lawfully, will not justify the taking of his life.
It is said that this instruction is approved in the case of Coil v. State, 62 Neb. 15. It is true that a similar instruction was given in that case and that the conviction was affirmed. Whether the rule announced in that case should be approved, or should be repudiated, is not now the question, as this case is clearly distinguishable. There was no question raised, in the case referred to, as to whether the defendant was or was not in the lawful pursuit of his business at the time of the homicide, and there was possibly no danger that the jury might suppose *292that the defendant was placed in a position where he had no right to avail himself of the law of self-defense. The question here discussed was not insisted upon. And again, there was in the instruction given in that case a plain, comprehensive and correct statement of the defendant’s right of self-defense under the particular circumstances disclosed by the evidence. In the case at bar the court gave further and more particular instructions as to the right of self-defense under the facts in evidence, but that right was made to depend upon the defendant’s having actually arrested the deceased immediately before the killing, which was a disputed question, and the court refused a requested instruction which correctly stated the law.
3. Many other errors are assigned in the petition in error in this case, but as there must be a new trial, it is not thought advisable to discuss them.
For the reasons above given, the judgment of the district court is reversed and the cause remanded for further proceedings.
Reversed.