Among the several assignments of error, brought up by defendant, the fourth and fifth, based upon exceptions five and six, directed to portions of the charge, when tested by decisions of this Court, appear to be well taken, and constitute error for which a new trial must -be granted. See S. v Glenn, 198 N.C. 79, 150 S.E. 663; S. v. Robinson, 213 N.C. 273, 195 S. E. 824; S. v. Bryant, 213 N.C. 752, 197 S.E. 530; S. v. Moore, 214 N.C. 658, 200 S.E. 427, and oases cited.
.The portions of the charge to which these exceptions relate are these: "But the count instructs' you that the defense of excusable homicide is not available; first, where one who has wrongfully assaulted another or committed a battery upon him and in consequence killed; or, second, where one has provoked the present difficulty by either language or conduct intended to bring about an assault; or third, when one who has committed a breach of the peace or engaged in an affray willingly in the sense of doing so voluntarily *319and without lawful excuse.” And, continuing: “When these elements or either of them appear in the case, the court instructs y-ou that the prisoner may not successfully maintain the position of a perfect self-defense unless he may be able to show you that, at the •time prior to the killing, he abandoned the combat and signified such act ito the adversary because in law he is said to have brought about, by his own act, the necessity of taking life.”
The vice pointed out in 'these assignments of error is, that though they may be free from error when applied to hypothetical situations, they are inapplicable to case in hand for the reason that the evidence introduced does not admit of the application of such principle. See S. v. Alston, 228 N.C. 555, 46 S.E. 2d. 567; S. v. Street, 241 N.C. 689, 86 S.E. 2d 277, and cases cited.
Indeed, in the Street case, supra, in opinion by Denny, J., the Court speaking of the provisions of G.S. 1-180 said: “The statute requires the Court, in both criminal and civil actions, to declare and explain the law arising on the evidence in the particular case 'and not upon a set of hypothetical facts.”
For other authorities see Strong’s N. C. Index to Criminal Law Section 107 — on subject that “An instruction which presents an erroneous view of the law or an incorrect application thereof, is prejudicial * * * .”
Other assignments of error point to exceptions to matters that may not recur upon the retrial. Hence it is not deemed necessary to elaborate on them.
For error pointed out there must be a
New trial.
Higgins, J., not sitting.