delivered the following, concurring specially, opinion:
I readily agree to the able discussion of Mr. Justice Harris and his conclusions upon the two questions treated by him in the foregoing opinion. I am not in accord, however, with his refusal to consider the assignment of error based on the Circnit Court’s instruction about manslaughter. The defendant’s exception rests upon the postulate that there was no evidence in the case to justify a verdict of guilty of manslaughter. Section 171, L. O. L., as amended by Laws of 1913, Chapter 332, declares the rule for framing a bill of exceptions thus:
“No particular form of exceptions shall be required. The objection shall be stated with as much evidence, or other matter, as is necessary to explain it, but no more; provided, however, that the bill of exceptions may consist of a transcript of the whole testimony and all of the proceedings had at the trial, including the exhibits offered and received or rejected, the instructions of the court to the jury, and any other matter material to the decision of the appeal.”
The amendment embodied in the proviso is not mandatory, and does not require absolutely that in all instances a full report of the proceedings and testimony shall be incorporated into or attached to the bill of exceptions. Moreover, we have ruled several times that a bill consisting of a verbatim rehearsal .of all the testimony will be considered only for the purpose of determining the correctness of the trial court’s decision on motions for nonsuit and directed verdict: Redsecker v. Wade, 69 Or. 153 (134 Pac. 5, 138 Pac. 485); Keady v. United Railways, 57 Or. 325 (100 Pac. 658, 108 Pac. 197); West v. McDonald, 67 Or. 551 (136 Pac. 650); Willis v. Horticultural Fire Relief, 69 Or. *471293 (137 Pac. 761, Ann. Cas. 1916A, 449); Abercrombie v. Heckard, 68 Or. 103 (136 Pac. 875); National Council v. McGinn, 70 Or. 457 (138 Pac. 493).
The bill of exceptions is, in effect, the authoritative statement that so much of the evidence as is necessary to explain the exception is included in the bill. The document would acquire no additional force from a certificate of the trial judge in so many words that it quoted all the testimony on the disputed point. We are not at liberty to assume that he has violated his statutory duty by leaving out some testimony necessary or helpful in explaining the defendant’s assignment of error. The cases cited by Mr. Justice Harris are not in conflict with this view when carefully analyzed. The sole question is: By what means shall the issue on the appellant’s exceptions satisfactorily be made to appear? The Code says by a bill of exceptions, in which is contained so much and no more of the testimony as may be necessary to explain the exception. We ought not to import into the statute an additional requirement, and demand that the trial judge shall in effect certify that he has not violated his official duty by omitting matters material to the issue on appeal, yet such is the effect of holding that, after he has made up the bill, he must go further and declare that all has been said and there is nothing more to be included in the statement. The presumption is that he regularly performed his official duty in compiling the bill. If, consequently, there had been anything else bearing upon the point involved, the judge, in duty bound, would have embodied it in the bill. I am of the opinion, therefore, that the document contains sufficient-data to require of us consideration and decision upon the propriety of giving any instruction about man*472slaughter. To hold otherwise is to invite the abomination of Plethoric bills of exceptions, which we have so often condemned, and which do so much to cloud issues and prolong litigation.
There are several kinds of manslaughter defined by our Code; Killing upon a sudden heat of passion, caused by an apparently irresistible provocation; death of a person caused by the negligence of the accused; assisting another to commit self-murder; producing abortion upon a pregnant woman; administration of a lethal drug by an intoxicated physician; and, in general, every killing of a human being not murder in any degree, if the same is not justifiable or excusable : Sections 1897-1902, L. O. L. Taking the bill of exceptions as authentic, there is no reasonable viewpoint disclosed from which we can discern any theory of the evidence meeting any Code definition of manslaughter. Taught by the record before us, the conclusion is plain that the defendant was either guilty of willful murder or was entitled to an acquittal. The instruction about manslaughter was a pure abstraction, not justified by any evidence. It invited the jury into the realm of mere speculation and guesswork. It disregarded the rights of the defendant, by exposing him to a danger not involved in the case, to wit, a haphazard verdict, without foundation in testimony. In addition to. numerous decisions that abstract instructions constitute reversible error, this court has applied the doctrine to cases of homicide in State v. Magers, 35 Or. 520 (57 Pac. 197); State v. Megorden, 49 Or. 259 (88 Pac. 306, 14 Ann. Cas. 130); State v. Caseday, 58 Or. 429 (115 Pac. 287).
For this additional reason, the decision of the Circuit Court in the instant case ought to be reversed.