(dissenting.) The record shows without dispute that one Glenn Livermore engaged in a fistic encounter with the defendant Claude Shaver, and that the defendant executed a blow with his fist that proximately resulted in the death of Livermore. The defendant was indicted for murder, and upon the trial interposed a plea of self-defense. He was convicted of assault to do great bodily injury.
It appears that, on the forenoon of August 7, 1922, Liver-more, without apparent reason, committed a trespass against the defendant by throwing bricks through the window of the defendant’s home, cutting the window screens, breaking down the fence around the inclosure, and, after securing ingress through one of the broken windows, wrecked the furniture in the home. About 3 o’clock on the afternoon of the same day, the defendant was informed of the commission of the trespass, and was further told that Livermore had a gun, and was looking for him. Shaver returned home, and proceeded to repair the damage, and, while in the act of rebuilding the fence, Livermore and his wife walked past, on their way to a store, for the purpose of purchasing some cigarettes. On their return, they walked on the same side of the street on which the Shaver home is located; and as they passed the house, some words were exchanged, and an altercation took place, resulting in a fist fight, in which Livermore was knocked down by the defendant, his head striking the sidewalk, causing his death a few minutes thereafter.
But one error is assigned, and but one proposition is sub*1046mitted on this appeal: Did the trial court err in submitting to the jury, under■ the circumstances of this case, the included offenses, to'wit: (1) Assault with intent to commit murder; (2) assault with intent to commit manslaughter; (3) assault with intent to do great bodily injury; (4) assault and battery; (5) simple assault?
Under the instant record, the trial court would have been clearly justified in withdrawing from the consideration of the jury the crime of murder as charged, and also the included offense of assault with intent to commit murder. This should have been done; but with this phase of the case we are not concerned.
At the- very threshold of this opinion, the question naturally arises: What relation, if any, have the provisions of our statute.to the point in issue? Code Section 5406 provides that:
“Upon an indictment for an offense consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment, and guilty of any degree inferior thereto, or of an attempt to commit the offense, if punishable by indictment.”
. Code Section 5407 provides that: >
, “In all other cases, the defendant may be found guilty of any offense the commission of which is necessarily included in that with which he is charged in the indictment. ’ ’
Under the circumstances of the instant case, do these provisions govern or furnish a deciding principle? We answer, “No.” The reason is that, if the evidence, as in the case at bar, shows that the defendant is either guilty of the crime charged or. of a crime not a mere degree of the higher offense, the quoted statutes find no application. We have frequently so held, and it is a sensible rule, to which we should adhere. The principle is expressly affirmed in State v. Sterrett, 80 Iowa 609, in which it is said: “The defendant is either guilty of manslaughter or not guilty of any crime.” Manslaughter is a substantive crime, and not a mere degree of murder. In the case at .bar, the evidence warranted the submission of the crime of manslaughter, and none other.
Manslaughter is not defined by statute. The definition accepted in this state for fifty years is that it is the unlawful *1047killing of another without malice, express or. implied, either unlawfully, upon sudden quarrel and upon reasonable provocation, but without legal excuse, or unintentionally, while the slayer is in the commission of an .unlawful act not amounting to a felony. State v. Abarr, 39 Iowa 185; State v. Walker, 133 Iowa 489. It is essentially a crime of result, not intent. It is the fact that death results from an unlawful act that constitutes manslaughter.
If the defendant was engaged in the commission of an unlawful act, as the jury, by the verdict of guilty of an assault with intent to inflict a great bodily injury, found, and death resulted from that act, the fatal result made his crime not less than manslaughter. If his act-was unlawful and was not justifiable on the ground of self-defense, he is. answerable for-, the fatal result, no matter whether his intent was to commit a mere battery or a more serious injury. The only thing that would relieve him from criminal responsibility for the resulting death would be a failure to find that his act was unlawful. If -his act was not unlawful, he committed no crime.
There is no doubt of the propriety and necessity, of instructing on offenses lower than manslaughter where there is a question whether death resulted, not from the act of the. defendant, but from some intervening cause. That, however, was not' the situation in this case. Whether it is necessary or proper for a trial court in any case to instruct the jury as to offenses included within the major crime charged in the indictment depends upon the facts in evidence. State v. Mahan, 68 Iowa 304. No rule, is better settled than that an instruction should not be given upon a theory to which the evidence affords no support whatever. State v. Cole, 63 Iowa 695. We recognize that there are cases in which the jury should be privileged to find the defendant- guilty of an included offense, although the evidence might support a verdict for a higher offense and we would not be justified in disturbing the finding of a lower degree, or of an .included offense. In such cases it may be said that the jury -dealt, too leniently ^with him, but of this it does not lie in the mouth of the defendant to complain. State v. Dimitt, 184 Iowa 870. The point we emphasize is that the ease at bar is not such a ease. The parties to the fight were in mutual combat when the mortal blow was given. It constituted a homicide. Every homicide is *1048either felonious or nonfelonious. If felonious, it constitutes ' either murder or manslaughter. Livermore was killed. He was killed by the defendant. This much is admitted, and must be conceded. Livermore’s death was not accidental. No independent or intervening cause of death is shown, nor is such intimated in the evidence or contemplated by the court’s instruc-' tions. The defendant admittedly struck the fatal blow. It was intentionally done, and the gist of the offense is whether the blow constituted an unlawful assault. The defendant, therefore, is guilty of a homicide; and if the assault was unlawful, he is criminally guilty, and the offense is at least manslaughter. This charge was properly submitted to the jury, and the jury by its finding said he was not guilty, and consequently was not guilty of an unlawful assault. The defendant pleaded self-defense, and it was the only theory upon which the jury could have acquitted him of manslaughter. Having acquitted him of the only offense which the evidence warranted a submission, he is exempt from all criminal liability, and must be deemed to be innocent and guiltless of any crime. The plea of self-defense does not traverse the averments of doing the act charged, but confesses and seeks to justify the act as lawful. The plea of self-defense is consistent with an intent to do great bodily injury. The plea excuses, rather than fixes the degree of homicide, and if established, entitles the accused to a full acquittal. State v. Castello, 62 Iowa 404. We repeat that, under the evidence in this case, there was no warrant for the submission of any crime except manslaughter.
In State v. Parker, 66 Iowa 586, the indictment charged murder. ' The evidence warranted a finding that the deceased was assaulted, but that the death was caused by disease,- — -an independent cause, — and the jury so found. However, since the evidence disclosed an assault which had no relation to the death, a verdict of assault to do bodily injury was returned. The Parker ease is clearly distinguishable in principle, and also on the facts, from the instant case. The opinion reads
“Now, if the jury found that the death resulted, not from the assaults and treatment received from defendant, but from disease, and also found that defendant did assault the child with *1049an intent to inflict a great bodily injury, their verdict is authorized by the law.”
In the case of State v. Cody, 94 Iowa 169, there was a conviction for simple assault, on an indictment for assault to do great bodily injury. The evidence clearly shows an assault, was committed, and under such circumstances, it was for the jury to determine the grade or degree of assault. This case furnishes no precedent contrary to the conclusion on the facts in the case at bar. Upon only one assumption can the Parker ease be said to have any bearing in the instant case, and that is to predicate the homicide on a cause independent of the blows given by the defendant Shaver. The evidence does not warrant such an assumption. The blow was the producing cause.
It is suggested by counsel for the State that, had the court failed to instruct on the included offenses, and the jury had found the defendant guilty of manslaughter, he would now be contending in this court that the- included offenses should have been submitted. This suggestion has no legal value. Had the jury convicted him of manslaughter, the only question would involve the sufficiency of the evidence to sustain the verdict. State v. Munchrath, 78 Iowa 268.
I would reverse.
VerMilion, J., concurs in this dissent.