(dissenting).
I dissent on the ground and for the reason that the court refused to instruct the *156jury on excusable homicide though requested by appellant.
Under Sec. 18-4012, I.C., homicide is excusable “When committed by accident and misfortune, * * * doing any * * lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent”.
This court has held that it is not error to fail to give an instruction on excusable homicide under Sec. 18-4012, I.C., where there is not sufficient exculpatory evidence to justify it and no request was made for such instruction. State v. Miller, 65 Idaho 756, 154 P.2d 147. See also People v. Aguilar, 140 Cal.App. 87, 35 P.2d 137. Neither reason has application here.
Generally in a criminal action the defendant is entitled to have presented instructions relating to his theory of defense for''which there is any foundation in the evidence, even though the evidence may be weak, inconsistent or of doubtful credibility; this-is so even though the only testimony adduced in support of such defense is that of the defendant. 53 Am.Jur., Trial, sec. 581, p. 458. Moreover this court has held that “ ‘A defendant is entitled to affirmative instruction applicable to his testimony based upon the hypothesis that it is true, when his testimony affects a material issue of the case’”. State v. Huskinson, 71 Idaho 82, 226 P.2d 779, 782, and the cases cited therein. See also State v. Rutten, 73 Idaho 25, at page 35, 245 P.2d 778.
In the light of this general rule I will consider the evidence adduced which, if believed, in anywise supports appellant’s, theory of excusable homicide. Appellant testified that on the particular night it was-dark and that there were no lights in the-immediate area where the collision occurred; that as a fact the nearest light to-the place where the collision occurred was some 120' away. There was also evidence-that at the time of the accident decedent was riding on the handlebars of a ’bicycle-being pedaled by Tom Fontes; the deceased was resting his feet on the nut on. either side of the front wheel; the boys-were traveling in the same direction as-appellant and were near the outside edge of the paved highway; the bicycle had no-mudguard or fenders; Tom Fontes was wearing a pair of blue levis and a dark blue sport jacket and deceased was wearing a blue jacket and blue trousers; there was a small reflector on the rear of the seat of the bicycle. Under the facts as disclosed by the record, appellant could not possibly see the reflector as it would be hidden from view by the sport jacket of the boy who was pedaling the bicycle. Appellant was driving a relatively new English car built close to the ground. He testified on this particular night he was driving between 35 and 40 miles an hour when one-half mile west of the point of impact; such a speed would 'be lawful at that point; that when he approached the driveway leading to the Soldiers’ Home, over which a light is sus*157pended, he reduced his speed and that in his opinion he was not going in excess of 30 miles an hour at any time thereafter; such speed would also be within lawful limits. He further testified that he was driving witth his lights dimmed and that just prior to striking the bicycle and the boys whom he had not at any time seen, he was blinded by the lights of a car going west with its bright lights on; that the car whose lights blinded him passed another car also going west with its lights on dim and that in passing around this car the bright lights of the second car momentarily blinded him and it was seconds later when the collision occurred.
On the testimony of appellant as above briefly related he was entitled to an instruction, where requested, submitting to the jury his defense that the homicide was accidental and occasioned by misfortune; his principal defense was that the homicide was excusable because committed by accident and misfortune in doing a lawful act by lawful means with usual and ordinary caution and without any unlawful intent; he is entitled to have the jury instructed upon any theory of the case which his evidence tends to establish. State v. Huskinson, supra; State v. Rutten, supra. Such rule has been recognized and applied in homicide cases with reference to an instruction on accident and misfortune. State v. Sumpter, Mo.Sup., 184 S.W.2d 1005; State v. O’Kelley, Mo.Sup., 213 S.W.2d 963; Johnson v. Commonwealth, 268 Ky. 555, 105 S.W.2d 641; State v. Budge, 126 Me. 223, 137 A. 244, 53 A.L.R. 241; Graives v. State, 127 Fla. 182, 172 So. 716. See also 41 C.J.S., Homicide, § 372, p. 158; 53 Am. Jur., Trial, sec. 524, p. 421 and sec. 627, p. 488.
The refusal to give the requested instruction on excusable homicide prevented the jury from considering the only substantial defense upon which appellant relied; we have no right to disregard it although we may believe there is ample evidence to sustain the verdict. The refusal to give this requested instruction constitutes prejudicial error. The judgment should be reversed and the cause remanded with instructions to the trial court to grant a new trial.