The defendant has appealed from a conviction of manslaughter under an indictment charging him with murder in the first degree, wherein it is alleged that he killed one Timothy T. Murphy. In substance, the record shows that the defendant *Page 136 and decedent were owners in common of a band of sheep which they divided between themselves; afterward a dispute arose between them as to the ownership of a black sheep in the band in possession of Murphy, both claiming it. There were no eyewitnesses to the combat except the participants. It is admitted that the defendant was armed with a Luger pistol.
For the prosecution there was testimony from the decedent's brother that the deceased told him that the defendant had beaten him over the head with a pistol and that simultaneously, he said he was about to die, and immediately lapsed into unconsciousness, from which he never recovered. There was evidence to the effect that an autopsy disclosed that over each ear the flesh was bruised almost to pulp, more over the left than over the right, and that above and in front of the left ear was a depressed fracture of the skull in the temporal region in the shape of the letter U about a quarter of an inch across the base and about three eighths of an inch on the arms of the letter. Death was attributed to intracranial hemorrhage.
The defendant himself testified, in substance, that he went to demand the sheep and a quarrel ensued in which he charged Murphy with an attempt to steal the animal, whereupon the decedent called him a liar and immediately threw himself into an attitude as if to fight; that they engaged in a fist fight in which he knocked the decedent down twice, using only his fists; that Murphy declined to fight further, whereupon the defendant procured water for him and he washed his face; that they then walked together about a quarter of a mile toward Murphy's camp and at the same time in the direction where the defendant's *Page 137 sheep were being herded; that, nearing the decedent's camp, they again quarreled in about the same manner, when the deceased dropped the bridle reins of the horse he was leading, assumed a hostile attitude, whereupon the defendant again knocked him down, using only his fists. He denied having used the pistol in any manner whatever, contending that it was not out of its holster at all.
It is laid down in Section 1910, Or. L., that:
"The killing of a human being is excusable when committed, — * *
"2. By accident or misfortune in the heat of passion, upon a sudden and sufficient provocation, or upon a sudden combat, without premeditation or undue advantage being taken, and without any dangerous weapon or thing being used, and not done in a cruel or unusual manner."
The next section of the Code reads thus:
"Whenever, on a trial of a person indicted for murder or manslaughter, it shall appear that the alleged killing was committed under circumstances or in cases where, by law, such killing is justifiable or excusable, the jury must give a general verdict of not guilty."
The principal ground for the defendant's appeal is that the Circuit Court refused to give to the jury any instruction upon the subject treated by these sections. Among others to the same general effect, the defendant requested the court to charge the jury as follows:
"I instruct you that the killing of a human being is excusable when the same is accidental, or is the result of misfortune, or done in the heat of passion, or upon a sudden and sufficient provocation, or upon a sudden combat, without premeditation or undue advantage being taken, and without any dangerous weapon or thing being used, and not done in a cruel or inhuman *Page 138 manner. Therefore, gentlemen, in this case, if you find that the defendant and the deceased engaged in mutual combat in the heat of passion and no undue advantage was taken of deceased by defendant and no dangerous weapon was used by defendant in such combat, you must render your verdict for the defendant. Excusable killing means a killing in such manner and under such circumstances that the law imposed no punishment or penalty therefor."
This request and all others made by the defendant were refused by the court and no instruction was given on that aspect of the case. The defendant was entitled to such a charge under the sections of the statute above noted. The testimony of the defendant himself was sufficient foundation to authorize the court thus to instruct the jury, leaving the question of fact upon which it was based for the determination of the jury. It is well settled that either party has a right to a charge to the jury on his theory of the case if there is any testimony to which the same may be applicable as a principle of law. Such instructions under statutes almost precisely like our own have been approved in State v. Coff, 267 Mo. 14 (183 S.W. 287);Campbell v. State, 111 Wis. 152 (86 N.W. 855), and Ryan v.State, 115 Wis. 488 (92 N.W. 271). The authorities cited by the prosecution to the effect that academic instructions must not be given are not applicable to the instant case because, as stated, there was testimony to which the instruction tendered wasapropos.
Possibly by a slip of the tongue or owing to an erroneous report of the charge, error is apparent in a definition of murder in the first degree as stated in the charge but no further notice will be taken of the matter because under a previous decision of this court the defendant cannot hereafter be convicted of a *Page 139 greater crime than manslaughter: State v. Steeves, 29 Or. 85 (43 P. 947).
Other assignments of error are deemed unimportant and will not be discussed. For the fault, however, of refusing instructions relative to excusable homicide, the judgment is reversed and the case remanded for a new trial. REVERSED AND REMANDED.
McBRIDE, C.J., and BEAN and COSHOW, JJ., concur.