
    Matthews v. The State.
   Fish, C. J.

1. The great weight of the evidence introduced by the State, if credible, tended to show that the accused was guilty of murder; the statement •' of the accused, who introduced no evidence, made to the jury, tended, if worthy of credit, to show that the homicide was justifiable; the jury could have found from some of the evidence for the State, considered ,in connection with a portion of the statement of the accused to the jury, that the accused and the deceased, while engaged in an angry altercation, both drew weapons, the former a pistol the latter a knife, and each willing and intending to fight, in hot blood and without malice, endeavored to use his weapon, on the other, and that the deceased was killed in such rencounter. It follows, therefore, that the court erred in not defining the offense of voluntary manslaughter, and in not instructing the jury as to the law of that grade of homicide applicable to mutual combat, as- presented by a timely written request on the part of the accused.

April 12, 1911.

Indictment for murder. Before Judge Edwards. Polk superior court. November 2, 1910.

B. B. Arnold, W. E. Spinks, and Mundy & Mundy, for plaintiff in error.

H. A. Hall, attorney-general, W. K. Fielder, solicitor-general, Bunn & Bunn, and Davis & England, contra.

2. The other requests to charge, in so far as they were legal and applicable, were fully covered by the instructions given.

Judgment reversed.

All the Justices ecnctlr.  