
    [No. 3261.
    Decided January 10, 1900.]
    The State of Washington, Respondent, v. M. R. Dunn, Appellant.
    
    ASSAULT AND BATTERY — INSTRUCTIONS.
    In an action for assault and battery, where the defense is self-defense, an instruction which charges the jury that “if you believe from the evidence beyond a reasonable doubt, that the prosecuting witness was the first aggressor” and “that such striking and beating was only for the purpose of repelling the assault of the prosecuting witness and that no more force was used than was necessary to repel such assault from the prosecuting witness,” then the defendant is not guilty, is erroneous, for the reason that if the jury had a reasonable doubt as to who was the aggressor, and had a reasonable doubt as to whether the appellant used more force than was necessary to repel the assault, if one was made on him, it was their duty to acquit.
    APPEAL — RECORD-CONCLUSIVENESS OP JUDGE’S CERTIFICATE AS TO EVIDENCE.
    When the trial court has certified that the record contains •so much of the “facts, matters and proceedings heretofore occurring in said cause” as is material to an appeal from the final judgment, the appellate court must accept the certificate as true and must determine from the evidence transmitted whether or not error committed on the trial was prejudical.
    
      Appeal from Superior Court, Whatcom County. — Hon. Hiram E. Hadley, Judge.
    Reversed.
    
      Dorr & Hadley, for appellant.
    
      A. E. Mead, Prosecuting Attorney, for the State.
   The opinion of the court was delivered by

Fullerton, J.

The appellant was informed against jointly with one Erank E. Black, by the prosecuting attorney of Whatcom county, for the crime of assault and battery, charged to have been committed on the person of one John Broyles. A trial was had before the court and a jury, resulting in a judgment of conviction against the-appellant, Dunn, and the acquittal of Black. The defense was self-defense. The appellant contended, and introduced evidence tending to prove, that Broyles was-the aggressor, and that he used only such force in repelling the assault made upon him by Broyles as was necessary to protect his person. On this branch of the case-the court instructed the jury as follows:

“ If you believe from the evidence beyond a reasonable doubt, that the prosecuting witness in this case was the first aggressor in any controversy which you may find from the evidence to have taken place between the prosecuting witness and the defendants, then, if you find that the defendants did strike and beat the prosecuting witness, but that such striking and beating was only for the purpose of repelling the assault of the prosecuting witness and that no more force was used than was necessary to-repel such assault from the prosecuting witness, and that such force was necessary in the self-defense of their persons, then you are instructed that the defendants are not guilty and such striking and beating on their part would be a lawful striking and beating.”

To give this instruction was error. It was not necessary for the jury, before they would be warranted in acquitting the appellant, to find beyond a reasonable doubt that the conditions described by the court existed. If the jury had a reasonable doubt as to who was the aggressor, and, following that, had a reasonable doubt as to whether the appellant used more force than was necessary to repel the assault, conceding that Broyles made one upon him, it was their duty to acquit him, and they should have been so instructed. State v. Conahan, 10 Wash. 268 (38 Pac. 996).

The learned counsel for the state earnestly insists that the error was such as not to prejudice the rights of the appellant or warrant a reversal, for the reasons (1) that the error was cured by the remainder of the instructions of the court to the jury; and (2) that the appellant has seen fit to bring into this court only a part of the evidence introduced at the trial, and as this court cannot, without a review of the whole evidence, determine that the error was prejudicial, it will not presume it to be so, on the principle that error is never presumed. After a careful examination of the charge of the court, we find nothing upon this branch of the case other than the part excepted to. The appellant did not deny that an affray occurred, or that he struck and beat the prosecuting witness. He admitted this, and undertook to justify his acts by showing that he was first attacked, and that such striking and beating was necessary in defense of his person. He was thus entitled to an instruction pn this branch of the case, which correctly stated the law applicable to such facts, assuming them to be true. This the court did not give. As to the other contention, the court has certified that the record contains so much of the “facts, matters and proceedings heretofore occurring in said cause” as is material to an appeal from the final judgment. This court must take this statement as true. It must determine from the evidence transmitted here whether or not the error was prejudicial, and is precluded from indulging in presumptions relative thereto. The evidence transmitted shows a substantial conflict as to what the facts were on the matters embraced within the excepted part of the court’s charge, and we cannot say that the verdict of the jury was the only verdict that could be legally rendered on the evidence before them.

The judgment is reversed and l’emanded, with instructions to grant the appellant a new trial.

Gordon, O. J., and Dunbar and Reayis, JJ., concur.  