The court then cites and quotes from two former Washington cases (State v. Kruger, 60 Wash. 542, 111 Pac. 769; State v. Pepoon, 62 Wash. 635, 114 Pac. 449), and goes on:

“Answering the rule of these cases, the state contends that, inasmuch as it is admitted that manslaughter is included in law in a charge of murder in the first degree, and as under our practice jurors are sole judges of the facts, the court cannot say, as a matter of law, there is no testimony to establish any of the lesser or included crimes, but must admit the legal inclusion and submit the inclusion in fact to the jury. This would be required where there was any fact or facts to be determined by the jury. But the court is not required to submit any determination of a fact to a jury when there is no fact, nor to permit a jury to establish by its verdict a fact which there is no evidence to sustain. * ** We are therefore of the opinion that it was error for the court to submit an instruction involving the crime of manslaughter."

In Pliemling v. State, 46 Wis. 516, 1 N. W. 278, the defendant was charged with murder in the first degree, and he was convicted of murder in the third degree. The court held that there was no evidence of murder in the third degree in the case and that the giving of the instruction on that degree was reversible error. The court said:

"Looseness and latitudinarianism in the con

struction of criminal law, and in judicial trials of grave offenses, and compromises of legal principles and of honest judgment, in order to effect some agreement or to render some verdict in the trial of high crimes or of offenses of any grade, induced by whatever influence, must not be tolerated by the courts; and the responsibility in such cases must rest upon the tribunal in which it is practiced or attempted. So far as possible, there should be absolute certainty in the administration of criminal law; and its essential principles will not be perverted or compromised by this court in any case, in consideration of future proceedings or ultimate

results."

We have made this somewhat extensive review of the authorities on account of the importance of the question, and also on account of the constant recurrence of the question before the court. It is of great importance to the district courts, who are constantly called upon to administer the doctrine under discussion. In the case at bar the result seems to be clear and irresistible. There was no evidence in the case under any possible con

struction, and no inference properly to be drawn, wherefrom the killing could have been found to have been involuntary. It was clearly error, therefore, for the court to submit such a false issue to the jury. It is to be observed in this connection, however, that the proposition is not quite so clear when the question is as to the submissibility of the issue of voluntary manslaughter in a murder case. The principle, however, must be the same in all cases.

The defendant has been acquitted by the verdicts in the two former trials of murder in the first and second degrees, and has been acquitted by the verdict in this case of voluntary manslaughter. Therefore he is now entitled to be discharged, as he cannot, under the facts, be convicted of involuntary manslaughter.

It follows from all of the foregoing that the judgment should be reversed and the cause remanded, with directions to set aside the judgment, dismiss the case, and discharge the defendant; and it is so ordered.

RAYNOLDS, C. J., concurs.
DAVIS, J., did not participate.

(Syllabus by the Court.)

1. Homicide 45-Mere words cannot reduce murder to manslaughter.

No mere words, however opprobrious or indecent, are deemed sufficient to arouse ungovernable passion, so as to reduce a homicide from murder to manslaughter.

2. Criminal law 745, 795(2)-Rule as to limitation of issues of degrees of crime same whether evidence circumstantial or direct; inferences from circumstantial evidence, capable of more than one interpretation, for jury.

The rule that the court should limit the issues to the degrees of crime shown by the evidence is the same in cases where the evidence is wholly circumstantial as where the evidence is direct. In the former class of cases, however, where the circumstances shown are susceptible of two or more interpretations, it is for the jury, and not the court, to draw the proper inferences from the evidence.

3. Homicide 309 (2) — Submission of issue of voluntary manslaughter erroneous where not involved in evidence.

It is reversible error to submit, in a murder case, the issue of voluntary manslaughter to the jury where no such issue is involved in the evidence.

L. S. Wilson, of Raton, for appellant.

H. S. Bowman, Atty. Gen., and A. M. Ed

wards, Asst. Atty. Gen., for the State.

PARKER, J. Appellant was indicted for murder of one Luke Casamoff, was tried and convicted of voluntary manslaughter, and was sentenced to a term of from nine to ten years in the state penitentiary. The case is here on appeal from that judgment.

The facts immediately surrounding the homicide are only circumstantially shown, there being no eyewitness to the tragedy. The deceased was found in the afternoon of the 21st of December, 1919, in his room at the side of a cot or bed with his head crushed

in on the left side by a blow received from a heavy instrument. An ax covered with blood was found right near the body. There was no evidence of any struggle at the time of the

homicide. Deceased's clothes were undone

that is, unbuttoned-but were not removed,

and his shoes were unlaced. He had been sitting upon the edge of the bed when he received the blow, the bedclothes having been turned down preparatory to his going to bed. Several days later the appellant was arrested, and he was wearing a coat which was taken by the sheriff to a chemist and criminologist in Denver, who testified that the coat had several blood stains upon it, and that the blood stains were of human blood. Several witnesses testified to seeing the deceased and the defendant in company of each other during the night preceding the morning when the homicide must have been committed.

One witness, Ivan Ramyak, was the most satisfactory witness as to the conduct and association of the deceased and appellant on the night previous to the homicide. He testified that at about a quarter after 12 of that night he went to the house of the deceased. He there found the deceased and the appellant. He says that they were quarreling, and that the deceased told the appellant that he (the appellant) had a wife and children and that he would not work; that, after taunting the appellant with the fact that he would not work to support his family, and stating that people of deceased's nationality worked, the deceased took out of his pocket a little bag of money, and showed it to the defendant, showing a considerable sum. He says that the deceased told him (the witness) that he would give him a drink if the defendant had not been there, and that the witness then told the deceased to come over to the witness' house and that he would give him a drink, and at the same time he told appellant to come along also. The three went to the house of the witness and remained there from a little after 1 o'clock in the morning to a quarter to 5 of the same morning, during which time they were drinking wine. The witness

soon as they left the house he shut the door and did not know where they went.

alibi. He testified himself, and he was supThe defense of the appellant was that of ported by his wife and his mother, that he went to his own house, and went to bed at

about 1 o'clock, and did not leave the house thereafter until late the following morning. At the close of the trial, the court, over the objection of appellant, submitted to the jury the question of the guilt of the appellant of voluntary manslaughter, and the principal contention here is that in so doing the court committed error, upon the theory that there was no evidence in the case justifying a submission of that issue to the jury.

[1] 1. The Attorney General relies, in support of the judgment, upon two propositions: (1) That there is evidence of adequate cause for heat of passion; and (2) that, as there was

no direct evidence of the immediate circumstances surrounding the homicide, it was not degrees of unlawful homicide to the jury. only proper, but necessary, to submit all the

Our manslaughter statute is as follows: "Manslaughter is the unlawful killing of a human being without malice. It is of two kinds: 1st. Voluntary: Upon a sudden quarrel or in the heat of passion. 2nd. Involuntary: In the commission of an unlawful act not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner or without due caution and circumspection." Section 1460, Code 1915.

As before seen, appellant was convicted of voluntary manslaughter, and consequently he must have killed deceased without malice and upon a sudden quarrel, or in the heat of passion, or the verdict was not supported by the evidence. There is absolutely no evidence in the record of a sudden quarrel. There is evidence of a quarrel some three and a half hours before deceased reached his room, where he was killed, but during that time deceased and appellant were together, and there was no quarrel between them. There is no evidence that the quarrel was ever renewed between them. The evidence likewise fails to show adequate cause for heat of passion. The most that appears is that deceased taunted appellant as being lazy and refusing to work to support his family. It is well established by the great weight of authority that no mere words, however opprobrious or indecent, are deemed sufficient to arouse ungovernable passion, so as to reduce a homicide from murder to manslaughter. 13 R. C. L. "Homicide," § 99; State v. Buffington, 71 Kan. 804, 81 Pac. 465, 4 L. R. A. (N. S.) 154. See, also, State v. Dickens, 23 N. M. 26, 29, 165 Pac. 850. In this connection we call attention to a minority doctrine recognized in England and a few states to the effect that it is the existence or nonexistence of sufficient passion, properly aroused, which is determi

and its true meaning can be ascertained only when considered in connection with the question before the court and what was really decided in that case. It was decided merely that, where the facts are only circumstantial ly shown, and they are susceptible of two or more constructions, it is not within the province of the court to determine which construction shall be put upon them, but it is for the jury to construe the facts to determine the degree of the guilt of the defendant. We do not understand the court to have held in that case that the jury is authorized in any case to put with the facts shown by the evidence other facts which are not shown by the evidence, and which exist only in their own imaginations, and thereby convict a man of an offense of which he is not guilty. There is no reason to say that the principle involved is any different in a circumstantial evidence case from a case in which the evidence is direct. The only difference as a practical matter is in the application of the principle. We have recently considered this question in State v. Smith, 26 N. M. 482, 194 Pac. 869, where all the New Mexico cases are collected. In that case the evidence for the prosecution was entirely circumstantial, and tended to show murder in the first degree accomplished by shooting by lying in wait. The evidence for the defendant tended to show killing in self-defense. The court, over the objection of the defendant, submitted second degree murder, and the defendant was convicted in that degree. Mr. Justice Raynolds, speaking for the court, analyzed our statute and pointed out the distinctions between the two degrees of murder. We held under the facts in that case that it was proper to submit murder in the second degree, because the jury had the right to discard the evidence of the state as to lying in wait and deliberation, and likewise to discard the evidence of the defendant as to self-defense, and to find from the evidence the premeditated malice which made the act murder in the second degree. There seems to be, therefore, nothing in .either of the two contentions of the Attorney General above mentioned.

[3] 3. We have, then, a case where a man has been convicted of voluntary manslaughter, and where there is no evidence showing, or from which an inference can be drawn, that there was a sudden quarrel, or that there was heat of passion. To say that either one was present would be to put into the case facts which are not there, and which the jury would have no right to do. We have just now considered this question in State v. Pruett, 203 Pac. 840, the opinion wherein is handed down along with this one. In that case we hold that the submission of involuntary manslaughter was erroneous, and that the appellant might complain of such error. We discarded what we deemed to be an unsound doctrine to the effect that a defendant might 203 P.-54

not complain of such error because it was in his favor, and beneficial to him. We wish to adhere to our holding in that case, and here extend the reasoning and doctrine of that case to this one. In that case we pointed out that to allow the court to say that a defendant might not complain of the submission of a false issue to the jury would be to substitute the court as a trier of fact in place of the jury, and to authorize it to hold the defendant guilty in fact of the higher degree of the crime, notwithstanding the jury had found otherwise. Supplementing that statement, it may be said that such holding deprives the defendant of the benefit of the doctrines of reasonable doubt and presumption of innocence. The present case well illustrates this. The crime here was a dastardly assassination. A man without warning was cruelly beaten to death with an ax. The defense was an alibi. The question was whether the appellant committed the act. If he did, he was guilty of murder either in the first or second degree. A verdict accordingly would be supported by the evidence, and no other verdict would be so supported. Why, then, did the jury convict of manslaughter? The only reasonable answer is that the jury had a reasonable doubt as to whether the defendant actually committed the act, and by way of compromise, and to avoid the terrible consequences of a mistake, they found defendant guilty of manslaughter, a crime of which he was not guilty. He thereby lost his right to the benefit of the doctrines of reasonable doubt and presumption of innocence.

There should be no practical difficulty in the administration of the rule that instructions should be limited to the degree of the crime shown by the evidence. It is within the province of the court to submit to the counsel for the state and for the defendant in every case the question as to what degree should be submitted to the jury. When thus called upon by the court it is their duty to speak, and a refusal by counsel for defendant to take a position upon the matter will amount to a waiver of the error of the court in that regard, if error shall occur. It will be available error only in case the court fails to agree with counsel as to the proper scope of the instructions.

The defendant by the verdict has been acquitted of murder, and has been convicted of a crime of which he is not shown to be guilty, and he is consequently entitled to be discharged.

It follows that the judgment is erroneous. and should be reversed, and the cause remanded, with instructions to set aside the judgment, dismiss the cause, and discharg the appellant; and it is so ordered.

RAYNOLDS, C. J., concurs. DAVIS, J., did not participate.