delivered the opinion of the court.
The granting of the third instruction for the state was fatal error. The defendant might well concede all the facts set out in that charge and still be guilty of no offense included in the indictment in this case. The appellant did not deny that he was in possession of the gun, or that the gun while so in his possession was discharged.. ITis defense was based on the contention that he was not responsible for the firing of the fatal shot, and that the gun was accidentally discharged during the struggle for its possession, and without any intention on his part either to fire the gun or to injure either the person slain or the man with whom he had previously been engaged in an altercation. .There was proof tending to support this theory, which the instruction under review absolutely ignored.
Reversed and remanded.