CHARLESTON.

#### State *v.*Tony Fama

(No. 6378)

Submitted April 30, 1929.

Decided May 7, 1929.

*Carl C. Sanders*and *Clarence W. Meadows,*for plaintiff in error.

*Howard B. Lee,*Attorney General, and *R. A. Blessing,*Assistant Attorney General, for the State.

*336Lite, Judge:

Tbe defendant, Tony Fama, was convicted of murder in the second degree and sentenced to eighteen years in the penitentiary for killing Lnther McG-raw.

The homicide occurred between nine and ten P. M., Sunday, March 25, 1928, in the storeroom of a building in which Sam Fama (father of the defendant) conducted a grocery store and hotel, at Milam, Wyoming county. The Fama family, consisting of Tony, his father, mother and sister, lived in the same building. Early in the evening of the tragedy, Luther McGraw, Wirt Cook and Lewis Sizemore joined Bill Phillips at his garage, near the Fama store and hotel. McGraw was carrying in the bosom of a lumber jacket, which he wore, a half-gallon fruit jar containing moonshine liquor. The four soon started together for Fama’s place of business. Sizemore, who testified for the prosecution, states, as the reasons for going, that they were drinking and wanted to get away from their “folks”. Some or all of them took drinks at the garage and after leaving for the Fama building. When the party arrived at the store, Cook or Sizemore called for soft drinks, which they proceeded to “spike” from the contents of the jar, over the protest of Mrs. Fama, who waited on them. She took the price of the drinks from a five-dollar bill handed her by Cook and gave him the change. Sometime later, after going outside and returning to the storeroom, Sizemore demanded of Mrs. Fama the change from a five-dollar bill which he claimed he had given her or placed on the counter at the time she accepted the bill from Cook. When she denied that he had given her any' money and refused to accede to his demand, he used vile and abusive language, and, according to the defense, went behind the counter where the cash register was located and threatened to take the money from the cash register drawer. Sometime after this disturbance had subsided, he renewed the trouble, and, using vile and threatening language, and advancing, toward Sam Fama, became engaged in a scuffle or fight with him. Cook and Phillips immediately entered the fray by attacking Fama; and when Mrs. Fama attempted to rescue her husband with her bare hands, she *337was struck in the face several times by one or more of his assailants and fell to the floor bleeding. At this juncture, the defendant, who had appeared on the scene, fired a shot which took effect in the body of McG-raw near the left kidney, causing immediate death.

There is little material conflict in the evidence of the final act, excepting the part, if any, played by Luther MeGraw. According to the testimony for the defense, he assaulted Mrs. Fama immediately before the shot, while the evidence for the State shows that he had approached or was approaching the combatants for the purpose of viewing the fight at close range, but had not actually participated in it.

The only error assigned, deserving consideration, is based upon an instruction for the .State, as follows: “The court instructs the jury that if you shall believe beyond a reasonable doubt, from the evidence in this case, that Sam Fama and his wife were at fault in fomenting the trouble and fight in the store of the Famas, as testified about in this case, and if you further believe it was a mutual combat engaged in between the Famas and Lewis Sizemore, or Sizemore and certain of his companions entered into willingly — not for self protection, but to gratify their passion by inflicting injury upon one another; and if you further believe Tony Fama, son of Sam Fama, took the' life of Luther MeGraw ostensably to protect his parents on the occasion referred to in the evidence, the said Tony Fama can set up only such defense for said killing as would be available to his parents or could be set up by them, or either of them, had they or either of them on said occasion killed the said Luther MeGraw, and if you believe from all the facts and circumstances, as introduced by both the State and the defendant, that the said Sam Fama or Mrs. Fama, his wife, would have been justified in taking the life of the said Luther MeGraw on said occasion, then the said Tony Fama is not justified in said act and you should so find. ’ ’ The word “not” was evidently intended between the words “would” and “have” near the end of the instruction. "Whether Sam Fama or Lewis Sizemore was the aggressor in starting the affray which resulted in the death of Luther MeGraw, there is certainly no evidence that Mrs. Fama was *338“at fault in fomenting the trouble and fight.” All she did was to deny the charge of a drunken blackguard that she had stolen his money and attempt, in her feeble way, to rescue her husband. The evidence does not tend to show that she was seeking to inflict punishment upon anyone merely to gratify her passion. The defendant says he was provoked to fire the shot by the vicious and unjustifiable assault upon his mother. An instruction presenting a pertinent theory not supported by substantial evidence is erroneous.

The judgment is reversed, the verdict set aside and a new trial awarded the defendant.

*Reversed; verdict set aside; new trial awarded.*