After the homicide had been committed Dr. Lee examined the body of the deceased. He found two wounds on the head: a laceration from three and a half to five inches in length in a line from the right eye back toward'the ear, the laceration extending to the bone, .and a- bruise over the left temple three or four inches long and two inches wide. The witness expressed the opinion that death was caused by a fracture of the skull and contusion of the brain resulting from a lick or blow, and that the laceration or incision could have caused the fracture 'at the base of the skull; that is, that the laceration could have- produced death. There is other evidence which would sustain the conclusion that death resulted from the wound on the left temple.
It is evident that neither of these wounds was inflicted by Turnage. There is evidence that both- the defendant and Eandolph Davis struck the deceased. James Williams testified that the wound on the left temple was inflicted by the defendant with a truck round; the defendant said that he did not use the round, but that Eandolph Davis used it. The evidence would have warranted the jury in finding that the defendant made the wound on the left temple; that Eandolph Davis made the other, and that the latter, and not the former, was mortal. That the defendant and Davis acted in concert or that the two wounds were simultaneous is *556not a necessary deduction from tbe evidence. It is in these circumstances tbat tbe defendant excepted to tbe following instructions:
“Now, gentlemen, it is competent for tbe defendant to testify tbat somebody else actually did tbe killing or struck tbe blow from wbicb tbe deceased died, in order to exonerate bimself, if be can, and if tbe jury accepts bis statement, “because if be never struck a.t all, somebody else did strike tbe blow wbicb killed tbe deceased, tben tbe defendant could not be guilty.”
“Now, you are not trying Eandolpb Davis, you are trying tbe defendant, but as I say, if tbe evidence satisfies you’tbat Eandolpb Davis is tbe man wbo struck tbe blow tbat killed tbe deceased, tben you would bave to find tbat tbe defendant was not guilty, if you believe tbe defendant bimself did not strike.”
Tbe instructions, as they appear in tbe record, are susceptible of tbe construction tbat if Eandolpb Davis inflicted a mortal wound on tbe right side of tbe bead and tbe defendant inflicted another wound which was not mortal, tbe defendant would be guilty merely because be struck tbe deceased, although there was no concert of action between them, and although there may bave been an interval between tbe two blows. For this reason tbe defendant is entitled to a new trial.
New trial.