Appellant, charged with first-degree murder and convicted of second-degree thereof, claims error for failure to submit the issues of voluntary and involuntary manslaughter.
In State v. Reed and Beck, 39 N. M. 44, 39 P.(2d) 1005, 1006, we recently said: “It is firmly established that it is error to refuse to instruct on a degree of homicide of which there is substantial evidence and error to submit a degree of homicide of which there is no evidence. State v. Hunt, 30 N. M. 273, 231 P. 703.”
Passing by a question of whether a charge of involuntary manslaughter is necessarily included in the murder charge, we do not find that the evidence required the submission of an instruction as to involuntary manslaughter.
A consideration of the record brings us to the conclusion that under the principle laid down, in State v. Kidd, 24 N. M. 572, 175 P. 772, voluntary manslaughter was within the evidence and it was error for the court to refuse to instruct as to the law thereof. See State v. Diaz, 36 N. M. 284, 13 P.(2d) 883.
The judgment must be reversed and the cause remanded for a new trial, and it is so ordered.
SADLER, O. J., and WATSON, and ZINN, JJ., concur.