¶1 It is unnecessary to review the evidence in detail. Suffice to say, when considered in the light most favorable to the State, the evidence was sufficient to support the verdict of guilty of murder in the second degree.
¶2 Defendant assigns as error, inter alia, this portion of the charge: “Manslaughter is the unlawful killing of a human being with malice but without premeditation and deliberation, as I have said to you, and is of two kinds, voluntary and involuntary. Voluntary manslaughter, as I have said, is the unlawful killing of a human being with malice but without premeditation and deliberation.” (Our italics) Defendant’s assignment of error is based on exceptions duly taken.
¶3 The challenged instruction contains obvious error. Manslaughter is the unlawful killing of a human being without malice and without premeditation and deliberation. The unlawful killing of a human being with malice, but without premeditation and deliberation, is murder in the second degree.
¶4 The court, in an earlier instruction, had given the correct definition of manslaughter. Defendant contended, if guilty at all, he was guilty of no greater crime than manslaughter. The failure, by reason of the conflicting instructions, to draw clearly and accurately the distinction between murder in the second degree and manslaughter must be held sufficiently prejudicial to entitle defendant to a new trial.
¶5 Whether the erroneous instruction is attributable to an error in taking or transcribing the charge, or to “a slip of the tongue,” we must base decision on the record as it comes to us.
¶6 New trial.