Thayer, C. J.
The appellant was indicted under section 1785, Code of Crimes and Punishments, which reads as follows: “If any person shall purposely and maliciously, or in tbe commission or attempt to commit a felony, cut or tear out or disable the tongue, put out or destroy tbe eye, cut or slit or tear off an ear, cut or slit or mutilate tbe nose or lip>, or cut off or disable tbe limb or member of another, such person, upon conviction thereof, shall be punished by imprisonment i:i tbe penitentiary for not less [508]*508than one nor more than twenty years.” A demurrer was interposed to the indictment, which the circuit court overruled, and the appellant thereupon pleaded not guilty. A trial was then had, which resulted in the appellant’s conviction of the crime as charged; and from which he has appealed to this court, and assigned several grounds of error, upon which he relies on the appeal. One of the grounds is that the evidence in the case was not sufficient in law to authorize the conviction. This raises an important question for our consideration, involving a construction of said statute.
It apj)ears that after the evidence was closed, the appellant’s counsel moved the court that, upon all the testimony in the case, it direct a verdict for the appellant, and that he be discharged; or, that the court instruct the jury that the appellant could not be convicted of the crime of mayhem, for that the evidence was insufficient to justify the same, and that the indictment failed to charge any facts constituting such offense. That the court refused to allow said motion, and to make said order, or any part thereof; and to which the appellant’s counsel excepted. That the court, in its instructions to the jury, among others charged that if a person with the teeth should cut,' slit or mutilate the lip of another, that would make it mayhem under said section of the statute. That that was a question of fact for the jury to determine under the law and the evidence as it had been submitted to them, as to whether or not the appellant was guilty of the crime. To this charge of the court the appellant’s counsel excepted, upon the ground that the court failed to instruct the jury that the evidence was insufficient to justify a conviction of the crime of mayhem, attempted to be charged in the indictment, and that the facts therein stated failed to constitute such crime. The bill of exceptions purports to contain all the evidence in the case, and hence the point of the said exception is fairly presented. The evidence shows that the alleged cutting, slitting and mutilation occurred in a fight between the appellant and the said [509]*509Joseph Morin, which took place at the Holton House, in-Portland, on the sixteenth day of March, 1889, the time charged in the indictment as the time of the commission of the offense. It appears that said parties at said time were employes at the Holton House; that appellant had been employed there for more than three years as runner, and that Morin had been employed there about six months as a porter; that upon the occasion referred- to the appellant accused Morin with having slapped the bell-boy, and that the parties immediately engaged in the fight. The evidence is conflicting as to which of them began it, each claiming that the other struck the first blow.
Morin testified that he came into the office and was sitting by the elevator talking to some one, when the appellant called him to the desk, where he was writing a message, and said to him: “The next time you raise your hand on that boy I’ll break your neck. ” He replied that he did not raise his hand on the boy, whereupon the appellant called him a liar and struck him. The appellant, on the other hand, testified that he was writing a telegram at the desk in the office of the hotel, when the boy came to him crying and said that Morin had been beating him again. That upon seeing Morin, appellant asked him why he could not let that boy alone, why he wanted to be whipping him all the time; told him that he was not the boy’s boss, and had no more right to beat him than he (appellant) had a right to beat him (Morin), to which the latter replied that it was none of his business, and that he would fight appellant, and thereupon struck appellant. Other witnesses testified in regard to the commencement of the affair, and the most of them corroborated the appellant’s testimony upon that point. But, whatever the truth may be in regard to that fact, it is evident that the parties very hastily engaged in the contest on both sides; that they clinched and struggled among the baggage and tables, and finally separated after Morin said he had enough of it. Morin claimed in his testimony that during the melee his lip was lacerated, his thumb and one of his fingers injured, [510]*510and one cheek bruised, and that it was .caused by the appellant biting him. It seems that he was very much excited and exasperated at the time, so much so that immediately after their separation he went and got his pistol and fired five shots at the appellant, had a tussle with other parties who were attempting to wrest the pistol from him, and ran off towards the bluffs back of the city; but he finally became more composed, and returned and gave himself up to the police. The wound upon Morin’s lip is the only one necessary to be considered, and its importance is not in consequence of its severity, but of its locality.
Under the construction of said section of the Code claimed by the counsel for the State, and which seems to have been given to it by the circuit court in this case, a wound inflicted upon the tongue, lip or nose of a person, by whatever means occasioned, would, if it resulted in a ‘ ‘ cutting ” of one of those organs, render the party who inflicted it guilty of a felony, which, if made upon some other part of the person, although it were far more severe, would only amount to assault and battery. The counsel for the appellant strongly insisted that the injury to the lip was not caused by biting, but that it evidently resulted from the blow shown by the testimony to have been struck bj/ appellant upon Morin’s mouth after he was released from apjjellant’s hold, claiming that the lip was thereby necessarily forced against his own teeth, and that it produced the laceration. But if the injury had been caused in that way and it thereby caused a cutting of the lip, within the meaning of said provision of the statute, the same liability, so far as I can see, would attach. The question therefore to be determined, relating to the point under consideration, is whether the injury to the lip was such a ‘'cutting” of it as would render the appellant answerable to the said provision.
I cannot understand how one man engaged in a scuffle with another, such as took place between the appellant and Morin, could manage to bite the other’s lip; but the [511]*511jury must have so found, and we are obliged to accept their finding as conclusive of the fact. We are not, however, precluded from an inquiry as to the character and extent of the wound in order to ascertain whether or not it constituted mayhem under the statute, nor from determining the construction which the statute should receive. So far as I can discover from the evidence in the case, the wound involved the lower lip, and the appellant's counsel stated at the hearing—which was not denied, as I remember, by the counsel for the State—that it was on the inside of the lip. But I have not been able to ascertain from the testimony, to my satisfaction, whether such is the fact or not, though it might perhaps be so inferred from the testimony of Max. M. Shillock, a reporter on the Oregonian, who was present when the wound was dressed. He testified that he received a message to come to the jail; that Morin had given himself up; that Morin was standing in the police office; that his hat was off, and his face was covered with blood, and collar and necktie and shirt pretty much saturated, and his hands were bloody, and his lip; there was a clot of blood on his lower lip, and a scar on his left cheek, and some scars on his fingers; did not examine the cut in the cheek very closely; watched Hr. Rand when he dressed the wound on the lip afterwards; it was about half an inch long; came very nearly to the lower edge of the upper part of the lip, and the outer skin was taken off, and exposed the flesh for about a quarter of an inch, he should think. ■ It was pretty much covered with blood when he first saw him;, it was all clotted blood cn his lip. Dr. Rand, in his testimony as a witness, testified that the wound was in the center of the lip; thought it was about three-quarters of an inch long, about half an inch wide, and about a quarter of an inch thick, “just by estimation of it.” It was a raw cut or raw laceration, and bleeding quite profusely; bled on his clothes, necktie, and shirt; and there were a few scratches on his face and fingers; should think that there was a piece gone out of the lip of the size he before mentioned.
[512]*512Morin, in his testimony in regard to the affair, stated that he (appellant) got hold of his lip with his teeth and bit it, and bit a piece off of it, “so when I managed to push him away from me he caught hold of my right finger. He took a part of my lip away; the piece was taken off from here. It has been healed up again with medicine. The lip has drawn up again, but it shows disfiguration.”
Henry Griffin, a policeman, testified that he examined the lip when the doctor was dressing it; that it was swollen and all blood, and cut across the bottom of it; that there was a piece out of the lip missing. James Barry, another policeman, testified that when Morin came to the door at the station that night he'was bloody on his face, mouth, shirt and hands, very bloody; that “his lip looked like as though it was bit; looked like a piece of raw beefsteak. ”
It is difficult to obtain from this testimony an intelligent idea of the nature and extent of Morin’s wounds, but it is obvious that they were not serious, though the grotesque sight which, in his unwashed condition, he presented, no doubt greatly intensified the enormity of their appearance. There was no testimony in the case showing that the appellant inflicted the injury through a malicious design, or for the purpose of disfiguring Morin’s features. The affair evidently arose out of a sudden outburst of passion on the part of the appellant against Morin, incited by the latter’s supposed mistreatment of the bell-boy,'and of his prompt resentment in return. It was a contest for mastery, in which each of the combatants relied upon his own courage, skill and prowess. It was not conducted in accordance with conventional rules recognized by the popular pugilists of the day, but in a primitive style—a manner which Western people vulgarly term a “ground squabble,” wherein nice honor as to the mode in which the parties hurt each other is not observed.
Such occurrences are not respectable, but are disgraceful and demoralizing; yet it is better that they be indulged in occasionally than that men lose their grit and become [513]*513dudes and poltroons. Where parties unfortunately become involved in such broils, and one of them receives an injury to some of the organs enumerated in said section of the Code, I do not think that it renders the party inflicting it liable to the penalty which that section imposes, although the injury bo technically of the character therein mentioned. I do not believe that the legislature intended said provision to include cases arising under such circumstances. It evidently had in view a class of cases in which the conduct of the parties was wanton, deliberate and cruel. The language of the section: “ If any person shall purposely and maliciously, or in the commission or attempt to commit a felony,” etc., implies something more than a wounding incidental to a fight. The statute extends the law of mayhem, as it existed at common law, to other subjects, although it does not use the term except in the title to' the chapter of the Code enacted by the legislature. State v. Vowels, 4 Or. 324. In that case the court, by McArthur, J., says: “It may not be amiss to state that this section (referring to said § 1735) is based upon the English statute of 22 and 23 Car. II, ch. 1, commonly known as the Coventry Act, the circumstances which led to the passage of which are recounted by Lord Macaulay’s Hist. Eng., vol. 1, 8vo. ed., p. 77.”
The “Coventry Act,” to which the learned judge referred, was enacted in consequence of an assault on Sir John Coventry in the street, and slitting his nose, in revenge, as was supposed, for some obnoxious words uttered by him in parliament. It enacted “that if any person shall of malice aforethought and by laying in wait, unlawfully cut or disable the tongue, put out an eye, slit the nose, cut off the nose or lip, or cut off or disable any limb or member of any other person with intent to maim or disfigure him, such person, etc., shall be guilty of felony, ” etc. The circumstances which led to the passage of the Act and its language show conclusively the reason and purpose of its adoption and the nature and character of offense which it was intended to declare a felony and [514]*514punish as such; and if the section of the Code was based upon that Act, as suggested in State v. Vowels, as it undoubtedly was, or upon a similar Act of parliament passed subsequently thereto, then our conclusion that it was intended to apply to a class of cases in which the conduct of the parties was wanton, deliberate and cruel, must be correct. Again, the word “cut” was used in the same construction in said Coventry Act and in English statutes upon the subject passed subsequently as it is used in said section of the Code, and had received a legal construction long prior to the adoption of the section by the legislature of this State. It meant a wound made with a sharp instrument.
Bishop, in his work on Statutory Crimes, § 315, 2d ed., says: “Where the words cut or stab are used, as in the before-mentioned English statutes, they relate only to such wounds as are made by an instrument capable of stabbing or cutting, stabbing being properly a wounding with a pointed instrument, and cutting being a wounding with an instrument having a sharp edge. And if the indictment be for cutting, evidence of a stab will not support the charge; for, as the statute uses the words in the alternate, stab or cut, so as to distinguish them, the distinction must be attended to in the indictment. Yet cutting or stabbing need not have been the purpose for which the instrument was manufactured. For example, a blow from the sharp claw of a hammer, or the sharpened point of an iron crow, may inflict a cut; but not from the blunt end of a hammer or from a square iron bar, producing a contused or lacerated gash, or from the scabbard of a sword, or from the handle of a windlass. ” It was held in New Jersey that if the nose is bitten off it is cut off—a conclusion not in accord with the English doctrine. Under 1 Jac. 1, c. 8, § 2, employing the words “stab or thrust any person,” Hawkins says: “The killing of a man with a hammer or such like instrument, which cannot come properly under the words ‘thrust or stab,’ is not a killing within the statute.” I refer to the latter matter not so much for the [515]*515purpose of claiming that the construction by the English courts of the word, cut, as used in the English statutes referred to, should be adopted in the construction of the said provision of our Code, but to show that such statutes are only intended to include cases where the'act was done deliberately and intentionally. Using a sharp instrument to effect the cutting would imply intention and deliberation, which must be shown in some manner in order to authorize a conviction. This question was fully discussed in Godfrey v. The People, 63 N. Y. 207. That case arose under the statute of that State upon the subject of may hem, which is perhaps more pronounced in requiring deliberation than our Code, though much of the reasoning of the learned court applies to it with the same force that it does to the New York statute. The evidence there tended to show that the accused and the complainant had been playing cards together and got into a quarrel over the game, which resulted in a fight. The parties closed, and during the struggle the accused bit off a piece of complainant’s ear. Miller, J., in delivering the opinion of the court, at page 211 of the case, says: “If the offense was committed within the meaning of the statute, it must have been done ‘on purpose’ as well as with a ‘premeditated design.’ There is no real ground for claiming that there was premeditation and a purpose existing at any time during the progress of the conflict, when the passions of both parties were aroused, and there was no time or opportunity for reflection or deliberation. Such an assumption would be contrary to the natural inferences to be drawn from the circumstances and the situation of the parties at the time, and looking at them it cannot be fairly claimed that the prisoner, intended to commit the offense of which he was convicted.
‘ ‘An argument is made by the learned counsel for the prosecution, to the effect that the doctrine of instantaneous malice under the old law of murder is applicable, and that the definition of premeditation as applied to such a case may be invoked. I cannot concur in this view. In cases [516]*516of homicide where the offense is committed by means of weapons or by the use of violence sufficient to produce death,' such a rule might well be applied, because every circumstance tends to show that the result was intended. But this differs widely from a case of simple assault and battery, where there was a hand-to-hand fight, without any weapon which could be used to maim or disable, and every intendment is against any such purpose. Another answer to this position is that the statute of mayhem in England, as well as in this State, was evidently intended to provide for cases where there was an antecedent and secret purpose to commit the act, and not for casual and sudden affrays where the act was done in the heat of the strife and with no direct evidence of any such intention. ” In Tully v. The People, 67 N. Y. 15, a case of mayhem by biting the complainant's thumb so as to permanently disable it, the court held that the evidence was sufficient to authorize the submission of the case to the jury. But there the evidence tended to show that the complainant was riding in a street car; that the accused got into the car and was put off by the conductor for not paying his fare; thathe got on again and forced his way into the car, exclaiming as he did so., “Let'me in till I eat somebody.” After getting in he caught hold of the conductor and bit his thumb. Complainant requested him to be quiet, as there were ladies in the car, and they both sat down. After a few moments the accused sprang up and struck complainant, and as the latter arose, seized his nose with his teeth; complainant put up his hand to protect his face, when the accused caught his thumb in his mouth and began to chew it. and continued so to do until he was forced from the car by the-other passengers, hanging on to the thumb until he reached the platform. In the latter case the jury were justified in finding not only that the act was done “purposely and maliciously,” but by “premeditated design, • as there was direct testimony tending to prove both facts. It devolved upon the prosecution in the case under consideration to prove beyond a reasonable doubt that the [517]*517appellant purposely and. maliciously, or in the commission or attempt to commit a felony, cut the lip of the said Morin. It is not pretended that the wounding of the lip was done under any such circumstances, nor does the proof show that it constituted an offense within the meaning of said section of the Code, if done by biting, as the jury seem to have found, any more than if it had been done by gouging witli the thumb nail or by a blow of the fist. The hurt, so far as I can discover from the testimony, was a laceration of the tissue which lines the inner side of the lower lip, and of a nature liable to have been caused by various means. According to the testimony of Morin himself, it has since healed over; and to adjudge it mayhem, in view of all the surroundings, would be making a felony'Out of a comi>aratively trifling matter. The punishment which the law attaches to that character of crimes negatives the idea that the legislature intended that a scratch or gouge of that kind, received in a fight in which no artificial weapons were employed, should constitute so grave an offense. The appellant may have been guilty of an aggravated assault and battery, but to sentence him to the penitentiary for an act which was done, as said in Godfrey v. The People, supra, “where there was a hand-to-hand fight, without any weapons which could be used to maim or disable, and every intendment was against any such purpose, ” would be inflicting punishment disproportionate to the offense. I do not mean to be understood as holding that the crime of mayham, under the statute, cannot be committed without the use of a knife or some similar weapon. The employment of any direct means in the accomplishment of either of the results mentioned in said section of the Code, if made use of for that purpose, would be sufficient. The use of a weapon might not render the wound inflicted any more serious or painful to the party than if it were inflicted by the use of some of the physical organs. But a resort to a weapon under such circumstances would afford grounds for an inference that the act was done purposely and designedly.
[518]*518The appellant’s counsel assigned as another ground of error the failure of the circuit court to instruct the jury that they were authorized to find the appellant guilty cf any other offense than that charged in the indictment, the commission of which was included in the one so charged. The counsel for the State insists that the court did not err in that respect, as the appellant’s counsel neglected to request such an instruction. The circuit court instructed the jury generally upon the law of the case, so far as it related to their finding the defendant guilty or not guilty of the crime charged. After having instructed them what would constitute mayhem as before mentioned, the court further instructed that it was necessary that the State should make out the proof beyond a reasonable doubt. That it was necessary, also, in order to constitute the crime, that the act should have been done purposely and maliciously with the teeth, and that the lip of Joseph Morin should have been cut, slit or mutilated by the appellant in order to make out the crime. That if they found that his lip had been cut or injured, but were in doubt as to how it was done, or if they should find that it was done by accident or by merely striking him with his fist or with some instrument other than his teeth, then the appellant would not be guilty of the crime with which he was charged in the indictment; that the State must establish satisfactorily that the appellant with his teeth purposely and maliciously cut, slit and mutilated the lip of the prosecuting witness, Joseph Morin. That that was the charge in the indictment; that if they were not satisfied beyond a reasonable doubt that the appellant committed the crime by doing the acts alleged in the indictment, as had been explained to them under the law, then they could not find the appellant guilty, etc. That on the other hand, if they were satisfied beyond a reasonable doubt that the appellant with his teeth purposely and maliciously did the acts charged, with the intent to maim and disfigure the said Morin, then they should find the appellant guilty as charged in the indictment.
[519]*519This instruction was not. authorized by the evidence in the case, as there was no proof whatever that the appellant slit or mutilated Morin’s lip, and not sufficient evidence that he cut it purposely and maliciously. To slit, according to Webster, is to cut lengthwise; to cut into long-pieces or strips; to cut or make a long fissure; to cut in general; to rend; to split; and to mutilate is to cut off a limb or essential part of the body; and the latter term, in criminal law, is, according to Bouvier, to deprive a man of the use of any of those limbs which may be useful to him in fight. There is no pretense that the lip in question was cut into long pieces or strips, or rended or split, or cut off; and the instruction, as given, presented to the jury only, one of two alternatives, either to find the appellant guilty or not guilty of the crime charged in the indictment. The jury had the right, under section 1383, Criminal Code, to find him guilty of any crime, the commission of which was necessarily included in that with which he was charged, or of an attempt to commit such crime; and section 1359, Criminal Code, provides that “when it appears that the defendant has committed a crime, and there is reasonable ground of doubt in which of the two or more degrees he is guilty, he can be convicted of the lowest of those degrees only. ”
The jury in this case may have understood that they had the right to find the appellant guilty of a lesser offense than that charged in the indictment, though I think it exceedingly doubtful whether they did so understand. It was therefore highly important to the proper administration of justice that the court inform them in regard to that matter. But whether it was error of the court in failing to give such an instruction when the appellant’s counsel neglected to request it is the particular point for determination.
Trial courts in many matters have a duty to perform of-their own motion. For instance, it would be error on the part of such court to permit a petit jury to return a verdict in a case of felony in the absence of the accused, and it [520]*520would also be error for the court to pass sentence upon him after conviction without putting the formal question as to whether he had anything to say why the sentence of the law should not be pronounced against him; and in People v. Murray, 40 N. W. Rep. 29, the supreme court of Michigan, in a late decision, held that without any request from counsel, it was the duty of the judge of the circuit court to see that a' case was fairly submitted to the jury. The court, by Sherwood, C. J., there said: “While this court cannot reverse a judgment or set aside a verdict upon a review of the facts, when such facts have been properly submitted to a jury, and will not ordinarily depart from such rules of practice as have been adopted as the results of the highest experience, yet under the general superintending power and control over all inferior courts and their proceedings, given under the appellate jurisdiction of this court, I have no doubt, in a criminal case, upon a review of all the proceedings had which have resulted in the conviction of a respondent, if the court can see that a fair trial has not been had, and it is made manifest that injustice has been done, it then becomes the imperative duty of the court, with or without objections and exceptions by the respondent’s counsel, to set aside such proceedings and order a new trial, and we think the present presents such a case. * * * The respondent was sworn, and some of. his testimony contradicted the people’s witnesses, yet no charge was made stating what weight the jury might give to his testimony. Without any requests from counsel, it is the duty of the circuit judge to see to it that the case goes to the jury in a clear and intelligent manner, so that they may have a clear and correct understanding of what it is they are to decide; and he shall state to them the law fully applicable to the facts. Especially is this his duty in a criminal case. * * * Too much reliance is often placed upon counsel by the court in this respect for requests; but this should not be done. The court must do its duty in a criminal case, whether counsel [521]*521clo so or not. It is to the court that the accused has a right to look to see that he has a fair trial. ”
This view accords entirely with my own idea regarding the duties of courts of justice charged with the administration of criminal law. The Constitution guarantees to the accused in criminal prosecutions the right to a fair and impartial trial, and the duty of enforcing that guarantee is committed to the judicial branch’of government; and no department of the government has power to deprive the accused of such right. Nor can the latter alienate or waive it. In Cancemi v. The People, 18 N. Y., in a trial for murder, one of the jurors was withdrawn under a stipulation of the prisoner consenting thereto, and also that, by the record, the case should appear to have been tried by twelve jurors; it was held by the court of appeals that a conviction by the remaining eleven was erroneous. The court there says: “Criminal prosecutions involve public wrongs, a breach and violation of public rights and duties, which affect ‘the whole community considered as a community in its social and aggregate capacity.’ 3 Bl. Com., 2d ed., 45. The end they have in view is the prevention of similar offenses, not atonement or expiation for crime committed. Id. 11. The penalties or punishments for the enforcement of which they are a means to the end, are not within the discretion or control of the parties accused; for no one has a right, by his own voluntary act, to surrender his liberty or part with his life. ” Pages 136, 137.
The Constitution of this State provides that in all criminal cases whatever, the jury shall have the right to determine the law and the facts, under the direction of the court as to the law, and the right of a new trial, as in civil cases, and it requires the judge of every court, before entering upon the discharge of the duties of his office, that he will support that fundamental law upon which all the institutions of the government are built. How can a trial court neglect to direct a jury as to the law applicable in such cases consistently with the discharge of its duty ? The jury must take as their guide in their deliberations the law as [522]*522laid down by the court, which is an important means for securing to the accused a fair trial and just decision. In Lang et al. v. State, 1 S. W. Rep. 319, a Tennessee case, the court says: “In all criminal prosecutions the accused is entitled to a full, fair and plain statement by the court to the jury of the law applicable to his case;” and in State v. Banks, 73 Mo. 592, the majority of the court held that it was the duty of the trial court in criminal cases to give correct instructions covering the whole law arising on the facts, whether such instructions were asked or not, and such has been the uniform rule of decision of the courts of that State for the past half century. In the latter case Mr. Justice Norton dissented, stating as the grounds thereof the following: “Whether error was or not committed by the trial court in not instructing the jury as to some lower grade of homicide than murder in the first degree (which was the point the trial court had failed to instruct upon) was a matter of exception, and as the attention of the trial court was not pointedly and specifically called to the alleged error, either in the motion for a new trial or- in arrest of judgment, it cannot be raised in this court for the first time; and we have no power to reverse a judgment in a matter of alleged error not excepted to in the trial court and to which the attention of said court was not called. ”
According to this view of the question the learned judge would seem to attach more importance to technical rules of practice than to the obligations imposed by the fundamental law. The reason for his dissent was in effect that the accused should be precluded from alleging error on account of the neglect of the trial court to give proper instructions to the jury because he failed to point out its neglect in that particular. If the reason were a valid one, it must be upon the ground that the accused, by his failure to point out such neglect of the court, waived the error; at least I cannot discover any other ground upon which it can be based. The waiver of a legal right in the trial of a civil action may properly be maintained. The doctrine of [523]*523waiver depends upon the maxim consensus tollit errorum, and it may consistently be resorted to and enforced in civil cases, as the parties in such cases are free to act, and their consent only affects individual rights. But in criminal prosecutions the accused is. proceeded against on behalf of the State, to be dealt by in accordance with the law, which is the only warrant for the proceeding. His attendance in court in that case is enforced; he is there by compulsion to do and receive whatever the court may deem proper, under the rules of law, to inflict upon him. He is entitled to the benefit of certain reserved rights, but is not authorized to consent to anything beyond formal matters, or which subserve his interest. Nor is the court justified in acting upon the consent of the accused in any matter aflecting his right to a fair and impartial trial. The law marks out the line which the court is required to pursue, and if it deviate therefrom in any particular which might operate prejudicially to the accused, it is no excuse to claim that he consented thereto or waived his right to challenge the irregularity.
I do not see how it can be maintained that the appellant in this case, or the accused in State v. Banks, supra, was required to except to the omission of the trial court to instruct the jury fully upon the law applicable to the case, in' order to enable him to take advantage of such omission upon appeal, if the accused in Cancemi v. The People, supra, were entitled to claim error on account of being tried by a jury composed of only eleven jurymen, when he expressly consented to it. If a party charged with a public offense may consent to a waiver of one of the immunities which the Constitution of the government throws around him to insure a fair and impartial trial of the case, I do not see why he could not dispense with them all. Of course, there are a number of rights the accused is entitled to which must be demanded by him before the court can know that he desires the benefit of them. The right to have compulsory process for obtaining witnesses in his favor belongs to that class. The accused must show in such [524]*524case that the demand was made to the court before he can claim that the right has- been denied him. But where the court fails to discharge a specific duty of its own, which it is required to perform of its own motion and which may operate to the prejudice of the accused, I do not think it -can be claimed that the latter waived its performance by neglecting to interpose an objection or to call the attention of the court ‘ ‘ pointedly and specifically ’’ to the fact. The accused could not give his consent in advance that the court might neglect the duty, and I do not see, therefore, any reason for claiming that he could thereafter ratify it. The weight of authority, estimated by the number of decisions, may be against the view here indicated, but I think it is correct in principle. When the offense charged includes a lesser offense, and there is any question as to the accused being guilty of the greater, it is highly essential that the trial court instruct the jury in regard to their right to find him guilty of the lesser one, in order that he may have the benefit of any reasonable doubt in the premises.
The importance of such an instruction was exemplified in this case. The jury evidently believed that the appellant was guilty of an act for which he should be punished; but, as I would infer from their recommending him to the mercy of the court, they were reluctant to find him guilty of the crime as charged in the indictment. He could very properly have been convicted under the evidence of assault and battery which, according to my view, was the highest grade of offense he committed, and I think it highly probable that if the trial court had given the jury the instructions suggested, they would have found him guilty of that offense, instead of finding him guilty of one of the degree of felony. There is no good purpose to be served in attempting to rush men into the penitentiary on account of matters growing out of ordinary broils, which are liable to occur between good citizens. Such affairs are to be deplored, but community will never become free from them so long as men possess temper and combativeness, and are in [525]*525such juxtaposition that their interests and passions collide. Several other questions are presented in the bill of exceptions, but it is not necessary to consider them.
The judgment appealed from should be reversed and the case remanded to the circuit court for a new trial.