The conviction herein was had in the Criminal Court of Record for Dade County upon an information charging that the defendant

"by his act, procurement and culpable negligence and while resisting an attempt made by Clinton C. Rydell to commit a felony, did unnecessarily kill the said Clinton C. Rydell by cutting him with a certain knife" etc.

and that the defendant

"unlawfully and feloniously in and upon the body of one Clinton C. Rydell, with a certain knife, a further and more particular description of said knife being to the County Solicitor unknown, did make an assault, and did by his act, procurement and culpable negligence, and unnecessarily, while resisting an attempt by the said Clinton C. Rydell to commit a felony, with said knife cut, stab and mortally wound the said Clinton C. Rydell so that the said Clinton C. Rydell did linger and lingering, did on the 12th day of July, A.D. 1931, of and from the mortal wounds so inflicted as aforesaid die," etc.

On writ of error the transcript of the evidence in the bill of exceptions contained in the record does not support either of the charges made in the information.

But the evidence does show a fatal cutting of the deceased by the defendant with a small pocket knife in self defense while the defendant was being held on the ground by the deceased in a threatening and violent manner after the deceased apparently without provocation had approached and cursed the defendant and pulled him from an automobile, getting him on the ground after a combat, both parties having theretofore during a night's outing been drinking and talking roughly to each other in a seemingly friendly way. *Page 272

Reversed.

BUFORD, C.J., AND WHITFIELD, ELLIS, TERRELL, BROWN AND DAVIS, J.J., concur.