We have direct authority in the books for taking defendant at his word. State v. Greenlee, 33 N.M. 449, 269 P. 331; State v. Luttrell, 28 N.M. 393, 212 P. 739. In the first mentioned case the court said [ 33 N.M. 449, 269 P. 333]:

"Mr. Neal: We don't agree with the court. "The Court: It is taken from the case of State v. Greenlee [ 33 N.M. 449, 269 P. 331]. "Mr. Neal: We except to the instruction and the ruling of the court thereon.

See State v. Kidd, 24 N.M. 572, 175 P. 772; Tucker v. Commonwealth, 159 Va. 1038, 167 S.E. 253. The defendant is entitled to an instruction on the law of manslaughter although he relies solely upon the theory of self-defense. State v. Greenlee, 33 N.M. 449, 269 P. 331; State v. Rish, 104 S.C. 250, 88 S.E. 531; Commonwealth v. Colandro, 231 Pa. 343, 80 A. 571. We are satisfied that there was some evidence in the present case tending to show that the killing occurred while appellant was in a heat of passion provoked by the actions of his wife, the deceased; and, consequently, that the trial court, in giving the portion of the charge complained of, invaded the province of the jury.

The evidence was in conflict and the jury had the right to take defendant at his word. State v. Greenlee, 33 N.M. 449, 269 P. 331. It could have believed the fraudulent intent to appropriate the silverware to his own use was formed later. Moreover, it would not be fatal to conviction under the statute, resting on entrustment, as it does, that the fraudulent intent existed or was formed coincidentally with receipt of the money or property.

And if the jury, who saw the witnesses and heard the testimony, came to a like conclusion, even though this involves rejecting the truth of some of the state's testimony, we can not say that this was error. State v. Smith, 26 N.M. 482, 194 P. 869; State v. Trujillo, 27 N.M. 594, 203 P. 846; State v. Greenlee, 33 N.M. 449, 269 P. 331. The evidence shows that the appellant went to the room of the prosecuting witness, late at night, on several occasions. He removed his shoes, unbuttoned his pants, got in bed with the prosecuting witness, and there engaged in various lascivious activities with her, neither in keeping with a platonic attitude nor his calling in life.

The defendant is entitled to an instruction on the law of manslaughter although he relies solely upon the theory of self-defense. State v. Greenlee, 33 N.M. 449, 269 P. 331; State v. Rish, 104 S.C. 250, 88 S.E. 531; Commonwealth v. Colandro, 231 Pa. 343, 80 A. 571.] We are satisfied that there was some evidence in the present case tending to show that the killing occurred while appellant was in a heat of passion provoked by the actions of his wife, the deceased; and, consequently, that the trial court, in giving the portion of the charge complained of, invaded the province of the jury.

This is to renew the discredited contention that the jury must accept one theory or the other in a case of this kind. Cf. State v. Smith, 26 N.M. 482, 194 P. 869; State v. Greenlee, 33 N.M. 449, 269 P. 331. In this connection it is interesting to note that, while the evidence offered by the state may have tended to show and might have justified a verdict of murder in the first degree, the jury was instructed that, if it should so determine, it must acquit appellant, because he had already been acquitted of, and was not on trial for, that offense.

We are unable to agree with counsel for appellant that in State v. Trujillo, we distinguished the case of State v. Smith, supra. We were correct in saying recently in State v. Greenlee, 33 N.M. 449, 269 P. 331, that State v. Smith was approved in State v. Trujillo, and we also followed it in the Greenlee Case. It is also claimed that the court erred in overruling supplemental motion for new trial based upon newly discovered evidence.

State v. Martino, 27 N.M. 1, 192 P. 507, cited by appellant, is not in point. See State v. Greenlee, 33 N.M. 449, 269 P. 331. [ 2] Error is assigned upon the overruling of appellants' motion for a directed verdict at the close of the state's case.

This purpose is consistent with other New Mexico cases requiring that written jury instructions be provided in order to "properly enunciate the law on the subject." Territory v. Lopez , 1884–NMSC–012, ¶ 10, 3 N.M. 156, 2 P. 364 ; see State v. Greenlee , 1928–NMSC–020, ¶ 27, 33 N.M. 449, 269 P. 331 ("Since 1880 it has evidently been the legislative policy that there should be an authoritative record to which the jurors might refer to avoid misapprehension or differences of opinion[.]"). {27} The metropolitan court's written instruction on duress, which was available during the jury's deliberations, correctly articulated the State's burden with respect to Defendant's claim of duress.