after making the foregoing statement, delivered the following opimon of the court:

In the view we take of the case, we need to consider only one question raised by the assignments of error and that is tMs:

1. Was there sufficient evidence to support the verdict of the jury?

*720The question must be answered in the negative.

There is absolutely no evidence which could be even argued as being in conflict with the testimony of and for the accused, except the dying declaration of the deceased that the accused shot him “without any cause,” and the testimony of Mr. Price to the effect that the accused said that he thought he had shot the deceased in the foot, that he “aimed to shoot him in the foot.” As held in Pendleton’s Case, 131 Va. 676, 109 S. E. 201, the dying declaration was admissible in evidence, but the sufficiency of such a declaration, when standing alone, to sustain a verdict finding the accused guilty of murder is another matter, and especially in a case in which all of the other evidence, to say the most of it, in favor of the Commonwealth, points only to involuntary manslaughter. And it would be only upon the theory that the shooting was not actually or apparently necessary by the accused in self-defense, because the youth and size of the deceased was such that the accused could have protected himself without resorting to the use of the gun, that he could be found guilty of involuntary manslaughter. We say this because, even if, upon the theory just mentioned, the resort to the gun was neither actually nor apparently necessary, yet the shooting would have appeared to the deceased as having been without any justifiable cause; and that the shooting was without justifiable cause as it appeared to the deceased, is all that his dying statement can be said to have meant. Such statement, therefore, is entirely consistent with the evidence tending to show that the shooting was accidental, and, at most, the result of the unnecessary and careless use of the shot-gun. This might constitute the offense of involuntary manslaughter, but no greater offense, under the circumstances of this case.

*721The statement of the accused to Mr. Price that he aimed to shoot the deceased in the foot, accompanied his statement to the same witness that the shooting was accidental, and is in entire accord with the statement of the accused in his testimony on the trial that he “pointed the gun at him aiming to scare him off and in my (the accused’s) excitement I pulled the trigger and shot him.”

There is an entire absence of any evidence in the ease tending to show that the accused or his witnesses swore falsely; or that there was, on the part of the accused, any old grudge, or actual malice, or constructive malice, due to the deliberate use of the weapon; or other conduct of the accused inconsistent with the defense which he made upon his trial. There was nothing in the character of the wound which was in conflict with the testimony of and for the accused.

Therefore, as it seems to us, all of the evidence in the case is consistent with the theory that the shooting was accidental and not the result of any intentional wrongdoing. Hence, we are of opinion that there was not sufficient evidence to sustain the verdict finding the accused guilty of murder.

The case will be reversed and a new trial awarded.

Reversed and remanded for a new trial.