| Miss. | Mar 15, 1902
delivered the opinion of the court.
Turner Cooper was tried in the circuit court of the first district of Coahoma county for the murder of Nich Tucker, was convicted of manslaughter, and sentenced -to the penitentiary for ten years, from which judgment he appeals. According to the testimony of several witnesses the parties met in a storehouse, when Cooper fired his pistol at Tucker and inflicted a ' wound upon him, of which he soon died, at a time when Tucker was making no demonstrations against him, and had no weapon with which to do him hurt; according to other witnesses Cooper shot and killed Tucker by reason of an assault and battery upon , him by Tucker with his fist; while still other witnesses stated that Cooper shot Tucker in defense of his person against an assault and battery upon him by Tucker'with a knife.
The court instructed the jury, among other instructions, as follows: No. 3. “The court instructs the jury that if they believe from the evidence beyond a reasonable doubt that the defendant armed himself with a pistol for that purpose, and went to Morgan’s store and. provoked a difficulty with deceased by word or action, intending to use such weapon in the difficulty in the event that it should become necessary to overcome the deceased, and that he then shot and killed deceased in such difficulty, the jury will find him guilty as charged, even though they further believe that deceased was armed with a pistol, knueks, and knife, and attempted to cut defendant, and did cut him; and though they also believe he killed deceased in self-defense.” This instruction was excepted to. The elements of
Reversed and remanded.