Whitfield, J.,
delivered the opinion of the court.
The first, second, third, fifth, ninth, and twelfth instructions asked by the appellant announced correct propositions of law, as applied to the facts of this case, and should have been given. The fourth, sixth, seventh, tenth, eleventh, and thirteenth instructions asked by appellant were properly refused. They too much narrow the issue before the jury, selecting fragmentarily only part of the facts necessary to any phase of the case stated in them. Besides, the fourth omits the word “reasonable” before the word “doubt.” In the sixth, the words “confronted as he was” are objectionable, as assuming that Carter did “confront” appellant throughout the difficulty. And the thirteenth declared that shooting a man ‘ ‘ with intent to kill and murder him ’ ’ might be justifiable. The words ‘ ‘ and murder ’ must have been inadvertently inserted.
All the instructions for the appellant having been refused, even those invoking the doctrine of reasonable doubt, it was especially incumbent on the court to charge the jury correctly for the state, and yet, in not one of the seven charges given *882for the state are the jury told that they must “believe from the evidence beyond a reasonable doubt, ’ ’ etc., but, in five of the seven, are told to convict if they merely ‘ ‘ believe from the evidence” so and so — merely “believe;” and, in the seventh, they are told to convict if they ‘ ‘ believe ’ ’ so and so, the words ‘ ‘ from the evidence, ’ ’ even, not being added. The court manifestly meant to decide for itself that there was no reasonable doubt. And, for this reason, all the instructions given for the state, except the fifth, are erroneous. Besides, the first is subject to the criticism made of those of appellant’s charges that are pronounced erroneous — that it is too narrow and selects only part of the facts. The second makes ‘ ‘ actual danger ’ ’ essential to the right of self-defense. The third contains the incorrect idea that, though the first shot may have been justifiable, the two last necessarily made the appellant guilty, which does not, of necessity, follow; and so the seventh is open to the like objection that it declared appellant guilty if he “deliberately shot at Carter while his back was turned. ’ ’ Aside from the impropriety in the state of case made by this record of predicating deliberateness of the shooting by appellant (see Beasley v. State, 64 Miss., 518" court="Miss." date_filed="1886-10-15" href="https://app.midpage.ai/document/beasley-v-state-7986476?utm_source=webapp" opinion_id="7986476">64 Miss., 518), it is not necessarily true that the appellant should have been convicted if he did shoot at Carter while Carter’s back was to him. That would, doubtless, usually be so, but there are circumstances under which it would not be true. The instruction should not dogmatically predicate guilt, as charged, therefore, of that solitary fact.
The fourth charge for the state is manifestly erroneous also, in telling the jury that “the use of a deadly weapon is a presumption of malice ” (thus it is written). This is clearly wrong in a case like this, where the circumstances attending the killing are fully shown, and hence there can be no room for presumptions, as held in Hawthorne v. State, 58 Miss., 778" court="Miss." date_filed="1881-04-15" href="https://app.midpage.ai/document/hawthorne-v-state-7985579?utm_source=webapp" opinion_id="7985579">58 Miss., 778. Of itself it would not, however, be reversible .error. Lamar v. State, 63 Miss., 265" court="Miss." date_filed="1885-10-15" href="https://app.midpage.ai/document/lamar-v-state-7986309?utm_source=webapp" opinion_id="7986309">63 Miss., 265.
We do not think the fifth instruction within the condemna*883tion of Buckley v. State, 62 Miss., 705" court="Miss." date_filed="1885-04-15" href="https://app.midpage.ai/document/buckley-v-state-7986220?utm_source=webapp" opinion_id="7986220">62 Miss., 705. It seems correct. It might have been much more clearly put, but it does not point out the defendant’s testimony, and can hardly be said to have told the jury that they could arbitrarily reject the testimony of any witness. It will be observed that the court below refused to grant the appellant even the instruction as to his being entitled to the benefit of any reasonable doubt arising out of the evidence. We all agree that these charges should have been given in this case. Speaking for myself alone, I think there is no criminal case in which the court can take thus from the jury the right to say whether or not there was such doubt, as clearly held in State v. Gonce, 4 Am. Cr. Rep., 68, and in McGuire v. State, 37 Miss., 378.
My brethren, however, think that the trial court has the power, in certain cases, to refuse all charges as to reasonable doubt, and it must be admitted that Singleton v. State, 71 Miss., 789, so holds. Neither the court nor the counsel in Singleton v. State refer to McGuire’s case, in 37 Miss., 378. That case was ably argued and well considered on this point. The learned attorney-general, in McGuire v. State, admitted that he could find no case supporting the view announced in Singleton v. State, 71 Miss, 782. It is manifest that the court in Singleton v. State failed to note the fact that the point it was deciding had been already decided in this state over thirty years before, exactly the other way, and for reasons as obvious as they are sound; for otherwise the court should have expressly overruled McGuire v. State, and not left it to mislead further. Singleton v. State imports into criminal procedure, where it- has no place, the rule followed in civil procedure, in very rare cases, of taking the case from the jury by a peremptory charge; for, to refuse a charge on reasonable doubt, is, of course, practically charging the jury to find the defendant guilty. Whether or not the evidence raises a reasonable doubt, is a question of fact and not of law, for the jury and not for the court. And, besides, it is, it seems to me, obvious that a charge as to rea*884sonable doubt is unlike a charge on some single isolated phase of the case, because the former announces the rule of law as to the quantum of evidence, which is to be applied to the whole case in any and all of its phases. No objection can be made to the rule in McGuire v. State on the score of practical justice, for, if the case be one in which it is perfectly clear that there could be no room whatever for reasonable doubt, the jury would certainly convict; and, if not, though the refusal to give the charge would be error, it would not be reversible error. But to hold that, as matter of law, such charge can be correctly refused is, in effect, to hold that the court can charge the jury to find the defendant guilty — too dangerous a doctrine, surely, to find any place in a jurisprudence framed under bills of rights in which, in the land of their origin, the right to maintain inviolate the jury trial, has been written in blood, with the point of the sword, as the final declaration of freemen on the subject. For the errors indicated, the judgment is
Reversed, and the cause remanded.