Whitfield, J.,
delivered the opinion of the court.
The first and second charges asked by the defendant informed the jury that, to deprive the defendant of the right of self-defense, he must have procured the pistol, intending at the time he procured it to bring on the difficulty, and use the pistol in the difficulty in overcoming or slaying the deceased if necessary. These instructions, as asked, are incorrect. It is not necessary, to take away the right of self-defense in such case, that the defendant should intend to use the pistol to overcome or slay his adversary. It is enough if he intends to use it in committing upon the deceased great bodily harm, or any felony. As asked by the defendant, therefore, the instructions should have embraced these qualifications. The modifications of the court, apparently, did not proceed upon this line, however; but, as written, told the jury, in the first modification, that it was enough to deprive the defendant of the right of self-defense, if he procured the pistol with a view of bringing on the difficulty, merely; and,-in the second modification, if he “armed himself with it, to be used in the fight” — to be used in any way — in overcoming his adversary, committing upon him any felony, or in merely inflicting injur y; however slight. The modifications, therefore, are also incorrect, as written. This court says, in Thomas v. State, 61 Miss., 60: “The second instruction was defective in omitting the qualification that the weapon was pro*417cured or prepared with a view of being used, if necessary, to overcome opposition. ” Long's Case, 52 Miss., 38, the opinion in which was delivered by the same eminent judge who delivered the opinion in Thomas' Case, accords perfectly with this, properly understood. It is at once, however, suggested by the case made by the testimony in the record that the jury must have understood these instructions, as modified, to mean that the ' ‘ use of the pistol in the fight,'' referred to by the court, was such use as would naturally be made with a deadly weapon, to wit, a deadly use — a use resorted to in overcoming opposition, or committing any felony upon the deceased. We do not, therefore, regard the errors in the modifications as reversible errors, but have noticed them that the charges may be properly framed on the new trial.
The seventh instruction should have been refused altogether, as being without any testimony to warrant it. There is no evidence that defendant was "passing his son-in-law’s house,” and casually ' ' stopped in. ’ ’
The observations hereinbefore made respecting charges numbers one and two for the defendant, both as originally asked and as modified, apply to charge number nine for defendant, as asked and as modified.
The modifications of instructions numbered one and nine for defendant, were made, as we are informed by the bill of exceptions, "after the argument for the defendant had closed;” and we are further informed, that ' ' the district attorney, in his closing argument to the jury, commented on the fact that the law, as announced and argued by defendant’s counsel in instructions one and nine, had been so charged by the court as to put an entirely new feature on the case. ’ ’ And this action of the court is assigned for error. In Wood's Case, 64 Miss., 761, ' ' additional instructions were given for the state after the argument had proceeded. ’ ’ The case here is much stronger for the defendant, and if it be conceded that the principle of that case governs this, the ground of complaint here is much stronger as *418to the propriety of the course pursued under the circumstances. Speaking for myself as to this matter, I desire very earnestly to commend, as the proper procedure in the matter of settling the instructions — at least in all important cases — the practice established in the fifth judicial district by the learned judge therein presiding. That practice is to have the jury retire at the close of the testimony, and require counsel on both sides then to present, seriatim, their instructions, hearing objections to the same, if any, and argument thereon. The instructions thus settled are then given to the jury, presenting the whole law in one connected view, after full consideration. I should regard it as a decided step forward in the wise administration of public justice if this eminently proper procedure were adopted in all the judicial districts of this state where instructions are only given upon written request. It would conduce in the highest degree towards securing the trial ‘ ‘ impartial ’ ’ in the sense of the constitution. So to proceed does not deprive the court of the power, at any time in the progress of the trial, of giving additional charges, or modifying charges, but it would almost surely make applications for additional charges or modifications unnecessary, and complaint, such as is here made, would disappear.
The fifth instruction for the state is erroneous. Sam. Bart v. State, ante, p. 408. But it is cured by the ninth given for the defendant.
The third instruction for the state is clearly erroneous. By it the jury are told that if the “defendant armed himself with a deadly weapon, and went to the house of the deceased, at night, to do some unlawful act, and, in pursuance of such unlawful design, he provoked a difficulty, and in such difficulty he killed deceased, then it was murder, although they may further have believed that deceased, at the time of the shooting which produced death, was striking defendant with a hoe or other deadly weapon. ” It is not the law that he would have been guilty of murder, in the case stated, if his purpose was to *419do ‘' some ’ ’ (that is, any) unlawful act, and, in pursuance of “such” (that is, any) “unlawful design,” provoked a difficulty, and killed the deceased. The instruction tells the jury that the malice aforethought, essential to constitute murder, may consist, in the case of one arming himself with a deadly weapon and going to another’s house, at night, in the intent to do any unlawful act. Again, it omits all reference to the qualification as to the defendant’s, having, in good faith, abandoned the contest. In Cannon v. State, 57 Miss., 147, Chief Justice Campbell says, with great clearness..: ' 'A mere grudge or malice, in its general sense, is not sufficient to bring a case within the principle that where one, having express malice towards another, kills that other, the killing is referable to the previous malice, and not to a provocation at the time of killing. To do this there must be a particular and definite intent to kill, so that the provocation is a mere collateral circumstance, the intent to kill existing before and independently of it. It is for the jury to say whether the act of killing proceeded from a deliberate purpose previously formed to kill, then and there carried into effect in pursuance of the previously concerted design, or whether the act was done because of the present circumstances, without regard to the previous design.” Says Lord Hale (1 Hale P. C., 479, 480): “ But Mr. Dalton think-eth it to be se def endeudo, though A. made the first assault, either with or without malice, and then retreated. It seems to me that if A. did retreat to the wall, upon a real intent to save his life, and then, merely in his own defense, killed B., it is se def endeudo. ’ ’ This is the doctrine now. 2 Bish. Grim. Law, § 566; Stoffer v. State, 15 Ohio St., 47 (a finely reasoned case). What is the testimony as to both aspects of this charge ? Aaron Scott says that defendant said he ' ' wanted to beat or frail hell out of him;” that deceased shut the door and defendant opened it; that when deceased picked up the hoe, having-gone out of the house to the cistern, defendant was still on the porch; that the moon was shining brightly, and that neither *420party had anything in his hands in the house, or when they went out in the yard; that, when defendant was knocked down the third time, he was outside the yard and deceased inside; and that defendant shot deceased from his knees as deceased advanced on him with the broken hoe handle in his hand. There is a failure to show just how the defendant got from the place where the conflict began, when defendant, being twice knocked down, still advanced, to. the place outside the yard— according to Aaron Scott — where he fired, having been a third time knocked down. Can it be confidently affirmed, on this testimony, that defendant went to the house intending to kill deceased, or commit a felony upon him ? If his purpose, from the outset, had been such, why did he not shoot sooner ? Why not begin in the house ? Why not fire the first time he was knocked down ? Why wait till he was knocked down outside the yard? Is it clear that he had not, in good faith, abandoned the fight, and shot only when and where he did to save his life? We express no opinion on these points. We suggest the inquiries only to illustrate the propriety of the conclusion at which we have arrived — that this charge was erroneous, is not cured, and may .have misled the jury. Wherefore the judgment is
Reversed.