| Miss. | Mar 15, 1903
delivered the opinion of the court.
The grand jury of Neoshoba county, March 8, 1902, indicted IT. H. Rogers for the murder of Thomas A. Byrd, and on December 23, 1902, he was tried, convicted, and sentenced to life imprisonment; and the case is here on appeal, with a record challenged by the defendant with forty-four assignments of error. We will consider but one of the numerous errors assigned, in so far as it relates to two charges given for the state — Nos. 2 and 5.
Charge No. 2 is in the following language: “If the jury shall believe from the evidence, beyond all reasonable doubt, that, in the difficulty in which Byrd lost his life, that the defendant was the aggressor and provoker of the difficulty, and that he prepared himself for it by arming himself with a deadly weapon, to wit, a pistol, and sought out the deceased and provoked the difficulty, intending to use his pistol and overcome his adversary,' if necessary, and that he then shot and killed Byrd, he is guilty of murder, and the jury should so find.”
This instruction charges the jury, in substance, that if they believe that the defendant was the aggressor and provoked the difficulty, and armed himself-for it, and- sought out Byrd, intending to use the pistol and overcome Byrd, if necessary, and
. The fifth instruction given for the state is as follows: “If the jury shall believe from the evidence, beyond all reasonable doubt, that there was trouble or misunderstanding at the time of the homicide between Byrd and Rogers, and that'they agreed to face each other about it, and that, in pursuance of the purpose to meet and face each other, each of them armed himself with a deadly weapon, to wit, a pistol, and that they then met and faced each other, an.d that Rogers in that meeting shot and killed Byrd, he is guilty of murder, and the jury should so find.”
This instruction told the jury that they should convict Rogers of murder if they believed there was trouble or misunderstanding between Rogers and Byrd at the time of the homicide, and that they agreed to face each other, and each'-armed himself with a pistol, and that they did so face each other, and Rogers killed Byrd at the meeting. The error in this instruction is too manifest for argument or citation of authorities. There is no evidence in the case on which to base such a charge. There is no evidence that the parties had agreed to such a meeting. The preliminary negotiations of the friends and relatives of the unfortunate girl, and the part played in this effort to get matters amicably adjusted, by Rogers, were all consistent with a lawful purpose. Such a meeting as subsequently took place between Rogers and Byrd, in which Byrd lost his life, falls far short of a prearranged meeting for a duel. In the one case the meeting was to adjust a misunderstanding, and remove, if possible, all stain from the character of the girl.
The state asked nine instructions, and, as is usual in such cases, falls an easy victim to too many instructions. “The old paths are the best paths.” As said by this court in Patterson v. State, 75 Miss., 675, 23 South., 647, by Judge Whitfield: “Persons at their country’s bar are not to be charged into the penitentiary by a court as a matter of law, but to be put there by verdicts of juries, finding their guilt as a fact.” A circuit judge can hardly keep a nisi prius trial free of error where counsel, unconsciously swayed by their interest in the case, demand so much at his hands, and at a time when both time and opportunity preclude an examination of the authorities. Prine v. State, 73 Miss., 842, 19 South., 711; Patterson v. State., 75 Miss., 675, 23 South., 647.
Reversed and remanded.