| Miss. | Oct 15, 1883
delivered the opinion of the court.
There was no error in refusing the continuance, no sufficient efforts to procure the attendance of the witness having been shown. The defendant obtained more than he was really entitled to in having his affidavit submitted to the jury as the testimony of the absent witness. The remarks of the district attorney and of counsel for the defendant, made in the presence of the jury, as to their willingness to contribute toward the expense of feeding the jurors during the trial were highly improper, but we cannot conceive that they affected the verdict. Neither party actually contributed anything, as the jurors must have known, and on the score of attempting to obtain undue favor with them by their offers, both parties were alike guilty, except that the defense far outbid the prosecution in amount.
Neither the first nor the second instruction for the State is free from objection. It was enough to tell the jury iñ the first instruction that they might consider the situation of the defendant and the motives he had to induce him to testify falsely. The addition of the words, that it was their duty to weigh his testimony carefully and with great caution, was erroneous as constituting a charge upon the weight of evidence. It was the duty of the jury to give his testimony just such weight as they thought it, under the circumstances, entitled to. When they have done this they have done all that the State has a right to demand. , The second instruction was defective in omitting the qualification that the weapon was procured or prepared with a view of being used if necessary to overcome opposition. These instructions must cause a reversal unless, taking the testimony for the defense as absolutely true, the verdict is the only one that would have been legally correct.
The facts as stated by the defendant himself are as follows : There had been a bitter animosity between the slayer and the slain, and mutual threats of killing had been expressed. A compromise and settlement had been brought about by mutual friends, but after its acceptance by both sides the deceased had expressed an intention of killing the defendant. A few days after knowledge of this threat had been ■ communicated to the defendant both parties at
Viewed in the most favorable light for the defendant, his act in preparing his weapon for quick and easy access, and walking up to the deceased and calling out, when he had approached to within a few feet, “ I am ready for you to shoot,” was a challenge to fight with deadly weapons, an impromptu duel. It is impossible to place any more favorable construction than this upon such acts and words. He who slays another in a duel, whether formal or suddenly improvised, and however fairly conducted, is legally a murderer; but he who walks up behind an antagonist unaware of his presence and invites or challenges him to fight, and then shoots him in the back before he can turn or draw a weapon, is not a duelist, but an assassin. It is true that the defendant says that he shot because the deceased threw his hand behind him and thereby induced him to
Affirmed.