Ethridge, J.,
delivered the opinion of the court.
The appellant was indicted for the murder of her husband, Freeman Woodward, and on trial was convicted of manslaughter and sentenced to two years-in the state penitentiary, from which judgment this appeal is prosecuted.
Appellant and the deceased had been married about two years, and had separated several times, the last time being about two weeks prior to the fatal difficulty. The deceased had been married several times, and had abandoned *617his wife each time for some other woman, whom he after-wards married. At the time of the separation he seems to have taken np with another woman, and sned out a writ .of replevin for his personal household effects, which were surrendered to the officer serving the writ, the appellant surrendering a finger ring, among other things. At the time the writ was served and the property taken the appellant stated to the officer that she wanted him to keep her husband away from her, that she was afraid of him, and that if he came back up there they might need a coroner. A few nights after this writ of replevin was served the deceased came to the house of appellant and tried to gain admittance to the house, but she declined to open the door. He then stated to the appellant he was coming the next day and get a hog which was penned on the premises, and which appellant claimed was her property. The appellant told the deceased he could not get the hog, that it was her property, and deceased stated he would come and get the hog and come prepared, and went away, returning the next morning with a horse and wagon which he drove past the house and to the rear of the premises where the hogpen was situated, and stopped near said pen and was talking to some other negroes. The appellant, seeing him pass and drive his wagon around near the hogpen, took the pistol in hand and went out where the deceased was. As to what happened after she reached the place where the deceased was the evidence is conflicting. The state witnesses testified that she came out and accosted the deceased about the hog, telling him he could not take it; that finally the deceased said he had not said he would, and asked her what she was doing with the pistol; that she told him she would burn him up with the pistol if he took the hog. One of the state witnesses testified that she was mad and crying, and directly opened fire upon the deceased, firing two shots, one of which took effect, and from which deceased died about four days afterwards. The defendant and her witnesses testified that she went out armed vfith a pistol, and that a conversation ensued in which she told deceased *618that he could not have the hog, and that defendant said he would take it, and these statements were reiterated several times, and deceased asked her what she was doing with the pistol, and she told him she would bum him up with it if he took the hog; that deceased said he would take the hog and started for an axe which lay near him, and as he reached for the axe she opened fire and fired two shots, one of which felled the deceased; that he fell within about three feet of .the axe. All of the testimony tended to show that the defendant and the deceased were sevejjal feet apart at .the time. The state’s' evidence showed that he was some ten or twelve feet, and defendant showed that he was about nine feet. The state’s evidence also showed that he was several feet from the axe, and that he made no movement towards the axe, while the defendant’s testimony showed he was about three feet from the axe and was reaching for it.
The state obtained two instructions which are alleged to be erroneous and are as follows:
“The court instructs the jury for the state that, if you believe from the evidence beyond every reasonable doubt that the defendant, Lizzie Woodward, shot Freeman Woodward, the deceased, when the defendant was in no danger, real or apparent, of great bodily harm at the hands of deceased, then she is guilty as charged in the indictment, and this is true regardless of every other fact in this case.”
“The court instructs the jury for the state that there are five verdicts that you may find in this case as follows:
“ ‘We, the jury, find the defendant guilty as charged in the indictment.’
“In this event it would be the duty of the court to sentence the defendant to hang. Or,
“ We, the jury, find the defendant guilty as charged in the indictment and fix her punishment at imprisonment in the penitentiary for life.’
“In that event it would be the duty of the court to sentence her to the penitentiary for life. Or,
*619“ ‘We, the jury, find the defendant guilty as charged in the indictment and disagree as to her punishment.’
“In that event it would be the duty of the court to sentence her to the penitentiary for life. Or,
“ ‘We, the jury, find the defendant guilty of manslaughter.’ " '
“ ‘We, the jury, find the defendant not guilty.’ ”
It is objected to the first instruction that it does not deal with the heat of passion, and that the concluding clause, “and this is true regardless of every other fact in this case,” necessarily excludes manslaughter from the finding of the jury, while the second instruction tells the jury that they may find the defendant guilty of manslaughter as one of the verdicts which might be rendered iii the case; that the two instructions are inconsistent. It is also insisted that there is no manslaughter because the testimony for the state shows the killing to be murder while the evidence for the defendant establishes a justifiable homicide; that the doctrine of the Rester Case, 110 Miss. 689" court="Miss." date_filed="1916-03-15" href="https://app.midpage.ai/document/rester-v-state-7992268?utm_source=webapp" opinion_id="7992268">110 Miss. 689, 70 So. 881, and of Walker v. State, 123 Miss. 517" court="Miss." date_filed="1920-10-15" href="https://app.midpage.ai/document/walker-v-state-7993740?utm_source=webapp" opinion_id="7993740">123 Miss. 517, 86 So. 337, became applicable; and that appellant should be discharged because acquitted of murder.
We have carefully considered this assignment of error with the evidence in the record, and we think it is not well taken because the jury were warranted in finding manslaughter in this case. Whenever the quality of the act of killing is involved, the line of demarcation between murder and manslaughter may be hard to distinguish. There is frequently a twilight zone' between the two when it is hard to distinguish whether the killing is done with malice aforethought or whether it be done in the heat of passion caused by adequate provocation, and sometimes whether the facts and circumstances upon which the defendant acts are such as would cause a reasonably prudent man to so act under the same circumstances or not is hard to define and distinguish. In such case a great deal of latitude is allowed the jury in passing upon the facts. The circumstances in evidence in this record show that the con*620duct of the deceased under all of the circumstances was such as to be highly exasperating, and the evidence shows that the appellant was greatly wrought up at the time of the killing caused by the conduct of the deceased. It is also in evidence that the deceased at the time of the shooting was several feet removed from the appellant, and she may have believed that she was in danger of bodily harm because of the movement of the deceased-towards the axe, viewed in the light of his threat of the previous night, and of all of the surrounding circumstances testified to by the witnesses. Where a person acts upon appearances and under the belief that he is in danger of great bodily harm at the hands of his adversary, and such facts are not sufficient for- a reasonably prudent man to so believe, and the acts are not prompted by malice, but by a want of reasonable courage, we think under the statutes of our state the jury would be warranted in finding a verdict of manslaughter. Taking all of the evidence together we think the jury had ample, evidence to draw an inference supporting-manslaughter in its verdict.
It is also assigned for error that the court erred in overruling the motion for a new tidal on the ground that the trial judge had a conversation with a member of the jury outside of the presence of. .the defendant, and that in such conversation the juror desired to know the least penalty for the conviction of manslaughter, and that the judge stated he could not tell the maximum and minimum punishment, but that manslaughter could be punished by a fine, and that the juror asked, if they convicted of manslaughter with recommendation of mercy, what punishment the court Avould inflict, and the judge told him he could not give this information, but he would not disregard the jury’s recommendation in such case. This matter is set forth in an affidavit filed by the attorney for the appellant after the rendition of the verdict and is not contained in any bill of exceptions. In his affidavit he states that a bailiff; came to the room where the attorney and the judge were in conversation and told the trial judge that a juror wished to *621see him; that the judge went into the jury room and engaged in conversation with members of the jury; that the affiant was not close enough to hear the-conversation between the judge and the jury, but, when the judge returned to where the affiant was seated, the judge stated to the affiant that one of the jurors had asked him to tell what the lowest penalty was that could be imposed for manslaughter ; that the trial judge stated to the juror that under the law he had no right to tell the jury what the maximum or minimum penalty was, but that a person convicted of manslaughter could be fined; that the juror then asked the judge what penalty he would impose in the event the jury returned a verdict of manslaughter asking the mercy of the court; that the trial judge stated to the juror that he could not tell him, but that the juror co-uld rest assured that he would not disregard the jury’s recommendations; that soon after this conversation was reported to the affiant by the trial judge the jury returned a verdict to the court, and while the judge was on the bench the verdict was handed him by one of the jurors, and that the judge read the verdict as follows: “We, the jury, find the defendant guilty of manslaughter and recommend the mercy of the court.” That thereupon immediately the court discharged the jury, and about one.hour latex*, after-a number of the jurors had gone, affiant discovered that the verdict by the jury read as follows: “We, the jxxry find the defendant gxxiltv of manslaughter and recommend the lowest penalty possible,” and that affiant had no opportunity to poll the jury.
In the case of Powers v. State, 83 Miss. 691" court="Miss." date_filed="1903-10-15" href="https://app.midpage.ai/document/powers-v-state-7989112?utm_source=webapp" opinion_id="7989112">83 Miss. 691, 36 So. 6, this coxxrt held that a bill of exceptions was the proper remedy to present any matter occurring at the trial that was xxot properly a part of the record. See the discussion at pages 699 ,and 700 of the Mississippi report of this case and the authorities there referred to. Whether the bill of exceptions is the exclusive remedy or not, it was the duty of the appellant to promptly make objections and take exceptions on learning what happened, and there *622is no showing in the record that there was any objection made until after the verdict was rendered. A person on trial for crime should not be permitted to sit silent and secure whatever benefit might flow to him by not objecting, and, after the verdict, then for .the first time raise objection. He will not be permitted to gamble with the jury’s verdict in this way, but he must promptly elect what action he will take, and, if no objection be made after knowledge of the facts, the objection will be waived.
The judgment of conviction will therefore be affirmed.
Affirmed.