Smith, C. J.,
delivered the opinion of the court.
The appellant was indicted for murder, and convicted of manslaughter. The deceased, Prank Prash, was shot by the appellant on the night of May 28, 1919, with a pistol, the bullet entering the neck from the front and lodging in the spinal column at the base of the brain, resulting in paralysis from his arms down, and from which he died on October 24th following.
Jim Frash, a brother of the deceased, was an employee of the Prisco Railroad, working in the yards thereof at Amory in the roundhouse af night, and on the night in question the deceased’s mother had sent him to the roundhouse for the purpose of bringing his brother home, for the reason that she was afraid of trouble arising between him and thé appellant, as will hereafter more fully appear. The killing occurred a short distance from the roundhouse. [530]*530The only persons present at the time were the deceased, the appellant, and one Roy Mason, who was not introduced as a witness.
The mother of the deceased testified: That he told her, several times after he was shot, the last time being three days before his death, that he failed to find his brother in the roundhouse, and went out into the yard, thinking that he might find him on an engine; but, failing to dó so, he started back into the roundhouse, when the appellant and Roy Mason stepped out from behind a railroad car, and the appellant said, “Stop, boy!” and shot him. That he wanted to tell the appellant that he had not come there for any trouble, but he did not give him time to talk. That both the appellant and Roy Mason were armed, and that he (the deceased) had a pistol, but it was in his pocket. That the deceased also several times said to her: “Mama, why did Dr. Beauchamp shoot me? I never'harmed Dr. Beauchamp. I never harmed any one.” No objection was made to this declaration, other than to the last clause thereof; that is: “Mama, why did Dr. Beauchamp shoot me? I never harmed Dr. Beauchamp. I never harmed any one”- — the ground Of this objection being that it is the statement of a mere opinion, and not of a fact.
Only one shot was fired, and immediately thereafter the appellant and Roy Mason left the scene. Several parties who heard the shot went to the scene of the difficulty, and found the deceased lying on his face, unable to move, and they picked him up and carried him to the roundhouse, from which he was removed to an infirmary in Amory, and later from there to an infirmary in Birmingham, Ala., where he died.
The appellant testified: That he, Roy Mason, and several others met in a park just* across the railroad from the railroad roundhouse on the night in question, and while they were there the deceased and another passed going toward the deceased’s home. That they, the appellant and his companions, decided to go to the roundhouse and try to induce Jim Frash, the deceased’s brother, to leave town, [531]*531as he had promised, because of an insult they claimed he had given several ladies some time prior thereto, and that it was their intention not to use any violence against him if he declined to leave, but to prosecute him criminally. That when they arrived near the roundhouse it was agreed that trouble with Jim Frash was less likely to arise if the appellant and Boy Mason remained behind. That consequently they did not go in the roundhouse, but walked up the track a short distance to the foreman’s office, and stood near it and by several coal cars that were on one of the railroad tracks. That the railroad yard, particularly in that vicinity, was well lighted. That while they were standing near this office they saw the deceased with two companions come out of the roundhouse, go into the foreman’s office, and that he immediately came back out of the office and re-entered the roundhouse about forty-five or fifty feet from where the appellant and Mason were standing. What then occurred can best be told in the appellant’s own language:
“Q. Now, what did you then do when you saw this young man go back into the roundhouse? A. I turned south and walked the length of the car; there were two cars separated by about six or eight feet, I suppose, and I passed in between these two cars going towards the roundhouse so I could see in the roundhouse window to see which direction he would go. I knew that if I knew where he was I could keep out of his way. That was my idea; wanting to see where he was, so I could keep out of his way.
“Q. Well, as you passed between these cars where you could get a vieAV of the roundhouse and so on, tell what occurred. A. Just as I stepped from between the cars, from in between the cars, Frank Frash was in eight or ten feet of me, coming towards me from the roundhouse door. As soon as he saw me he stopped and put his right hand in his right hip pocket, attempted to pull his gun, and I spoke to him, says, ‘Hello, Frash,’ and he still attempted to get his gun out — seemed to be having trouble, and he put his left hand on his pocket, like this (illustrating) to hold it, [532]*532and I spoke to Mm again: ‘Don’t do that! Don’t do that!’ and he says, ‘I’ll get you!’ and, after he pulled his gun out I shot.
“Q. What was the position of his gun in his hand at the time you fired? A. Well he had his hand up about like this (illustrating). . . .
“Q. Tell, the jury, Doctor, why you felt it necessary to shoot on that occasion, if you did feel that it was necessary. A. Well, the boy told me he ivas going, to get me, and pulled his gun out and had it in his hand, and I believed that he ivas going to shoot me, and I shot him in self-defense.”
The appellant offered, but was not permitted, to prove by the mayor of the town of Amory: That on the morning of the day of the killing the Avitness told the deceased that on the day before the deceased’s brother Jim had been accused by the appellant and Roy Mason in the witness’ office with having insulted several ladies some time prior thereto, and that the appellant had there slapped Jim, Avho thereafter, at the mayor’s suggestion, had agreed to leave town temporarily, and that he (the mayor) thought that was the best course for Jim to pursue. That the appellant then said:
“Jim’s got a job. He is not going to leave here. He is going to work to-night at ten o’clock. And the first one ■of them God damn son of a bitches comes fooling around there, I am going to leave him, and you will find him around there.”
When the witness told the deceased that the appellant had slapped his brother, the deceased said:
“That God damn red-headed son of a bitch won’t slap me.”
This conversation Avas not communicated to the appellant. On the afternoon of'the day of the killing a railroad employee whose duty it was to call the employees for work in the roundhouse, while looking for Jim Frash, suav the deceased in a drug store, and asked him if he knew whether Jim would work that night, to which the deceased replied:
[533]*533“By God, he had better work.”
One of the railroad employees had the following conversation with the deceased in the roundhouse just a few minutes before the killing:
“A. Well, I told Frank that I had been informed that his brother had gone home, and if I was him I’d go on home and not have any trouble; that his brother wouldn’t be hurt.
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Smith, C. J.,
delivered the opinion of the court.
The appellant was indicted for murder, and convicted of manslaughter. The deceased, Prank Prash, was shot by the appellant on the night of May 28, 1919, with a pistol, the bullet entering the neck from the front and lodging in the spinal column at the base of the brain, resulting in paralysis from his arms down, and from which he died on October 24th following.
Jim Frash, a brother of the deceased, was an employee of the Prisco Railroad, working in the yards thereof at Amory in the roundhouse af night, and on the night in question the deceased’s mother had sent him to the roundhouse for the purpose of bringing his brother home, for the reason that she was afraid of trouble arising between him and thé appellant, as will hereafter more fully appear. The killing occurred a short distance from the roundhouse. [530]*530The only persons present at the time were the deceased, the appellant, and one Roy Mason, who was not introduced as a witness.
The mother of the deceased testified: That he told her, several times after he was shot, the last time being three days before his death, that he failed to find his brother in the roundhouse, and went out into the yard, thinking that he might find him on an engine; but, failing to dó so, he started back into the roundhouse, when the appellant and Roy Mason stepped out from behind a railroad car, and the appellant said, “Stop, boy!” and shot him. That he wanted to tell the appellant that he had not come there for any trouble, but he did not give him time to talk. That both the appellant and Roy Mason were armed, and that he (the deceased) had a pistol, but it was in his pocket. That the deceased also several times said to her: “Mama, why did Dr. Beauchamp shoot me? I never'harmed Dr. Beauchamp. I never harmed any one.” No objection was made to this declaration, other than to the last clause thereof; that is: “Mama, why did Dr. Beauchamp shoot me? I never harmed Dr. Beauchamp. I never harmed any one”- — the ground Of this objection being that it is the statement of a mere opinion, and not of a fact.
Only one shot was fired, and immediately thereafter the appellant and Roy Mason left the scene. Several parties who heard the shot went to the scene of the difficulty, and found the deceased lying on his face, unable to move, and they picked him up and carried him to the roundhouse, from which he was removed to an infirmary in Amory, and later from there to an infirmary in Birmingham, Ala., where he died.
The appellant testified: That he, Roy Mason, and several others met in a park just* across the railroad from the railroad roundhouse on the night in question, and while they were there the deceased and another passed going toward the deceased’s home. That they, the appellant and his companions, decided to go to the roundhouse and try to induce Jim Frash, the deceased’s brother, to leave town, [531]*531as he had promised, because of an insult they claimed he had given several ladies some time prior thereto, and that it was their intention not to use any violence against him if he declined to leave, but to prosecute him criminally. That when they arrived near the roundhouse it was agreed that trouble with Jim Frash was less likely to arise if the appellant and Boy Mason remained behind. That consequently they did not go in the roundhouse, but walked up the track a short distance to the foreman’s office, and stood near it and by several coal cars that were on one of the railroad tracks. That the railroad yard, particularly in that vicinity, was well lighted. That while they were standing near this office they saw the deceased with two companions come out of the roundhouse, go into the foreman’s office, and that he immediately came back out of the office and re-entered the roundhouse about forty-five or fifty feet from where the appellant and Mason were standing. What then occurred can best be told in the appellant’s own language:
“Q. Now, what did you then do when you saw this young man go back into the roundhouse? A. I turned south and walked the length of the car; there were two cars separated by about six or eight feet, I suppose, and I passed in between these two cars going towards the roundhouse so I could see in the roundhouse window to see which direction he would go. I knew that if I knew where he was I could keep out of his way. That was my idea; wanting to see where he was, so I could keep out of his way.
“Q. Well, as you passed between these cars where you could get a vieAV of the roundhouse and so on, tell what occurred. A. Just as I stepped from between the cars, from in between the cars, Frank Frash was in eight or ten feet of me, coming towards me from the roundhouse door. As soon as he saw me he stopped and put his right hand in his right hip pocket, attempted to pull his gun, and I spoke to him, says, ‘Hello, Frash,’ and he still attempted to get his gun out — seemed to be having trouble, and he put his left hand on his pocket, like this (illustrating) to hold it, [532]*532and I spoke to Mm again: ‘Don’t do that! Don’t do that!’ and he says, ‘I’ll get you!’ and, after he pulled his gun out I shot.
“Q. What was the position of his gun in his hand at the time you fired? A. Well he had his hand up about like this (illustrating). . . .
“Q. Tell, the jury, Doctor, why you felt it necessary to shoot on that occasion, if you did feel that it was necessary. A. Well, the boy told me he ivas going, to get me, and pulled his gun out and had it in his hand, and I believed that he ivas going to shoot me, and I shot him in self-defense.”
The appellant offered, but was not permitted, to prove by the mayor of the town of Amory: That on the morning of the day of the killing the Avitness told the deceased that on the day before the deceased’s brother Jim had been accused by the appellant and Roy Mason in the witness’ office with having insulted several ladies some time prior thereto, and that the appellant had there slapped Jim, Avho thereafter, at the mayor’s suggestion, had agreed to leave town temporarily, and that he (the mayor) thought that was the best course for Jim to pursue. That the appellant then said:
“Jim’s got a job. He is not going to leave here. He is going to work to-night at ten o’clock. And the first one ■of them God damn son of a bitches comes fooling around there, I am going to leave him, and you will find him around there.”
When the witness told the deceased that the appellant had slapped his brother, the deceased said:
“That God damn red-headed son of a bitch won’t slap me.”
This conversation Avas not communicated to the appellant. On the afternoon of'the day of the killing a railroad employee whose duty it was to call the employees for work in the roundhouse, while looking for Jim Frash, suav the deceased in a drug store, and asked him if he knew whether Jim would work that night, to which the deceased replied:
[533]*533“By God, he had better work.”
One of the railroad employees had the following conversation with the deceased in the roundhouse just a few minutes before the killing:
“A. Well, I told Frank that I had been informed that his brother had gone home, and if I was him I’d go on home and not have any trouble; that his brother wouldn’t be hurt. He remarked and said that he was going to kill that red-headed son of a bitch for what he di<l to his brother in the mayor’s office.
“Q. And what did he say, if anything, or do, with reference to any directions? A. Well, he said he was right down there, and pointed in the direction of where he was afterwards shot.
“Q. Pointed in the direction of Avhere he was afterwards shot? A. Yes, sir.”
The appellant has red hair, and was the only one in his party on the occasion in question whose hair is of that color. This witness ivas impeached by proof that he had said that he did not know anything about the case.
After the dying declaration had been admitted and while the appellant was introducing evidence on the main issue he offered, but was not permitted, to prove that on June 5th, before the deceased died in October, he had said that he expected to get well and go back to Amory.
One of the instructions to the jury granted at the request of the state defined the crime of manslaughter, and charged the jury that, if they believed beyond a reasonable doubt that the appellant was guilty of that crime, to return a verdict therefor. The principal contention of the appellant is that the evidence will not sustain a conviction for manslaughter, for the reason that it appears therefrom that he is either innocent or guilty of murder, and that consequently the court below, under the rule announced in Restar v. State, 110 Miss. 689, 70 So. 881, should not have charged the jury on the law of manslaughter; that for this reason the judgment of the court should be reversed, and since the appellant has been acquitted of murder, and can[534]*534not on the evidence be convicted of manslaughter, he should be discharged. On this question the judges are equally divided, Judges Cook, Sykes, and Smiti-i being of the opinion that the case falls within and is controlled by the Rester Case, and Judges Anderson, Ethridge, and Holden being of the opinion that it can be differentiated from, and is therefore not controlled by, that case.
The question which the deceased asked his mother, “Mama, why did Dr. Beauchamp shoot me?” followed by the statement: “I never harmed Dr. Beauchamp. I never harmed' any one” — is not merely the expression of an opinion, but is in effect a statement of fact by the deceased that Mr. Beauchamp shot him for nothing, and was therefore properly admitted in evidencia. Jackson v. State, 94 Miss. 83, 47 So. 502; House v. State, 94 Miss. 107, 48 So. 3, 21 L. R. A. (N. S.) 840.
The statement made by the deceased that he expected to return to Amory and visit his friends was-offered on the theory, not that it would! affect the admissibility of the dying declaration, but that it might be considered by the jury in determining its credibility. But how it could affect the credibility of a declaration, made months thereafter, is not apparent. Its exclusion therefore was not error.
The statement made by the deceased to the mayor of Amory that, “And the first one of them Cod dam son of a bitches comes fooling around there, I am going to leave him, and you will find him around there,” was a threat to use personal violence against the appellant and any of his associates who should attempt to interfere with his brother’s continuing to work at his job, and should have been admitted in evidence. If this threat was made by the deceased, which fact was for the jury to determine, it would have tended to corroborate the claim of the appellant that the deceased, and not he, was the aggressor in the difficulty in which the deceased was killed. In addition to the threat so much of what the witness told the deceased that induced him to malee the threat should also have been admitted in order that the significance of the words used by the de[535]*535ceased might be clearly understood. Clark v. State, 123 Miss. 147, 85 So. 188. This would not have given rise to a collateral inquiry as to what occurred in the office of the witness, for what may have in fact there occurred would not be here material, for the significance of the threat made by the deceased must be determined by what the witness told the deceased had there occurred.
For the error in the exclusion of this evidence the judg-meiit of the court below wall be reversed, and the cause remanded.
Judges Anderson and Ethridge are of the opinion that the error in the exclusion of this evidence was not prejudicial to the defendant, and consequently that the judgment of the court below should be affirmed.
Reversed and remanded.