McGehee, J.,
delivered the opinion of the court.
On the former appeal herein, as reported in 194 Miss. 729, 11 So. (2d) 442, we reversed and remanded this case because we were of the opinion that the evidence presented and issue of fact for the determination of the jury under proper instructions, and that it was therefore error for the trial court to have granted the peremptory-instruction in favor of the defendants. Accordingly, upon a retrial the issue was submitted to the jury for decision and with the result that a verdict was rendered by the jury of its own volition in favor of the defendants. Nevertheless, we are not relieved of the responsibility of now inquiring into whether or not the facts were decided under proper instructions in the light of the testimony, even though it may be said that the proof on both trials was substantially the same, and this is especially true if it can now be said that less excuse has been shown for the killing of plaintiffs’ intestate by the appellee Waldrop, while acting as a patrolman and special agent of the
appellee railroad company, than was disclosed on the former trial.
As is set forth in the statement of facts contained in the opinion of the court on the former appeal, and which were again disclosed on the second trial, the occasion of the difficulty in which David Jefferson was slain by the patrolman and special agent Waldrop was that the latter was holding him by the coat-tail while standing guard at his side with a pistol in his hand, because of the fact that Jefferson was intercepted a short distance from the railroad right of way on an exceedingly cold night with a sack of coal which he had either-gathered alongside the railroad track, after it had jolted off the cars, or which he had taken from a pile at the coal chute, the proof failing to show which except for the testimony of two other persons taken .into custody on the same occasion who said that Jefferson had inquired of them before going to the railroad whether or not he would be able to get some coal down there and that they told him that he may be able to ‘ ‘ scrape up ” a sack full.
It is claimed by the special agent Waldrop that while he was standing guard over Jefferson, and while the officer, Fred Conner, was taking the other two persons in custody nearly sixty feet .away, that Jefferson struck him with his fist and freed himself of the restraint, and that he thereafter kept “pounding” Waldrop while the latter was shooting him five times. And it was shown that Jefferson was shot once in the jaw, twice through his right arm, that he received a flesh wound in his side, and that the fatal shot was in the back near the spinal cord between his shoulders. The special agent was asked: “All right, now then, when you fired that first shot, Mr. Waldrop, that was, at what time?,” and he answered: “That was right after he hit me, the first time, and I had backed away from there, about six feet,” and he further testified that Jefferson had started “pounding” him with his fist again “after he had backed away, when the first shot was fired.” The defendants
introduced one of the other persons taken into custody who testified of having heard only one lick pass and some “scuffling,” hut no words interchanged. The officer Conner and the other witness heard no words or licks passed. However, Waldrop testified that when Jefferson hit him and freed himself from restraint that he asked him “What in the hell do you mean?! Have you gone crazy? ’ ’ and that every shot which he then fired at Jefferson was fired by him as he was hacking away and as Jefferson was approaching and striking him. He further testified that after the first shot was fired, the other four were fired while he was down on one knee, although the shot in Jefferson’s back ranged about one and one-half inches downward.
It further appears from the testimony of Waldrop himself on the last trial that Jefferson was searched by the officer Conner in the presence of the witness immediately before the shooting occurred, and all the proof disclosed that the deceased was unarmed.
There was testimony showing that Waldrop was about 45 years of age and weighed 188 pounds, whereas the deceased was 22 years of age and weighed 170 pounds.
In the case of Hall v. State, Misc., 1 So. 351, 352, this court said: “Nothing appears in the evidence tending to show that there was any disparity in age, size, or strength between the deceased and the defendant, and, in the absence of such evidence, the first instruction for the state was not erroneous. One may not repel the attack of an unarmed man, not his superior in physical power, by slaying him; for such attack does not furnish sufficient evidence to one of ordinary strength and courage to anticipate either that his life will be taken, or ‘great bodily harm’ done, such as justifies the killing of his adversary.” Again, the Court said in the case of Hill v. State, 94 Miss. 391, 49 So. 145, 146, that: “There may be many cases in which the disparity between the combatants is so overwhelming that the one of superior physi
cal power may inflict great bodily harm, or death itself, by mere blows with the hands or feet.”
On the second appeal of the Hill case, supra, reported in 97 Miss. 304, 52 So. 630, the court recognized that the rule in homicide cases to the effect that the great bodily harm, in contemplation of law, does not mean such harm as may be inflicted with the hands and feet, is subject to the modification that, where the deceased was a man larger and stronger than defendant, so that defendant was liable to receive great bodily injuries at his hands, defendant was justified in using a deadly weapon to protect himself, though the deceased was wholly unarmed. If this be the law in a criminal case where the accused is being tried for his life, then it should most assuredly be the law in a civil case where there is no disparity in size and strength in favor of the person slain and where the trial is one only for the determination of liability for damages.
There is present in the case at bar, however, the further circumstance that the special agent claimed that it reasonably appeared to him that Jefferson might have succeeded in taking away from him the loaded pistol that he then held in his hand, although he does not contend that the deceased ever made any attempt or manifested any intention to seize this weapon. But assuming that the case should have been submitted to the jury on the issue of self-defense, as we have already held in the former opinion, we think that the case should be again reversed and remanded for the reason that in the foregoing state of the record the jury was instructed, in substance, that “if Waldrop acted from hurried considerations, induced by reasonable evidence,” he would “not be held responsible for a mistake as to the extent of the actual danger,” and that he “was justified in considering or anticipating the consequences of a further attack, if such might appear to a reasonably prudent person to be present, urgent and otherwise unavoidable except by flight,” etc. This instruction virtually told the jury
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McGehee, J.,
delivered the opinion of the court.
On the former appeal herein, as reported in 194 Miss. 729, 11 So. (2d) 442, we reversed and remanded this case because we were of the opinion that the evidence presented and issue of fact for the determination of the jury under proper instructions, and that it was therefore error for the trial court to have granted the peremptory-instruction in favor of the defendants. Accordingly, upon a retrial the issue was submitted to the jury for decision and with the result that a verdict was rendered by the jury of its own volition in favor of the defendants. Nevertheless, we are not relieved of the responsibility of now inquiring into whether or not the facts were decided under proper instructions in the light of the testimony, even though it may be said that the proof on both trials was substantially the same, and this is especially true if it can now be said that less excuse has been shown for the killing of plaintiffs’ intestate by the appellee Waldrop, while acting as a patrolman and special agent of the
appellee railroad company, than was disclosed on the former trial.
As is set forth in the statement of facts contained in the opinion of the court on the former appeal, and which were again disclosed on the second trial, the occasion of the difficulty in which David Jefferson was slain by the patrolman and special agent Waldrop was that the latter was holding him by the coat-tail while standing guard at his side with a pistol in his hand, because of the fact that Jefferson was intercepted a short distance from the railroad right of way on an exceedingly cold night with a sack of coal which he had either-gathered alongside the railroad track, after it had jolted off the cars, or which he had taken from a pile at the coal chute, the proof failing to show which except for the testimony of two other persons taken .into custody on the same occasion who said that Jefferson had inquired of them before going to the railroad whether or not he would be able to get some coal down there and that they told him that he may be able to ‘ ‘ scrape up ” a sack full.
It is claimed by the special agent Waldrop that while he was standing guard over Jefferson, and while the officer, Fred Conner, was taking the other two persons in custody nearly sixty feet .away, that Jefferson struck him with his fist and freed himself of the restraint, and that he thereafter kept “pounding” Waldrop while the latter was shooting him five times. And it was shown that Jefferson was shot once in the jaw, twice through his right arm, that he received a flesh wound in his side, and that the fatal shot was in the back near the spinal cord between his shoulders. The special agent was asked: “All right, now then, when you fired that first shot, Mr. Waldrop, that was, at what time?,” and he answered: “That was right after he hit me, the first time, and I had backed away from there, about six feet,” and he further testified that Jefferson had started “pounding” him with his fist again “after he had backed away, when the first shot was fired.” The defendants
introduced one of the other persons taken into custody who testified of having heard only one lick pass and some “scuffling,” hut no words interchanged. The officer Conner and the other witness heard no words or licks passed. However, Waldrop testified that when Jefferson hit him and freed himself from restraint that he asked him “What in the hell do you mean?! Have you gone crazy? ’ ’ and that every shot which he then fired at Jefferson was fired by him as he was hacking away and as Jefferson was approaching and striking him. He further testified that after the first shot was fired, the other four were fired while he was down on one knee, although the shot in Jefferson’s back ranged about one and one-half inches downward.
It further appears from the testimony of Waldrop himself on the last trial that Jefferson was searched by the officer Conner in the presence of the witness immediately before the shooting occurred, and all the proof disclosed that the deceased was unarmed.
There was testimony showing that Waldrop was about 45 years of age and weighed 188 pounds, whereas the deceased was 22 years of age and weighed 170 pounds.
In the case of Hall v. State, Misc., 1 So. 351, 352, this court said: “Nothing appears in the evidence tending to show that there was any disparity in age, size, or strength between the deceased and the defendant, and, in the absence of such evidence, the first instruction for the state was not erroneous. One may not repel the attack of an unarmed man, not his superior in physical power, by slaying him; for such attack does not furnish sufficient evidence to one of ordinary strength and courage to anticipate either that his life will be taken, or ‘great bodily harm’ done, such as justifies the killing of his adversary.” Again, the Court said in the case of Hill v. State, 94 Miss. 391, 49 So. 145, 146, that: “There may be many cases in which the disparity between the combatants is so overwhelming that the one of superior physi
cal power may inflict great bodily harm, or death itself, by mere blows with the hands or feet.”
On the second appeal of the Hill case, supra, reported in 97 Miss. 304, 52 So. 630, the court recognized that the rule in homicide cases to the effect that the great bodily harm, in contemplation of law, does not mean such harm as may be inflicted with the hands and feet, is subject to the modification that, where the deceased was a man larger and stronger than defendant, so that defendant was liable to receive great bodily injuries at his hands, defendant was justified in using a deadly weapon to protect himself, though the deceased was wholly unarmed. If this be the law in a criminal case where the accused is being tried for his life, then it should most assuredly be the law in a civil case where there is no disparity in size and strength in favor of the person slain and where the trial is one only for the determination of liability for damages.
There is present in the case at bar, however, the further circumstance that the special agent claimed that it reasonably appeared to him that Jefferson might have succeeded in taking away from him the loaded pistol that he then held in his hand, although he does not contend that the deceased ever made any attempt or manifested any intention to seize this weapon. But assuming that the case should have been submitted to the jury on the issue of self-defense, as we have already held in the former opinion, we think that the case should be again reversed and remanded for the reason that in the foregoing state of the record the jury was instructed, in substance, that “if Waldrop acted from hurried considerations, induced by reasonable evidence,” he would “not be held responsible for a mistake as to the extent of the actual danger,” and that he “was justified in considering or anticipating the consequences of a further attack, if such might appear to a reasonably prudent person to be present, urgent and otherwise unavoidable except by flight,” etc. This instruction virtually told the jury
that after Jefferson had first struck Waldrop with his fist, the latter could anticipate a “further attack,” after he had “backed away about six feet,” and at a time when the deceased was not trying to seize the weapon; and that he could shoot him in the back if he thought he could thereby prevent a further attack by the deceased, whether such attack was then in progress or imminent and impending or not. It has never been the law in this state that one is justified in taking the life of another provided he acts from “hurried considerations” and anticipates a “further attack.” The slayer must have believed, and had good reason for believing, at the time he kills another that he is then in danger of losing' his own life or sustaining great bodily harm at the hands of the deceased, and he is not justified in slaying his adversary because he may anticipate a further attack unless he leaves the scene of the difficulty.
The court further instructed the jury for the defendants that even though neither Conner nor Waldrop had a warrant for the arrest of the said Jefferson, and that he was unlawfully arrested, and had the- right to resist such arrest by striking Waldrop with his fists, yet that if the jury believed (not if Waldrop believed) that if the said Jefferson, by continuing the assault would have gotten Waldrop (not if he was at that time) in a position where as a reasonably prudent person he might reasonably believe that his life would be put in danger, or he would suffer great bodily harm, then Waldrop had the right to shoot and kill said Jefferson even though he was unarmed and was only striking Waldrop with his fists. This instruction ignores the question of whether or not the deceased was trying to seize the pistol from Waldrop,' intending thereby to disarm him and at the same time to arm himself, and also fails to require that Waldrop should have been in immediate danger, either actual or reasonably apparent to him, instead of to the jury, at the time of the shooting. Moreover, the instruction was in conflict with one granted to the plaintiffs as to the rights of Jef
ferson to use such force as was reasonably necessary to free himself from the arrest, if it was unlawful.
From what we have said, it follows that the case should be reversed and remanded.
Reversed and remanded.