Sykes, J.,
delivered the opinion of the court.
The appellant, John Martin, in the circuit court of Alcorn county, was convicted of murder for the killing of Walter Taylor, and was sentenced by the court to imprisonment in the penitentiary for life, from which judgment this appeal is prosecuted. The testimony in the case for the state and the defendant was conflicting. The testimony of the state was to the effect that several months previous to the killing the appellant, John Martin, and the deceased had had a fight over a negro woman, in which fight the deceased cut the appellant several times with a penknife; that appellant had stated that he intended to kill deceased; that several days before the killing the defendant had sharpened up a long-bladed knife. The killing occurred at the Mobile & Ohio depot at Corinth about nine o’clock at night on the arrival of the south-hound passenger train. Just before the arrival of this train the appellant stated to one or two negroes that he was going over to the train and kill him a man. The testimony further shows that the appellant knew that the deceased was coming down on that train and was going to marry the woman about whom they had had the first difficulty and with whom the appellant seems to have been living at the time of the killing; that, in pursuance of this design, appellant met the train, and, as soon as the passengers had alighted therefrom, looked up the deceased and provoked the difficulty; that the deceased when he got off of the train had in his hand a stick made of a spike maul handle. It further shows that the deceased had heard of these threats against his life, and before the train arrived at Corinth had asked a white friend of his to get off the train with him and protect him, as John Martin had threatened to kill him on his arrival at Corinth. The [372]*372state placed upon the stand two negro witnesses who testified that the appellant walked up to the deceased, and after some few words struck the deceased; thereupon the deceased struck appellant on the head with the stick. The fight then proceeded, with the deceased backing away from appellant and striking appellant over the head with the stick while appellant was advancing on deceased hitting him. It being dark, the witnesses could not see that the appellant had a knife in his right hand and was cutting deceased. Shortly after the difficulty began appellant grabbed deceased by bis belt with his left hand. The deceased continued to back, and the appellant to advance until the town marshal separated them. About that time the deceased dropped to the ground almost dead. An examination of his body showed that he had been cut or stabbed eight or ten times, principally on the right side from below the right arm to just above the hip. The town marshal testified that when he separated the combatants he remarked to the appellant, “I see you have killed a man,” to which appellant replied, “That was what I intended to do.”
The testimony of the appellant was that he went to the train to meet a friend; that he had no malice or ill will toward deceased. He denied having made any threats against the life of the deceased. He stated that when he saw Walter Taylor, the deceased, at the station, he spoke to him in a friendly way, and that Taylor told him to get on away from him or that he would kill him with that stick; that he turned to go away, when Taylor struck him over the head with the stick and knocked his hat off; that he then turned upon Taylor, and that Taylor continued to assault him with the stick, and that he then took his knife from his pocket and proceeded to cut and stab the deceased in self-defense; that all during' the difficulty he was trying to back away from the deceased; and that the deceased was advancing upon him with the stick, striking him on the head with the same. [373]*373The testimony of all of the witnesses who saw any part of the fight both for the state and for the defendant is to the effect that Taylor struck the defendant a number of times with the stick. The head of the defendant was examined after he was placed in jail, and he had several bruises and abrasions on it where he had been, struck by the deceased. Two neg’roes also testified for the defendant that Walter Taylor was the aggressor in the difficulty; that when the defendant spoke to Walter he then struck the defendant with his stick as testified to by the defendant. The defendant’s witnesses also testified that the defendant was backing away from the deceased all during the difficulty, and that the deceased was pursuing the defendant, striking him with the stick.
In short, if the jury believe the testimony of the state aud absolutely accepted its theory of the same and disbelieved entirely all of the testimony introduced for the defendant, then that testimony made out a case of murder. On the othér hand, if they accepted absolutely the theory of the defendant based upon the testimony introduced by the defendant, then they would have been justified in believing that the defendant acted in self-defense and of returning a verdict of not guilty.
No manslaughter instruction was asked by the state, hut oue was asked by the defendant reading as follows:
“The court charges the jury that the killing of a human being, without malice, in the heat of passion, without authority of law, and not in necessary self-defense, is manslaughter, and if you believe from the evidence beyond a reasonable doubt that the defendant so killed Walter Taylor, you will find him guilty of manslaughter. ’ ’
The court below refused to give this instruction, and we are asked to reverse the case for this reason.
The jury in this case were not compelled to believe all of the testimony introduced by the state and to disbelieve all of the tetimony introduced by the defendant. They were not bound to accept either the theory of the [374]*374state or that of the defense as based upon the testimony. The jury are the sole judges of the facts in the case as testified to, and in arriving at their verdict it is wholly within their province to believe or disbelieve all or any part of the testimony where there is any contradiction, in it. In this ease the jury, had the manslaughter-instruction been given, could have believed that the-deceased was the aggressor in the difficulty, and they could also have further believed under this testimony-that the appellant killed the deceased during the progress of this fight in the heat of passion, and not in nec-sary self-defense. A verdict of manslaughter would have-been sustained by the testimony. The jtiry in this case-could have found the defendant guilty of either murder or manslaughter, or could have acquitted him. Where the evidence is conflicting as to who is the-aggressor in a fight during which one of the participants is killed' by the other, a manslaughter instruction is proper. Under the testimony in this case it was error to refuse-the manslaughter instruction asked by the defendant.
“There was not a charge given on either side as to-manslaughter, and yet, on the proof, we think there might have been properly a verdict of manslaughter. We do not mean to say that a verdict of murder would-be improper, on the testimony, if there had been no error of law; but, since a verdict of manslaughter might also-be upheld, it was, in the distressingly conflicting state-of the evidence, to the last degree important that no-error of law should have been committed.” Johnson v. State, 75 Miss. 635, 23 So. 579; Green v. State, 37 So. 646.
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Sykes, J.,
delivered the opinion of the court.
The appellant, John Martin, in the circuit court of Alcorn county, was convicted of murder for the killing of Walter Taylor, and was sentenced by the court to imprisonment in the penitentiary for life, from which judgment this appeal is prosecuted. The testimony in the case for the state and the defendant was conflicting. The testimony of the state was to the effect that several months previous to the killing the appellant, John Martin, and the deceased had had a fight over a negro woman, in which fight the deceased cut the appellant several times with a penknife; that appellant had stated that he intended to kill deceased; that several days before the killing the defendant had sharpened up a long-bladed knife. The killing occurred at the Mobile & Ohio depot at Corinth about nine o’clock at night on the arrival of the south-hound passenger train. Just before the arrival of this train the appellant stated to one or two negroes that he was going over to the train and kill him a man. The testimony further shows that the appellant knew that the deceased was coming down on that train and was going to marry the woman about whom they had had the first difficulty and with whom the appellant seems to have been living at the time of the killing; that, in pursuance of this design, appellant met the train, and, as soon as the passengers had alighted therefrom, looked up the deceased and provoked the difficulty; that the deceased when he got off of the train had in his hand a stick made of a spike maul handle. It further shows that the deceased had heard of these threats against his life, and before the train arrived at Corinth had asked a white friend of his to get off the train with him and protect him, as John Martin had threatened to kill him on his arrival at Corinth. The [372]*372state placed upon the stand two negro witnesses who testified that the appellant walked up to the deceased, and after some few words struck the deceased; thereupon the deceased struck appellant on the head with the stick. The fight then proceeded, with the deceased backing away from appellant and striking appellant over the head with the stick while appellant was advancing on deceased hitting him. It being dark, the witnesses could not see that the appellant had a knife in his right hand and was cutting deceased. Shortly after the difficulty began appellant grabbed deceased by bis belt with his left hand. The deceased continued to back, and the appellant to advance until the town marshal separated them. About that time the deceased dropped to the ground almost dead. An examination of his body showed that he had been cut or stabbed eight or ten times, principally on the right side from below the right arm to just above the hip. The town marshal testified that when he separated the combatants he remarked to the appellant, “I see you have killed a man,” to which appellant replied, “That was what I intended to do.”
The testimony of the appellant was that he went to the train to meet a friend; that he had no malice or ill will toward deceased. He denied having made any threats against the life of the deceased. He stated that when he saw Walter Taylor, the deceased, at the station, he spoke to him in a friendly way, and that Taylor told him to get on away from him or that he would kill him with that stick; that he turned to go away, when Taylor struck him over the head with the stick and knocked his hat off; that he then turned upon Taylor, and that Taylor continued to assault him with the stick, and that he then took his knife from his pocket and proceeded to cut and stab the deceased in self-defense; that all during' the difficulty he was trying to back away from the deceased; and that the deceased was advancing upon him with the stick, striking him on the head with the same. [373]*373The testimony of all of the witnesses who saw any part of the fight both for the state and for the defendant is to the effect that Taylor struck the defendant a number of times with the stick. The head of the defendant was examined after he was placed in jail, and he had several bruises and abrasions on it where he had been, struck by the deceased. Two neg’roes also testified for the defendant that Walter Taylor was the aggressor in the difficulty; that when the defendant spoke to Walter he then struck the defendant with his stick as testified to by the defendant. The defendant’s witnesses also testified that the defendant was backing away from the deceased all during the difficulty, and that the deceased was pursuing the defendant, striking him with the stick.
In short, if the jury believe the testimony of the state aud absolutely accepted its theory of the same and disbelieved entirely all of the testimony introduced for the defendant, then that testimony made out a case of murder. On the othér hand, if they accepted absolutely the theory of the defendant based upon the testimony introduced by the defendant, then they would have been justified in believing that the defendant acted in self-defense and of returning a verdict of not guilty.
No manslaughter instruction was asked by the state, hut oue was asked by the defendant reading as follows:
“The court charges the jury that the killing of a human being, without malice, in the heat of passion, without authority of law, and not in necessary self-defense, is manslaughter, and if you believe from the evidence beyond a reasonable doubt that the defendant so killed Walter Taylor, you will find him guilty of manslaughter. ’ ’
The court below refused to give this instruction, and we are asked to reverse the case for this reason.
The jury in this case were not compelled to believe all of the testimony introduced by the state and to disbelieve all of the tetimony introduced by the defendant. They were not bound to accept either the theory of the [374]*374state or that of the defense as based upon the testimony. The jury are the sole judges of the facts in the case as testified to, and in arriving at their verdict it is wholly within their province to believe or disbelieve all or any part of the testimony where there is any contradiction, in it. In this ease the jury, had the manslaughter-instruction been given, could have believed that the-deceased was the aggressor in the difficulty, and they could also have further believed under this testimony-that the appellant killed the deceased during the progress of this fight in the heat of passion, and not in nec-sary self-defense. A verdict of manslaughter would have-been sustained by the testimony. The jtiry in this case-could have found the defendant guilty of either murder or manslaughter, or could have acquitted him. Where the evidence is conflicting as to who is the-aggressor in a fight during which one of the participants is killed' by the other, a manslaughter instruction is proper. Under the testimony in this case it was error to refuse-the manslaughter instruction asked by the defendant.
“There was not a charge given on either side as to-manslaughter, and yet, on the proof, we think there might have been properly a verdict of manslaughter. We do not mean to say that a verdict of murder would-be improper, on the testimony, if there had been no error of law; but, since a verdict of manslaughter might also-be upheld, it was, in the distressingly conflicting state-of the evidence, to the last degree important that no-error of law should have been committed.” Johnson v. State, 75 Miss. 635, 23 So. 579; Green v. State, 37 So. 646.
“Whenever the life of a human being is in the balance, it is but just to him that the law governing the case made against him be properly stated to the jury.” Strickland v. State, 81 Miss. 134, 32 So. 921.
“It is the province of the jury to pass upon the facts of a case and to believe parts of the evidence of either side and disregard any portion of the evidence [375]*375either for the state or for the defendant. It is certainly the province of the jury also to settle any issue of fact in the case, hut the defendant has the absolute right to have the facts of the ease presented to the jury on instructions which state the law fully and accurately. The jury must apply the facts to the particular case in the light of, and in accordance with, the law of the case. If there is no element of manslaughter under the facts of the case, then there should he no instruction granted either to the state or to the defendant in reference to manslaughter.” Rester v. State, 70 So. 881.
On the other hand, if there are any elements of manslaughter under any of the testimony in the case, then a manslaughter instruction is proper, and should be granted either to the state or to the defendant. Echols v. State, 70 So. 694.
Reversed and remanded»