Whitfield, O. I.,
delivered the opinion of the court.
It was error to exclude the testimony of the appellant that Sue Pruette was very nearsighted — could not see more than ten feet from her. This testimony was vital. According to the testimony of Sue Pruette, the killing of both Jones and Bidwell was simply assassination. She testifies evidently with great animosity toward the appellant. It was distinctly shown that the blind behind which appellant hid himself was fifty feet from the. houseboat on which Sue Pruette was at the time she swears she saw appellant shoot Bidwell. She says she recognized appellant by the flash of the gun, and that she has never seen as well as she saw that morning. If it were true, as stated as a fact by the-appellant — and of this the jury were the exclusive judges— that she could not see ten feet from her, it is obvious that she [768]*768could not have seen the appellant fifty feet away. It seems probable that the court excluded this statement, esteeming it to be the statement of an opinion; but this is not correct. It is made as the plain statement of a fact within the knowledge of the appellant,.the son-in-law of Sue Pruette, who had lived with her for several years and had had every opportunity to know the fact.
It was also vital error to exclude from the jury the testimony of the appellant as to why he was hid in the blind. Ilis statement is that he went there for the purpose of getting his little son from these people, who are shown beyond all controversy to be utterly unfit for his custody, as had been decided by the habeas corpus proceedings in which the custody of the son had been awarded to the father against the mother, because of her licentious life and conduct.' The testimony shows that after the court-had awarded the custody of the little boy — about five years of age at the time of the trial of this cause — to the father, for the reason stated, the father took the son with him to Louisiana, where ho went to work; that, finding it inconvenient to have his son traveling around with him, as he went from place to jfiace working, he left him with Mr. and Mrs. Chaney, in Natchez, with a strict charge never to let these people have him; that, nevertheless, on May 10, 1905, when Mr. Chaney was working in the field and Mrs. Chaney was sick, the woman, Sue Pruette, and her paramour, Bidwell, abducted the child from the house of Mr. Chaney and took it aboard the houseboat moored near the river bank; that appellant, desiring to observe the law, went down and demanded the possession of his child, but was driven off, with threats of injury should he ever return; that he then, still desiring to follow the law, went to the sheriff of the county and asked him to take action for him, and, under the advice of the sheriff, had Sue Pruette and Bidwell arrested on the charge of stealing his child; that, unfortunately, the justice of the peace discharged these parties; that then, driven to desperation [769]*769by the abduction of his child, who had been by the law awarded to his custody, and by the threat of injury if he attempted to again take possession 'of him, and by the unfortunate termination of the trial in the magistrate’s court, the appellant had constructed this blind — -the chief thing against him on this trial— and sat in it for the purpose, as he states, of finding out exactly the location of his child on the boat, so as to be able to get possession of it; and that the killing of Jones and Bidwell followed in the manner shown in the record. According to the testimony of the appellant he had every opportunity to have killed both men some time before he did — Bidwell especially, who had been down to a little garden out of sight of the houseboat, according to appellant’s testimony, just before the killing. Appellant says that, when Bidwell disappeared from view, he thought that was his opportunity to capture his little boy and make off with him; that he left his blind and made for the little child, but Bidwell came right up on him while he was trying to do so; that he told Bidwell that he wanted his child, and that Bidwell rushed to the boat, being thirty feet away from it, and only forty feet from his gun, which was in the boat on a rack in a room; that he knew Bidwell was making for his gun, and shot simply to cripple him and to keep him from getting his gun; that the shot did not prevent Bidwell from jumping on the boat and making his way into the room; that Jones, who had come up, went into this room and got Bidwell’s gun out and leveled it on appellant, and that appellant then shot, just in time to save his own life; that Jones fell, and the gun fell by him; that then Bidwell came out to where the gun lay and stooped down to pick it up, and he (the appellant) shot to prevent being himself killed. The woman Sue Pruette’s testimony absolutely and flatly contradicts all this testimony, and makes the case, as stated, one of cold-blooded assassination. But her testimony is contradicted in several most vital points by her own daughter, Mrs. Jones; by her own niece, Ida May Baussin; and by the sheriff. Sue Pruette actually testified that [770]*770appellant came on the boat, after killing both men, and went into the room, got Bidwell’s gun, and laid it down where it was after-wards found, beside the two men, obviously meaning to create the impression that appellant was doing this to shield himself, since, according to her testimony, the gun had never been taken from the rack during the difficulty. It was plainly shown, by Mrs. Jones and one or two other witnesses, that Bidwell’s gun was found by Jones’ body, pointed directly at the blind where the appellant was. Again, Sue Pruette testified, throughout her examination in chief, without once disclosing the fact that this little boy was aboard the boat, and the admission of that fact was extorted from her on cross-examination. She further expressly and repeatedly testified that the little boy was not taken from her on the boat. Her own daughter and her own niece expressly contradict her on this point, stating that the appellant got the-boy from her arms on the boat. These facts are alluded to for the purpose of showing that testimony evidently inflamed with hate, as this testimony was, and utterly and flatly contradicted in vital points by the witness’ own daughter and niece and by the-sheriff — which testimony, too, was evidently the basis for the verdict — needed to be broken down by appellant, if the facts could break it down, and that, consequently, his testimony that she could not see more than ten feet from her, and his motive as to why he was hid in the blind, ought both to have been permitted to go to the jury.
We also think the point is well taken that instructions Nos. 2 and 4 for the state, taken together, were erroneous. Those instructions are:
No. 2. “The court instructs the jury, for the state, that if you believe from the evidence in this case, beyond a reasonable doubt, that the defendant willfully, deliberately, and of his malice aforethought, shot and killed Bidwell at a time when he,, the defendant, was not in .real or apparent danger of losing his [771]*771own life or of suffering great bodily barm at tbe bands of Bid-well, be is guilty as charged, and tbe jury should so find.”
No. 4. “The court instructs the jury, for the state, that you have the power to find any one of the four following verdicts r (1) ‘We, the jury, find the defendant guilty as charged.’ Upon a return of this verdict the court will impose the death penalty.
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Whitfield, O. I.,
delivered the opinion of the court.
It was error to exclude the testimony of the appellant that Sue Pruette was very nearsighted — could not see more than ten feet from her. This testimony was vital. According to the testimony of Sue Pruette, the killing of both Jones and Bidwell was simply assassination. She testifies evidently with great animosity toward the appellant. It was distinctly shown that the blind behind which appellant hid himself was fifty feet from the. houseboat on which Sue Pruette was at the time she swears she saw appellant shoot Bidwell. She says she recognized appellant by the flash of the gun, and that she has never seen as well as she saw that morning. If it were true, as stated as a fact by the-appellant — and of this the jury were the exclusive judges— that she could not see ten feet from her, it is obvious that she [768]*768could not have seen the appellant fifty feet away. It seems probable that the court excluded this statement, esteeming it to be the statement of an opinion; but this is not correct. It is made as the plain statement of a fact within the knowledge of the appellant,.the son-in-law of Sue Pruette, who had lived with her for several years and had had every opportunity to know the fact.
It was also vital error to exclude from the jury the testimony of the appellant as to why he was hid in the blind. Ilis statement is that he went there for the purpose of getting his little son from these people, who are shown beyond all controversy to be utterly unfit for his custody, as had been decided by the habeas corpus proceedings in which the custody of the son had been awarded to the father against the mother, because of her licentious life and conduct.' The testimony shows that after the court-had awarded the custody of the little boy — about five years of age at the time of the trial of this cause — to the father, for the reason stated, the father took the son with him to Louisiana, where ho went to work; that, finding it inconvenient to have his son traveling around with him, as he went from place to jfiace working, he left him with Mr. and Mrs. Chaney, in Natchez, with a strict charge never to let these people have him; that, nevertheless, on May 10, 1905, when Mr. Chaney was working in the field and Mrs. Chaney was sick, the woman, Sue Pruette, and her paramour, Bidwell, abducted the child from the house of Mr. Chaney and took it aboard the houseboat moored near the river bank; that appellant, desiring to observe the law, went down and demanded the possession of his child, but was driven off, with threats of injury should he ever return; that he then, still desiring to follow the law, went to the sheriff of the county and asked him to take action for him, and, under the advice of the sheriff, had Sue Pruette and Bidwell arrested on the charge of stealing his child; that, unfortunately, the justice of the peace discharged these parties; that then, driven to desperation [769]*769by the abduction of his child, who had been by the law awarded to his custody, and by the threat of injury if he attempted to again take possession 'of him, and by the unfortunate termination of the trial in the magistrate’s court, the appellant had constructed this blind — -the chief thing against him on this trial— and sat in it for the purpose, as he states, of finding out exactly the location of his child on the boat, so as to be able to get possession of it; and that the killing of Jones and Bidwell followed in the manner shown in the record. According to the testimony of the appellant he had every opportunity to have killed both men some time before he did — Bidwell especially, who had been down to a little garden out of sight of the houseboat, according to appellant’s testimony, just before the killing. Appellant says that, when Bidwell disappeared from view, he thought that was his opportunity to capture his little boy and make off with him; that he left his blind and made for the little child, but Bidwell came right up on him while he was trying to do so; that he told Bidwell that he wanted his child, and that Bidwell rushed to the boat, being thirty feet away from it, and only forty feet from his gun, which was in the boat on a rack in a room; that he knew Bidwell was making for his gun, and shot simply to cripple him and to keep him from getting his gun; that the shot did not prevent Bidwell from jumping on the boat and making his way into the room; that Jones, who had come up, went into this room and got Bidwell’s gun out and leveled it on appellant, and that appellant then shot, just in time to save his own life; that Jones fell, and the gun fell by him; that then Bidwell came out to where the gun lay and stooped down to pick it up, and he (the appellant) shot to prevent being himself killed. The woman Sue Pruette’s testimony absolutely and flatly contradicts all this testimony, and makes the case, as stated, one of cold-blooded assassination. But her testimony is contradicted in several most vital points by her own daughter, Mrs. Jones; by her own niece, Ida May Baussin; and by the sheriff. Sue Pruette actually testified that [770]*770appellant came on the boat, after killing both men, and went into the room, got Bidwell’s gun, and laid it down where it was after-wards found, beside the two men, obviously meaning to create the impression that appellant was doing this to shield himself, since, according to her testimony, the gun had never been taken from the rack during the difficulty. It was plainly shown, by Mrs. Jones and one or two other witnesses, that Bidwell’s gun was found by Jones’ body, pointed directly at the blind where the appellant was. Again, Sue Pruette testified, throughout her examination in chief, without once disclosing the fact that this little boy was aboard the boat, and the admission of that fact was extorted from her on cross-examination. She further expressly and repeatedly testified that the little boy was not taken from her on the boat. Her own daughter and her own niece expressly contradict her on this point, stating that the appellant got the-boy from her arms on the boat. These facts are alluded to for the purpose of showing that testimony evidently inflamed with hate, as this testimony was, and utterly and flatly contradicted in vital points by the witness’ own daughter and niece and by the-sheriff — which testimony, too, was evidently the basis for the verdict — needed to be broken down by appellant, if the facts could break it down, and that, consequently, his testimony that she could not see more than ten feet from her, and his motive as to why he was hid in the blind, ought both to have been permitted to go to the jury.
We also think the point is well taken that instructions Nos. 2 and 4 for the state, taken together, were erroneous. Those instructions are:
No. 2. “The court instructs the jury, for the state, that if you believe from the evidence in this case, beyond a reasonable doubt, that the defendant willfully, deliberately, and of his malice aforethought, shot and killed Bidwell at a time when he,, the defendant, was not in .real or apparent danger of losing his [771]*771own life or of suffering great bodily barm at tbe bands of Bid-well, be is guilty as charged, and tbe jury should so find.”
No. 4. “The court instructs the jury, for the state, that you have the power to find any one of the four following verdicts r (1) ‘We, the jury, find the defendant guilty as charged.’ Upon a return of this verdict the court will impose the death penalty. (2) ‘We, the jury, find the defendant guilty as charged, and fix his punishment at imprisonment in the penitentiary for life.’ If you find this verdict, the court will so sentence the defendant. (3) ‘We, the jury, find the defendant guilty of manslaughter.’ (4) ‘We, the jury, find the defendant not guilty.’ ”
The particular point made is that, taken together, the jury are charged that they should find a verdict in the form, if they believed appellant guilty of murder, “We, the jury, find the defendant guilty as charged,” and that the judge would impose the death penalty; in other words, the right of the jury, if they found him guilty, to sentence him to imprisonment in the penitentiary for life was taken away from them by these instructions, which tell them, in effect, that if they believe him guilty of murder, the form of the verdict should be, “We, the jury, find him guilty as charged.” The effect of the instructions is this: In the fourth instruction the jury are told that they have the power to sentence the prisoner to the penitentiary for life; but in the second instruction they are told, nevertheless, that they ought not to imprison him in the penitentiary for life, but should find him guilty as charged, leaving the court to sentence him to-death. We might not reverse for this error alone; but we point out the fact that it is error, that it may be avoided in future trials. If the jury beliéve one guilty of murder beyond a reasonable doubt, he should be so found; but the jury should be left to determine for themselves, without any hint or intimation from the court, what the punishment should be. See, as shedding light upon this principle, Spain v. State, 59 Miss., 19.
[772]*772We are also of the opinion that it was error to refuse the instruction asked for appellant, which is as follows:
“The court instructs, for the defendant, that, even though the jury may believe from the evidence that the defendant was not acting in his necessary self-defense at the time he fired the first shot at Bidwell, yet, if the evidence has left a reasonable doubt in their minds as to whether Bidwell was killed by this shot or by a later one, then they will acquit, unless they further believe from the evidence, beyond a reasonable doubt, that the shot which killed Bidwell was fired by the defendant at a time when he (the defendant) was not in real or apparent danger of death or great bodily harm at the hands of Bidwell.”
The learned assistant attorney-general insists that the eighth instruction for the appellant sufficiently set forth the idea embraced in the refused instruction, but in this case he is mistaken. The refused instruction was correct and stressed a specific proposition, vital to appellant’s cause. The idea of the court in refusing this instruction seems to have been that appellant was estopped to set up the plea of self-defense, because of the’doctrine that,, when one arms himself with a deadly weapon for the purpose of slaying his adversary, etc., he cannot plead self-defense; but on the testimony of the appellant — -which the jury alone had the right to pass upon — he had armed himself, not to provoke a difficulty, but simply to defend himself if attacked. It was shown that there was an interval between the first shot, which certainly did not kill Bidwell, and the second shot, which, according to appellant’s testimony, was fired when Bidwell was in the very act of reaching for the gun, which had just dropped from the hands of Jones. According to appellant’s testimony, he made no effort to shoot Bidwell the second time until Bidwell was reaching for the gun to shoot him.
We cannot close this opinion without directing the reporter to publish in full the brief filed for the appellant in this cause, [773]*773as it is a model of sound logic, accurate legal learning, and genuine eloquence.
Reversed and remanded.