Cook, J.,
delivered the opinion of the court.
The appellant was indicted, tried, and convicted for the murder of Charlie McLeod, his first cousin, and sentenced to imprisonment for life in.the state penitentiary.
The evidence shows that on the morning of the killing the appellant and the deceased were at Sunday school in a church in the neighborhood; that the appellant was drunk at Sunday school, and dropped his pistol from his pocket. At. the conclusion of the services the appellant inAdted the deceased to go home with him for dinner, Ap[95]*95pellant’s sister was at church, and the deceased told her to go ahead, that he would look after Hard. They left the church arm in arm and went to tlie residence of the appellant, who lived with his father, and the shooting took place at the appellant’s home. The first witness for the state who arrived at the home of the appellant after the shooting testified that the appellant was not there, and that the deceased was tying on the kitchen gallery begging some one to go for the doctor.' The doctor- was sent for, and came and took the deceased in his car to a hospital in Mobile, Ala., for an operation, and the deceased died in Mobile the following day, about the same time of day that he was shot, living about twenty-four hours after being-shot. The deceased prior to his death made certain dying-declarations to his brother on the way to Mobile, and to one of his brothers and his brother-in-law at the hospital. The first dying declaration testified to is as follows:
“Q. What statement, if any, did he make to you about whether Or not he was going to die or get well? ' A. He told me there was no use to go to any great expense, for he could not get over it.
“Q. Where did he tell you that, A. On the way to Mobile.
“Q. After he made that statement to you, did he make any statement to you about the killing? A. Yes, sir; he said he did not see why in the world Hard went and shot him for, bécause there had not been a cross word between them all day.”
The second statement was made in the hospital to the brother and brother-in-law. The brother testified as follows:
“Q. While you were there with him the next day, did he have anything to say about whether or not he would live or get well? A. He told me, he said, ‘There is no chance for me.’
“Q. He told you that? A. Yes, sir; he said, ‘Bobert, there is no chance for me.’ He said, ‘I don’t see how in the world come Hard to do that.’
[96]*96“Q. Do what? A. He said, ‘I don’t see how in the world come Hard to do that; 1 would not have done a dog that way.’
“Q. What was he talking about? A. About being shot.”
His brother-in-law, Lee Brown, testified as follows:
“Q. Did he make a statement to you at that time about whether or not he would live or get well? A. Yes, sir; he made a statement. He said that he could not get well; there was no chance in the world for him. He said that he would not live; that there was no chance in the world for him.
“Q. Did you ever hear him express any hope of getting well? A. No, sir; not a bit.
“Q. And you were with him from the time you carried him to Mobile until he died? A. Yes, sir.
“Q. I will ask you to state what statement, if any, he made in your presence after he made the statement that he had no hopes of getting well, about the shooting, who shot him, and why? A. lie said that Hard McLeod shot him. I said, Charley, Avhat did he shoot you for, and he said that he did not know; that there was no cross word between us there, and there had not been that day. I said, ‘Was you mad with him, or was he mad with you,’ and he said, ‘Not a particle in the world. I was not mad with him, and if he was mad with me I didn’t know it.’ ”
The sheriff of the county testified for the state that he went out to the home of appellant where the shooting took place, and that when he arrived appellant was not in the house, but that he found him in the woods drunk and carried him to jail that afternoon, and that in a conversation in which the sheriff asked him why he shot the deceased he stated that he did not shoot him; that the deceased shot himself; that on the following morning, in a conversation with appellant in reference to why he did the shooting, the appellant stated that he shot him because he was cursing and abusing his mother, and that he had forbidden him to come in the house, and that he shot him to protect his mother.
[97]*97The defendant produced two witnesses who testified in reference to the shooting, one his brother, and the other a witness by the name of Lambert. These witnesses stated that they passed the appellant and the deceased on the day on which the shooting occurred a short distance before reaching the home of the deceased, and that they were sitting on the roadside quarreling and trying to fight; that deceased had his knife open, and appellant and deceased got up to fight, and the deceased stuck his knife in his pocket open, when they went on and left them, going on to the home of the appellant, who lived with his father; that in a short time appellant and deceased came on to the house quarreling and cursing; that the deceased was cursing appellant’s mother, and threatening her; that when she saw them coming they asked appellant’s mother to leave, and she went to an uncle of appellant who lived near by; that when they got to the house appellant forbade the deceased to come in, but that he came in, still cursing and abusing the appellant and his mother, and after they got into the house that deceased tried to fight the appellant, and turned to pick up a chair, when the appellant shot him. These witnesses were corroborated by a sister of appellant, who heard the cursing, or claimed to have done so, but did not see the shooting. These witnesses were contradicted by statements made to other parties, in which contradictory statements were made similar to statements made by the sheriff above set out.
There was much proof for the defendant that'the deceased was a man whose reputation for peace and violence was bad in the community, and also that he had threatened the appellant on previous occasions, and that on one occasion, about a year before the deceased and his brother had assaulted appellant and threatened his life. The state introduced much proof to counteract the evidence of a bad reputation for peace, a large number of people testifying that the deceased’s reputation in that respect was good.
At the term of court at which the appellant was indicted the witness Lambert and a brother of appellant were not [98]*98present, and. an application for a continuance was made in which, it was stated on oath by the appellant that he expected to prove by them that the deceased was assaulting his mother and cursing her at the time of the shooting and that the shooting was in defense of his mother. When these witnesses were on the stand the state examined them with reference to the truthfulness of the statements therein set out, and they stated that the statements therein made were not true as therein made. At the conclusion of the evidence the court limited the argument to one hour to each side, over the objection of the appellant, but the attorneys for the appellant did not consume the one hour allotted. In the argument of the district attorney he stated:
“I had rather-go to the pen and stay there and rot, than to walk out of this courthouse a free man on the good name of my mother.”
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Cook, J.,
delivered the opinion of the court.
The appellant was indicted, tried, and convicted for the murder of Charlie McLeod, his first cousin, and sentenced to imprisonment for life in.the state penitentiary.
The evidence shows that on the morning of the killing the appellant and the deceased were at Sunday school in a church in the neighborhood; that the appellant was drunk at Sunday school, and dropped his pistol from his pocket. At. the conclusion of the services the appellant inAdted the deceased to go home with him for dinner, Ap[95]*95pellant’s sister was at church, and the deceased told her to go ahead, that he would look after Hard. They left the church arm in arm and went to tlie residence of the appellant, who lived with his father, and the shooting took place at the appellant’s home. The first witness for the state who arrived at the home of the appellant after the shooting testified that the appellant was not there, and that the deceased was tying on the kitchen gallery begging some one to go for the doctor.' The doctor- was sent for, and came and took the deceased in his car to a hospital in Mobile, Ala., for an operation, and the deceased died in Mobile the following day, about the same time of day that he was shot, living about twenty-four hours after being-shot. The deceased prior to his death made certain dying-declarations to his brother on the way to Mobile, and to one of his brothers and his brother-in-law at the hospital. The first dying declaration testified to is as follows:
“Q. What statement, if any, did he make to you about whether Or not he was going to die or get well? ' A. He told me there was no use to go to any great expense, for he could not get over it.
“Q. Where did he tell you that, A. On the way to Mobile.
“Q. After he made that statement to you, did he make any statement to you about the killing? A. Yes, sir; he said he did not see why in the world Hard went and shot him for, bécause there had not been a cross word between them all day.”
The second statement was made in the hospital to the brother and brother-in-law. The brother testified as follows:
“Q. While you were there with him the next day, did he have anything to say about whether or not he would live or get well? A. He told me, he said, ‘There is no chance for me.’
“Q. He told you that? A. Yes, sir; he said, ‘Bobert, there is no chance for me.’ He said, ‘I don’t see how in the world come Hard to do that.’
[96]*96“Q. Do what? A. He said, ‘I don’t see how in the world come Hard to do that; 1 would not have done a dog that way.’
“Q. What was he talking about? A. About being shot.”
His brother-in-law, Lee Brown, testified as follows:
“Q. Did he make a statement to you at that time about whether or not he would live or get well? A. Yes, sir; he made a statement. He said that he could not get well; there was no chance in the world for him. He said that he would not live; that there was no chance in the world for him.
“Q. Did you ever hear him express any hope of getting well? A. No, sir; not a bit.
“Q. And you were with him from the time you carried him to Mobile until he died? A. Yes, sir.
“Q. I will ask you to state what statement, if any, he made in your presence after he made the statement that he had no hopes of getting well, about the shooting, who shot him, and why? A. lie said that Hard McLeod shot him. I said, Charley, Avhat did he shoot you for, and he said that he did not know; that there was no cross word between us there, and there had not been that day. I said, ‘Was you mad with him, or was he mad with you,’ and he said, ‘Not a particle in the world. I was not mad with him, and if he was mad with me I didn’t know it.’ ”
The sheriff of the county testified for the state that he went out to the home of appellant where the shooting took place, and that when he arrived appellant was not in the house, but that he found him in the woods drunk and carried him to jail that afternoon, and that in a conversation in which the sheriff asked him why he shot the deceased he stated that he did not shoot him; that the deceased shot himself; that on the following morning, in a conversation with appellant in reference to why he did the shooting, the appellant stated that he shot him because he was cursing and abusing his mother, and that he had forbidden him to come in the house, and that he shot him to protect his mother.
[97]*97The defendant produced two witnesses who testified in reference to the shooting, one his brother, and the other a witness by the name of Lambert. These witnesses stated that they passed the appellant and the deceased on the day on which the shooting occurred a short distance before reaching the home of the deceased, and that they were sitting on the roadside quarreling and trying to fight; that deceased had his knife open, and appellant and deceased got up to fight, and the deceased stuck his knife in his pocket open, when they went on and left them, going on to the home of the appellant, who lived with his father; that in a short time appellant and deceased came on to the house quarreling and cursing; that the deceased was cursing appellant’s mother, and threatening her; that when she saw them coming they asked appellant’s mother to leave, and she went to an uncle of appellant who lived near by; that when they got to the house appellant forbade the deceased to come in, but that he came in, still cursing and abusing the appellant and his mother, and after they got into the house that deceased tried to fight the appellant, and turned to pick up a chair, when the appellant shot him. These witnesses were corroborated by a sister of appellant, who heard the cursing, or claimed to have done so, but did not see the shooting. These witnesses were contradicted by statements made to other parties, in which contradictory statements were made similar to statements made by the sheriff above set out.
There was much proof for the defendant that'the deceased was a man whose reputation for peace and violence was bad in the community, and also that he had threatened the appellant on previous occasions, and that on one occasion, about a year before the deceased and his brother had assaulted appellant and threatened his life. The state introduced much proof to counteract the evidence of a bad reputation for peace, a large number of people testifying that the deceased’s reputation in that respect was good.
At the term of court at which the appellant was indicted the witness Lambert and a brother of appellant were not [98]*98present, and. an application for a continuance was made in which, it was stated on oath by the appellant that he expected to prove by them that the deceased was assaulting his mother and cursing her at the time of the shooting and that the shooting was in defense of his mother. When these witnesses were on the stand the state examined them with reference to the truthfulness of the statements therein set out, and they stated that the statements therein made were not true as therein made. At the conclusion of the evidence the court limited the argument to one hour to each side, over the objection of the appellant, but the attorneys for the appellant did not consume the one hour allotted. In the argument of the district attorney he stated:
“I had rather-go to the pen and stay there and rot, than to walk out of this courthouse a free man on the good name of my mother.”
The appellant assigns for eiror the admission of the dying declaration above set out; the reading of the affidavit for a continuance to the witnesses, and interrogating them with reference to the truthfulness of. the statements in the' affidavit; that the court erred in not giving a manslaughter instruction on its own motion, neither the state nor the defendant having asked for such an instruction; that the court erred in limiting the argument to one hour to each side; that it was error for the district attorney to make the statement above set out in his argument; and the refusal of the court to grant the defendant a peremptory instruction when the state concluded its evidence, also when the whole evidence was in.
We think the dying declaration above set out was competent, and that it came within the rules announced by this court in the various decisions dealing with that subject. We deem it unnecessary to discuss the numerous authorities cited on this proposition in the appellant’s brief. We think the rules governing that subject are clearly and correctly stated in Bell v. State, 72 Miss. 507, 17 So. 232, and that the proof in this case was such as authorized the trial judge to believe beyond a reasonable doubt that the dec[99]*99laration was made in conformity to the law therein announced.
We do not think it was error to cross-examine the witnesses Lambert and McLeod with reference to statements which the appellant expected to prove by them shown in his affidavit for a continuance at a former term.
It is claimed that the court erred in not giving a manslaughter instruction, although neither the state nor the defendant requested such an instruction. Under section 798, Code 1906 (section 577, Hemingway’s Code), the circuit judge is prohibited from giving any instruction of his own motion, but can only give such instructions at the request of the parties. This is not a case where the instruction given for the state precludes a finding of manslaughter. The instruction in the present case on the form of the verdict tells the jury that, if you find the defendant guilty of murder, you may return one of the following verdicts, setting out therein the different forms of verdict for murder, and also tells the jury that, if they find the defendant not guilty, they will render a verdict, “We, the jury, find the defendant not guilty as charged,” and in that event the court will discharge the defendant. There is nothing-in this instruction that precludes the jury from finding a verdict of manslaughter. This court has on numerous occasions announced that the judge was without power to grant an instruction when it was not asked for by one of the parties. In Davenport v. State, 121 Miss. 549, 83 So. 738, this court held that, under section 793, Code 1906 (section 577, Hemingway’s Code), the trial judge is forbidden to give an instruction not requested by either party, and reversed a conviction because the court did so. In Johnson v. State, 106 Miss. 94, 63 So. 338, it was held that, on the trial of an accused for murder, he cannot co-mplain that the court did not instruct on manslaughter where the appellant presented no instruction thereon, as the court cannot grant instructions unless they are in writing and requested to be given. In Dixon v. State, 106 Miss. 697, 64 So. 468, it was held by this court that under this section [100]*100the court cannot grant instructions not asked for, and the failure of the court to give an instruction defining murder when neither party requested it is not error. To the same effect are Pringle v. State, 108 Miss. 802, 67 So. 455; Watkins v. State, 60 Miss. 323; Boykin v. State, 86 Miss. 481, 38 So. 725.
In the present case there is ample evidence to warrant the jury in believing that the appellant was guilty of murder, and the principle of Staiger v. State, 110 Miss. 557, 70 So. 690, and Pigott v. State, 107 Miss. 552, 65 So. 583, and other cases announcing the same doctrine, is not applicable. Of course, if there was no evidence to warrant a conviction of murder, it would be error to grant an instruction on murder where a conviction of murder followed.
There was no error in the court limiting the argument to one hour to each side because the record shows that the hour allowed was not consumed in the argument by the defendant. Before appellant can complain of the limiting of the argument it must appear from the record that he was prejudiced by the court’s ruling.
The bill of exceptions with reference to the argument of the district attorney, as above stated, is insufficient to show any abuse of the privilege of advocacy. The evidence showed that the appellant was claiming to have acted in defense of his mother, and that the deceased called her very vile names, and there is much evidence tending to show that such a theory was false in fact. The connection in which the statement made in the argument of the district attorney does not sufficiently appear, and therefore this assignment is without merit.
The judgment of the court will therefore be affirmed.
Affirmed.