Anderson, J.,
delivered the opinion of the court.
Appellant, A. A. Nelson, was indicted and convicted in the circuit court of Lauderdale county of murdering his father-in-law, Ed Henson, the jury fixing his punishment at imprisonment in the penitentiary for life, which was accordingly imposed by the court, from which judgment he prosecutes this appeal.
About 7 o’clock on the evening of March 4, 1921, the deceased, Henson, while sitting in his room near one of ihe windows therein, was shot to death by means of a shot-[301]*301in the hands of some person standing on the outside near the window. lie died instantly, and therefore made no dying statement. There were no eyewitnesses to the homicide. To convict, the state relied alone on circumstantial evidence to identify the appellant as the person who did the shooting.
Appellant’s defense on the trial in the court below was, first, that the evidence did not sufficiently identify him as the person who did the killing, and second, that, if it did so identify him, he was insane at the 111116 to the extent that he was incapable of committing the crime with which he was charged. The appellant made no confession or admission tending to show his guilt. At the time of the homicide, the appellant was more than 60 years of age. About two weeks prior thereto he had married the 17 year old daughter of the deceased, the deceased procuring the license therefor. Appellant and his wife lived together only about one week, when she left him.
The evidence relied on by the state, as identifying appellant as the person who committed the homicide, is substantially as follows: Shortly before the killing, probably the day before, appellant threatened to kill the deceased because he said the deceased had persuaded his wife to leave him. On the afternoon of the night of the killing, appellant was seen at the gate of his own home with a gun in his possession. Boon after the homicide, appellant was arrested by the officers on the theory that he was the guilty person. When arrested he acted “suspiciously.” There were tracks of some person near the window of the home of the deceased where the person who did the shooting is supposed to have stood. Appellant’s shoes were taken and fitted into these tracks, and corresponded with the same. And, on the day following the homicide, the appellant’s shotgun was found between the mattress and the featherbed on the bed occupied bv him, and appeared to have been recently fired.
On the issue of insanity, the evidence was substantially as follows: In 1907 the appellant was declared insane [302]*302in the maimer prescribed by law, and committed to the East Mississippi Insane Asylum, and there remained for some time, and then made his escape. He had never been disc]larged, from the asylum, nor had he ever been recaptured and returned. Dr. Robinson, who had been the appellant’s family physician for more than 10 years, and who had .made a special study of mental and nervous diseases, testified that appellant’s mental state was the result of pellagra, which left his mind seriously impaired; that, in his judgment; the appellant was not capable of comprehending the difference between right and wrong. Many of appellant’s neighbors, who were intimately acquainted with him and had had ample opportunity of observing his mental processes and conduct, testified that, in their opinion, he was not at the time of the homicide, nor had he been for some years, mentally capable of understanding the difference between right and wrong. The only evidence to the contrary was that of Dr. Buchanan, Dr. Cleveland, the jailer, .a sister of the deceased, and one Smith. Drs. Buchanan and Cleveland qualified as mental experts. They testified that the appellant was mentally weak, but, in their opinion, had sufficient mind to understand the difference between right and wrong. The other witnesses .for the state testified’ that, in their judgment, appellant knew right from wrong, but admitted that he was weak-minded.
It will be observed that, especially on the issue of the sanity of the appellant, the state did not make out a strong case. And furthermore, on the question of whether appellant was sufficiently identified by the evidence as the person who committed the homicide, reasonable minds might differ, under the requirement of the law that such identification had to be shown beyond a reasonable doubt. • In that sort of a case the court below should have most diligently guarded against the commission of errors unfavor-, able to appellant, and especially harmful errors.
Appellant assigns as error certain language of the trial judge on the voir dire examination of the jurors in the [303]*303presence of oilier jurors. The language of the court objected to is set forth in a special bill of exceptions which is in this language:
“ Now, suppose that the evidence should show that the defendant was feeble-minded and not as bright as Woodrow Wilson or some other persons, and further that the defendant knew the difference between moral right and wrong; would you convict him, if the state had proven that he committed the crime, regardless of his plea of insanity?’ To this question the defendant then and there duly excepted, whereupon the court remarked: ‘We all have our light to our opinion about the matter.’ The court also used repeatedly the folloAving language to the proposed jurors in speaking of the defense of insanity: Now, suppose the defendant sets up insanity as a defense, and he has got a right to, if he wants to. He can interpose any defense he wants to. Will you consider this defense as you would any- other?’ ”
It is contended that, in view of appellant’s’ defense of insanity, this language of the court was very prejudicial to such defense. Montgomery v. State, 85 Miss. 330, 37 So. 835; Green v. State, 97 Miss. 834, 53 So. 415; Collins v. State, 99 Miss. 47, 54 So. 665, Ann. Cas. 1913C, 1256; and Leverett v. State, 112 Miss. 394, 73 So. 273, are relied on to sustain that contention. In Montgomery v. State, supra, in discussing as to Iioav the conduct of the trial judge should be characterized during the trial, the court, among other things, said: “A court should so deport itself as that no juror or bystander can surmise its vieAV of the facts, It is an unbiased jury alone Avhich should pass on the facts.”
In Green v. State, supra, the court said: “It is a matter of common knoAvledge that jurors, as well as officers in attendance upon court, are very susceptible to the influence of the judge. The sheriff -and his deputies, as a rule, are anxious to do his bidding; and jurors Avatch closely his conduct, and give attention to his language, that they may, if possible, ascertain his leaning to one side or the other, which, if knoAvn, often largely influences their verdict. He [304]*304cannot be too careful and guarded in language and conduct in the presence of the jury, to avoid prejudice to either party.”
And, in Leverett v. State, supra,
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Anderson, J.,
delivered the opinion of the court.
Appellant, A. A. Nelson, was indicted and convicted in the circuit court of Lauderdale county of murdering his father-in-law, Ed Henson, the jury fixing his punishment at imprisonment in the penitentiary for life, which was accordingly imposed by the court, from which judgment he prosecutes this appeal.
About 7 o’clock on the evening of March 4, 1921, the deceased, Henson, while sitting in his room near one of ihe windows therein, was shot to death by means of a shot-[301]*301in the hands of some person standing on the outside near the window. lie died instantly, and therefore made no dying statement. There were no eyewitnesses to the homicide. To convict, the state relied alone on circumstantial evidence to identify the appellant as the person who did the shooting.
Appellant’s defense on the trial in the court below was, first, that the evidence did not sufficiently identify him as the person who did the killing, and second, that, if it did so identify him, he was insane at the 111116 to the extent that he was incapable of committing the crime with which he was charged. The appellant made no confession or admission tending to show his guilt. At the time of the homicide, the appellant was more than 60 years of age. About two weeks prior thereto he had married the 17 year old daughter of the deceased, the deceased procuring the license therefor. Appellant and his wife lived together only about one week, when she left him.
The evidence relied on by the state, as identifying appellant as the person who committed the homicide, is substantially as follows: Shortly before the killing, probably the day before, appellant threatened to kill the deceased because he said the deceased had persuaded his wife to leave him. On the afternoon of the night of the killing, appellant was seen at the gate of his own home with a gun in his possession. Boon after the homicide, appellant was arrested by the officers on the theory that he was the guilty person. When arrested he acted “suspiciously.” There were tracks of some person near the window of the home of the deceased where the person who did the shooting is supposed to have stood. Appellant’s shoes were taken and fitted into these tracks, and corresponded with the same. And, on the day following the homicide, the appellant’s shotgun was found between the mattress and the featherbed on the bed occupied bv him, and appeared to have been recently fired.
On the issue of insanity, the evidence was substantially as follows: In 1907 the appellant was declared insane [302]*302in the maimer prescribed by law, and committed to the East Mississippi Insane Asylum, and there remained for some time, and then made his escape. He had never been disc]larged, from the asylum, nor had he ever been recaptured and returned. Dr. Robinson, who had been the appellant’s family physician for more than 10 years, and who had .made a special study of mental and nervous diseases, testified that appellant’s mental state was the result of pellagra, which left his mind seriously impaired; that, in his judgment; the appellant was not capable of comprehending the difference between right and wrong. Many of appellant’s neighbors, who were intimately acquainted with him and had had ample opportunity of observing his mental processes and conduct, testified that, in their opinion, he was not at the time of the homicide, nor had he been for some years, mentally capable of understanding the difference between right and wrong. The only evidence to the contrary was that of Dr. Buchanan, Dr. Cleveland, the jailer, .a sister of the deceased, and one Smith. Drs. Buchanan and Cleveland qualified as mental experts. They testified that the appellant was mentally weak, but, in their opinion, had sufficient mind to understand the difference between right and wrong. The other witnesses .for the state testified’ that, in their judgment, appellant knew right from wrong, but admitted that he was weak-minded.
It will be observed that, especially on the issue of the sanity of the appellant, the state did not make out a strong case. And furthermore, on the question of whether appellant was sufficiently identified by the evidence as the person who committed the homicide, reasonable minds might differ, under the requirement of the law that such identification had to be shown beyond a reasonable doubt. • In that sort of a case the court below should have most diligently guarded against the commission of errors unfavor-, able to appellant, and especially harmful errors.
Appellant assigns as error certain language of the trial judge on the voir dire examination of the jurors in the [303]*303presence of oilier jurors. The language of the court objected to is set forth in a special bill of exceptions which is in this language:
“ Now, suppose that the evidence should show that the defendant was feeble-minded and not as bright as Woodrow Wilson or some other persons, and further that the defendant knew the difference between moral right and wrong; would you convict him, if the state had proven that he committed the crime, regardless of his plea of insanity?’ To this question the defendant then and there duly excepted, whereupon the court remarked: ‘We all have our light to our opinion about the matter.’ The court also used repeatedly the folloAving language to the proposed jurors in speaking of the defense of insanity: Now, suppose the defendant sets up insanity as a defense, and he has got a right to, if he wants to. He can interpose any defense he wants to. Will you consider this defense as you would any- other?’ ”
It is contended that, in view of appellant’s’ defense of insanity, this language of the court was very prejudicial to such defense. Montgomery v. State, 85 Miss. 330, 37 So. 835; Green v. State, 97 Miss. 834, 53 So. 415; Collins v. State, 99 Miss. 47, 54 So. 665, Ann. Cas. 1913C, 1256; and Leverett v. State, 112 Miss. 394, 73 So. 273, are relied on to sustain that contention. In Montgomery v. State, supra, in discussing as to Iioav the conduct of the trial judge should be characterized during the trial, the court, among other things, said: “A court should so deport itself as that no juror or bystander can surmise its vieAV of the facts, It is an unbiased jury alone Avhich should pass on the facts.”
In Green v. State, supra, the court said: “It is a matter of common knoAvledge that jurors, as well as officers in attendance upon court, are very susceptible to the influence of the judge. The sheriff -and his deputies, as a rule, are anxious to do his bidding; and jurors Avatch closely his conduct, and give attention to his language, that they may, if possible, ascertain his leaning to one side or the other, which, if knoAvn, often largely influences their verdict. He [304]*304cannot be too careful and guarded in language and conduct in the presence of the jury, to avoid prejudice to either party.”
And, in Leverett v. State, supra, the court, is discussing the same question of the conduct of the trial judge, said: “The court undoubtedly anticipated that evidence would be introduced showing the illicit relations between the decedent and appellant’s wife, and was attempting to forestall any attempt on the part of appellant to plead the so-called 'unwritten law.’ The evidence, however, offered by the appellant, with reference to the illicit relations between his wife and the decedent, and the controversy and threats growing out of the same, was a material part of his case, and served a legitimate purpose as corroborative of the appellant’s version of the affair in so far only, of course, as it shed light on who was the aggressor. Evidently the judge, in questioning the jurors about whether or not they would be controlled by ‘sentiment,’ anticipated this very testimony, and, by his questions, greatly disparaged this evidence. The effect of such questions on the minds of the jurors was as effective as if the judge had said, in so many'words: ‘The self-defense story in this case is “trumped-up.” The defendant is trying by this means to plead the unwritten law.’ The whole trend of the voir dire examination was to influence the proposed jurors against the defendant, and to strongly impress them with the idea that their duty was to convict. Each juror was given to understand that he would be a inan of very little moral courage unless he found a verdict of guilty in this case. Such examination was erroneous, and very prejudicial to the defendant.”
The language in question of the trial judge on the voir dire examination of the jurors, we think was most prejudicial to appellant’s defense of insanity. Especially is this true of that part of the examination in which the judge uses this language, “not as bright as Woodrow Wilson, or some other persons,” and the language, “regardless of his plea of insanity.” And the response of the court, [305]*305when appellant’s counsel objected to the language of the court, in which he said: “We all have our right to our opinion about the matter.” And the language, “Now, suppose the defendant sets up insanity as a defense, and he has got a right to, if lie wants to. He can interpose any defense he wants to.” We think this language, although of course not so intended by the court, must have been most damaging to appellant’s defense of insanity. It tended to belittle the defense and bring it into contempt. The trial judge, in his ardour to enforce the criminal laws, overstepped the proper bounds. It is no more however than good judges have done before.
Appellant assigns as error the action of the court in admitting certain evidence of the witness T. D. Hawkins, over the objection of appellant. The witness Hawkins was put on the stand by appellant and was a very material witness in his favor on the question of appellant’s sanity. On cross-examination, the district attorney, over the objection of appellant, wag permitted to examine the witness as follows“Q. Did you ever drink any wine he made? A. I don’t recollect whether I did or not. Q. Did you ever* drink any of the shinney he made? A. No, sir. Q. You did not? A. No, sir.”
The evident purpose of the district attorney was to convey the idea to the jury that appellant had been engaged in the unlawful manufacture and sale of intoxicating liquors,; If that were true it had absolutely no bearing on the guilt or innocence of appellant of the exime with which he Aviáis charged. This evidence was calculated to prejudice appellant’s defense, although the witness denied that he liad boxight any wine or whisky fi*om the appellant, for the jury might have inferred nevertheless that he had, and /the district attorney knew it, but was unable to prove it. i An illicit liquor dealer would not have much show with a plea of insanity before the ordinary jury.
Appellant assigns as error the action of the court in permitting the district attorney to prove by the witness Mosby, over the objection of appellant, that, on either the after[306]*306noon deceased was killed or the day before, the deceased came to the office of Clay, a justice of the peace, and asked for protection against violence at the hands of appellant. This evidence was objected to on the ground that it was hearsay. What the deceased may have said or done at a time previous to the homicide and unconnected therewith is too remote. Such statements cannot be proved by hearsay, unless they were a part of the res gestae. Therefore all declarations by a decedent before his homicide that he had been threatened, or expected violence at the hands of the defendant charged with his murder, are inadmissible. 13 R. C. L. section 224, p. 921; 21 Cyc. 931; Wharton on Criminal Evidence (10th Ed.) par. 225. They are simply hearsay evidence and come within the rule against such evidence.
The action of the court in giving instruction No. 2 for the state is assigned as error. That instruction is in this language: “The court instructs the jury for the state that you cannot acquit the defendant on his plea of insanity, if you believe from the evidence beyond a reasonable doubt that he killed the deceased without authority of law and with the deliberate intention of taking his life and at the time he knew that it was morally wrong so to do, and this is true, even though you may f urther believe that the defendant was insane and could not control himself'and teas feeble-minded and was not like an ordinary man.“
This instruction, down to the word “true,” correctly states the law. The criticism of the instruction is addressed to the last clause, beginning after the word “true” in this language, “even though you may further believe that the defendant was insane and could not control himself and was feebleminded and was not like an ordinary man.” The argument is that these two divisions of the, instruction are directly conflicting with each other; that the first division, although it correctly states the law, is nullified by the last division of the instruction. The language of the secoyd division is so involved and complicated that it is hard to say whether appellant’s criticism of it [307]*307is Avell founded, or not. In order to determine that question, it would be necessary to carefully parse out the language of the entire charge. The ordinary juror should not be required to do this. Perhaps the trained legal mind could demonstrate that, according to the proper meaning of this instruction, it is not subject to the fault claimed. However, it is plain that, on a casual reading of the instruction, the two divisions referred to appear to be conflicting and confusing. It should not have been given in that form.
The giving of instruction No. 4 for the state is assigned a^error by the appellant, which follows: “The court instructs the jury for the state that, under the law, even if you believe from the evidence in the case that the defendant was feeble-minded and could not control himself, had poor judgment, and was not as bright as other men, that it would be your duty to convict him if he knew the difference between moral right and wrong, if he killed the deceased without authority of law and with the deliberate intention of effecting his death.”
The giving of this instruction ivas error, for the following reasons: The jury were charged that they should convict the defendant if he knew the difference between right and wrong, and if he killed deceased without authority of law and with deliberate design to effect his death. They were not instructed, as they should have been,.that it was necessary that this be shown by the evidence, and also beyond all reasonable doubt. The instruction should have been so qualified. In other words, the instruction author--izecl a conviction without showing the existence of the necessary elements of the crime by evidence beyond a reasonable doubt. Gordon v. State, 95 Miss. 543, 49 So. 609; Goodwin v. State, 73 Miss. 873, 19 So. 712.
The giving of the sixth instruction for the state is assigned as error. That instruction is in this language:
“6. The court instructs the jury that, should you acquit the defendant because of insanity, you may render one of the following verdicts: We, the jury, find that the defendant killed the deceased, but we further find that the time [308]*308be so killed the deceased, that he did not know the difference between moral right and wrong, and Ave further find that he has been restored to his reason and is not dangerous to the community.
“Or you may say: We, the jury, find the defendant guilty of killing the deceased without authority of law, but find further that, at the time, the defendant did not know right from wrong, and that the defendant has not been restored to his reason and is dangerous to the community.
“It will then be the duty of the court to order the defendant confined in the insane asylum for treatment until d[s-, charged by the authorities of such institution.”
The principal criticism is addressed to the last two paragraphs of the instructions, which, in substance, told the jury that, if they acquitted the defendant on the ground of insanity, and found that his reason had not been restored, and he was dangerous to the community, it would then be the duty of the court to order him confined in the insane asylum for treatment, until discharged by the authorities of such institution. It is argued that the jury could infer but one thing''from the latter part of this instruction, and that was that, if tlmy acquitted appellant on the ground of insanity, and found that his mind had not been restored at the time of the trial, and that he was dangerous,. he would be sent to the insane asylum and there the authorities would soon discharge him, and he would against be a free man. It is sufficient to say that the jury had nothing to do with the result of such a finding, and therefore the instruction should not have been given in that form.
The giving of the eighth instruction for the state is assigned by the appellant as error. It is in this language: “Insanity cannot be a defense to a criminal charge if the defendant knows the diiference between right and wrong.”
This instruction was erroneous, because it told the jury that insanity was not a defense in a criminal case, “if the defendant knoivs the difference between right and Avrong.” (Italics ours) The Avord “lcnoAvs” refers to the present [309]*309and not to the past. Under the law, appellant must have known the difference between right and wrong at the time of the alleged crime. The manner of the giving of this instruction is also assigned as error. It is shown, by a special bill of exceptions, Avhich is in this language:
“Be it remembered that, on the trial of the above cause, after all arguments were concluded and the case closed and the jury ready to retire and consider their verdict, that the district attorney, prosecuting for the state of Mississippi, procured from the court and read to the jury an additional instruction numbered 8, and in the following words: 'Insanity cannot be a defence to a criminal charge if the defendant knows the difference between moral right and wrong.’ That said instruction was written in longhand by the district attorney, in the presence of the jury, and handed to the court in their presence, and marked 'Given’ by the court in the presence of the jury; that said instruction was not submitted to the attorney for the defendant but immediately read to the jury, and without giving defendant an opportunity to answer same, the defendant not asking for any time, the jury were instructed by the court to retire and consider their verdict.”
It will be seen that this instruction was given after the arguments on both sides had been concluded, and the jury were ready to retire and consider their verdict. If possible, the giving of an instruction, under the circumstances the one here was given, should be avoided; but an .erroneous instruction given under such circumstances could hardly be said to be without prejudice. The giving of this instruction under the conditions named simply meant this: That the trial judge, notwithstanding he had heard the whole case, including the arguments, and had instructed the jury fully, desired to say.one more thing to the jury, and that was that insanity is no defense "if the defendant knows the difference between right and Avrong.” The jury might have thought: "Well, that last instruction must just be the sum and substance of all of them.” The giving of an erroneous instruction under such circumstances had been [310]*310condemned by this court in several cases. Montgomery v. State, 85 Miss. 330, 37 So. 385; Boykin v. State, 86 Miss. 481, 38 So. 725; King v. State, 121 Miss. 230, 83 So. 164; Davenport v. State, 121 Miss. 548, 83 So. 738.
We do not mean to lie understood as holding that each of the errors committed by the court is a reversible error. We simply hold that, under the facts of this case, considering the errors committed all together, it is clear that appellant should have another trial.
Reversed and remanded.