Anderson, J.,
delivered the opinion of the court.
Appellant was indicted and convicted in the First district of the circuit court of Jones County of the crime of murder and sentenced to the penitentiary for life. From that judgment he prosecutes this appeal.
Appellant, Fred Tingle, the deceased, and others were engaged in gambling when an altercation arose between appellant and deceased during which hot and abusive words were passed between them. As a result of this altercation, the game, in which they were engaged broke up, the whole party leaving the house in which the gambling
was going on about the same time. A few minutes after-wards appellant and the deceased came together again, when appellant shot the deceased, resulting in his death.
The evidence for the state made out a case of murder, while that for appellant made a case of self-defense. There were several eyewitnesses to the homicide; some, but not all of them, testified, the evidence for the state supporting the charge of murder, while that for appellant that the homicide had been committed in self-defense. In addition, the evidence was such as that the jury would have been justified under the law in returning a verdict of manslaughter. However, no manslaughter instruction was given by the court, neither the state nor appellant requesting such an instruction. The following instruction was given by the court at the request of the state:
‘ ‘ The court instructs the jury for the state that, in the event they find the defendant guilty in this case, they may return one of the following: verdicts, to-wit: ‘We, the jury, find the defendant guilty as charged in the indictment, ’ in which event the defendant will be sentenced to suffer the death penalty. (2) ‘We, the jury, find the defendant guilty as charged in the indictment and fix the penalty at imprisonment in the state penitentiary for the remainder of his natural life.’ (3) ‘We, the jury, find the defendant guilty as charged in the indictment and hereby certify that we are unable to agree on the penalty,’ in which event the defendant will be sentenced to the penitentiary for the remainder of his natural life.”
Appellant contends that the giving of that instruction was error; that it shut the jury out from returning a manslaughter verdict. To support that contention appellant relies on
Allen
v.
State,
104 So. 353, 139 Miss. 605, and
Johnson
v.
State,
23 So. 579, 75 Miss. 635. In the Allen case the jury were charged by the instruction for the state there in question that if they found the defendant guilty of murder they should return either of the three verdicts authorized upon a conviction of murder, or a verdict of not guilty. In that case, as in the present
case, neither side requested a manslaughter instruction. The court held that the instruction given necessarily excluded from the jury any consideration of the crime of manslaughter notwithstanding they might, under the evidence, have found the defendant guilty of that crime; that the instruction, in effect, limited the jury in their consideration to four verdicts, namely, the three verdicts authorized upon a conviction of murder, and-the verdict of not guilty. In the Johnson ease the instruction for the state held to be erroneous was identical in substance with that in the Allen case. The court held in the Johnson case that where a verdict of manslaughter would be justified under one view of the evidence, an instruction limiting the verdict to a conviction of murder or an acquittal was erroneous; that such an instruction “shut the jury up to a verdict of murder or nothing, and was on the record reversible error.”
There is a material difference, we think, between the instruction involved in the present case and the instruction involved in the Allen and Johnson cases, and that difference is this: The instruction under consideration in each of those cases told the jury peremptorily to return a verdict of guilty of murder if they believed from the evidence beyond a reasonable doubt that the defendant killed the deceased not in necessary self-defense; and that in rendering their verdict they should be confined to one of the three verdicts authorized upon a conviction of murder. While in the present case the first paragraph of the instruction in question, which is a part of and modifies each of the three succeeding paragraphs, told the jury that if they found appellant guilty “they
may
return one of the following three verdicts, to-wit” (italics ours). “May” in the connection used was a permissive term, not a mandatory term. A manslaughter instruction in the Allen and Johnson cases would have been squarely in conflict with the instruction upon which those cases were reversed. That is the reasoning upon which those cases were founded. A defendant cannot be put in default and prejudiced by failing to ask for an in
struction to which he is entitled, where the state has obtained an instruction contradictory thereto. The defendant in such a case has the right to stand upon the error in the state’s instruction. The error in the state’s instruction would not be lessened by the giving of an instruction for the defendant in conflict therewith. The principle does not apply here, because in this ease the instruction is not in such terms as to conflict with a manslaughter instruction. In other words, in the present case the instruction complained of can be reconciled with a manslaughter instruction. Its language did not exclude the jury from considering and returning a verdict of manslaughter.
It follows, therefore, that in this case appellant having failed to request a manslaughter instruction, he cannot complain that one was not given.
Dalton
v. State, 105 So. 784, 141 Miss. 841;
McLeod
v.
State,
92 So. 928, 130 Miss. 83;
Hays
v.
State,
94 So. 212, 130 Miss. 381;
Davenport
v.
State,
83 So. 738, 121 Miss. 548;
Pringle
v.
State,
67 So. 455, 108 Miss. 802;
Johnson
v.
State,
63 So. 338, 106 Miss. 94;
Dixon
v.
State,
64 So. 468, 106 Miss. 697;
Canterbury
v.
State,
43 So. 678, 90 Miss. 279;
Shubert
v.
State,
6 So. 238, 66 Miss. 446;
Watkins
v.
State,
60 Miss. 323.
The giving of the following instruction for the state is assigned by appellant as error:
“The court instructs the jury for the state that flight is a circumstance from which as a matter of law the inference of guilty knowledge and fear may be inferred; and if you believe from the evidence in the case that the defendant fled and remained in flight and hiding for a time after he killed the deceased, if you believe from the evidence in the case beyond a reasonable doubt that he killed him, you may take such flight or hiding into consideration along with all of the other evidence in the case in determining the guilt or innocence of the defendant.”
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Anderson, J.,
delivered the opinion of the court.
Appellant was indicted and convicted in the First district of the circuit court of Jones County of the crime of murder and sentenced to the penitentiary for life. From that judgment he prosecutes this appeal.
Appellant, Fred Tingle, the deceased, and others were engaged in gambling when an altercation arose between appellant and deceased during which hot and abusive words were passed between them. As a result of this altercation, the game, in which they were engaged broke up, the whole party leaving the house in which the gambling
was going on about the same time. A few minutes after-wards appellant and the deceased came together again, when appellant shot the deceased, resulting in his death.
The evidence for the state made out a case of murder, while that for appellant made a case of self-defense. There were several eyewitnesses to the homicide; some, but not all of them, testified, the evidence for the state supporting the charge of murder, while that for appellant that the homicide had been committed in self-defense. In addition, the evidence was such as that the jury would have been justified under the law in returning a verdict of manslaughter. However, no manslaughter instruction was given by the court, neither the state nor appellant requesting such an instruction. The following instruction was given by the court at the request of the state:
‘ ‘ The court instructs the jury for the state that, in the event they find the defendant guilty in this case, they may return one of the following: verdicts, to-wit: ‘We, the jury, find the defendant guilty as charged in the indictment, ’ in which event the defendant will be sentenced to suffer the death penalty. (2) ‘We, the jury, find the defendant guilty as charged in the indictment and fix the penalty at imprisonment in the state penitentiary for the remainder of his natural life.’ (3) ‘We, the jury, find the defendant guilty as charged in the indictment and hereby certify that we are unable to agree on the penalty,’ in which event the defendant will be sentenced to the penitentiary for the remainder of his natural life.”
Appellant contends that the giving of that instruction was error; that it shut the jury out from returning a manslaughter verdict. To support that contention appellant relies on
Allen
v.
State,
104 So. 353, 139 Miss. 605, and
Johnson
v.
State,
23 So. 579, 75 Miss. 635. In the Allen case the jury were charged by the instruction for the state there in question that if they found the defendant guilty of murder they should return either of the three verdicts authorized upon a conviction of murder, or a verdict of not guilty. In that case, as in the present
case, neither side requested a manslaughter instruction. The court held that the instruction given necessarily excluded from the jury any consideration of the crime of manslaughter notwithstanding they might, under the evidence, have found the defendant guilty of that crime; that the instruction, in effect, limited the jury in their consideration to four verdicts, namely, the three verdicts authorized upon a conviction of murder, and-the verdict of not guilty. In the Johnson ease the instruction for the state held to be erroneous was identical in substance with that in the Allen case. The court held in the Johnson case that where a verdict of manslaughter would be justified under one view of the evidence, an instruction limiting the verdict to a conviction of murder or an acquittal was erroneous; that such an instruction “shut the jury up to a verdict of murder or nothing, and was on the record reversible error.”
There is a material difference, we think, between the instruction involved in the present case and the instruction involved in the Allen and Johnson cases, and that difference is this: The instruction under consideration in each of those cases told the jury peremptorily to return a verdict of guilty of murder if they believed from the evidence beyond a reasonable doubt that the defendant killed the deceased not in necessary self-defense; and that in rendering their verdict they should be confined to one of the three verdicts authorized upon a conviction of murder. While in the present case the first paragraph of the instruction in question, which is a part of and modifies each of the three succeeding paragraphs, told the jury that if they found appellant guilty “they
may
return one of the following three verdicts, to-wit” (italics ours). “May” in the connection used was a permissive term, not a mandatory term. A manslaughter instruction in the Allen and Johnson cases would have been squarely in conflict with the instruction upon which those cases were reversed. That is the reasoning upon which those cases were founded. A defendant cannot be put in default and prejudiced by failing to ask for an in
struction to which he is entitled, where the state has obtained an instruction contradictory thereto. The defendant in such a case has the right to stand upon the error in the state’s instruction. The error in the state’s instruction would not be lessened by the giving of an instruction for the defendant in conflict therewith. The principle does not apply here, because in this ease the instruction is not in such terms as to conflict with a manslaughter instruction. In other words, in the present case the instruction complained of can be reconciled with a manslaughter instruction. Its language did not exclude the jury from considering and returning a verdict of manslaughter.
It follows, therefore, that in this case appellant having failed to request a manslaughter instruction, he cannot complain that one was not given.
Dalton
v. State, 105 So. 784, 141 Miss. 841;
McLeod
v.
State,
92 So. 928, 130 Miss. 83;
Hays
v.
State,
94 So. 212, 130 Miss. 381;
Davenport
v.
State,
83 So. 738, 121 Miss. 548;
Pringle
v.
State,
67 So. 455, 108 Miss. 802;
Johnson
v.
State,
63 So. 338, 106 Miss. 94;
Dixon
v.
State,
64 So. 468, 106 Miss. 697;
Canterbury
v.
State,
43 So. 678, 90 Miss. 279;
Shubert
v.
State,
6 So. 238, 66 Miss. 446;
Watkins
v.
State,
60 Miss. 323.
The giving of the following instruction for the state is assigned by appellant as error:
“The court instructs the jury for the state that flight is a circumstance from which as a matter of law the inference of guilty knowledge and fear may be inferred; and if you believe from the evidence in the case that the defendant fled and remained in flight and hiding for a time after he killed the deceased, if you believe from the evidence in the case beyond a reasonable doubt that he killed him, you may take such flight or hiding into consideration along with all of the other evidence in the case in determining the guilt or innocence of the defendant.”
It is argued by appellant that this instruction was upon the weight of the evidence. We do not think so. The in
structiou embodies a correct principle of law and was applicable to this case under the evidence.
Appellant assigns as error the giving of the following instruction for the state:
“The court charges the jury for the state that they do not have to know that the defendant is guilty in order to convict him, but the jury will be warranted in and should convict the defendant if they only believe him to be guilty of the crime charged from the evidence in the case beyond a reasonable doubt.”
This instruction is criticized because of the use of the word “only.” We think the instruction would be clearer with the word ‘‘ only” left out; but its use does not change or modify the principle of criminal evidence sought to be embodied in the charge. To say that one believes the existence of a fact beyond a reasonable doubt is exactly the same in meaning as to say that one only believes the existence of a fact beyond a reasonable doubt. The word “only” in the instruction could not have misled the jury.
The giving of instruction No. 4 for the state is assigned as error by appellant. The language of this instruction is so involved (perhaps caused by clerical errors of the draftsman) as not to embody any definite principle. It could not have misled the jury.
We find no harmful error in this record.
Affirmed.