Per Curiam.
This is an appeal from a conviction for murder followed by a death sentence.
On the occasion in question, some sort of a show was being given in the town of -Areola with its accompanying crap game, in which game the appellant and Lucius Blevin, among others, were engaged. A controversy arose during the progress • of the game between the appellant and Blevin, which Blevin shortly thereafter reported to the deceased and Tom Williams, both of [605]*605whom were deputy sheriffs, stating that the appellant had threatened him with a pistol. The deceased thereupon took the appellant into custody, and was joined shortly thereafter by the other deputy, Tom Williams. What then occurred, according to the state’s theory, will he best told in the language of Williams, who testified on behalf of the state:
“Q. When you saw him next, he was under arrest with Mr. E. L. William's, the dead man? A. Yes, sir.
“Q. Where was he when you saw him there? A. Out there hack of a hoarding house, down there at Areola.
“Q. What was Mr. Williams doing with him? A. Mr. Williams was setting down on an old safe there, and the negro was standing out in front of him.
“Q. What did you do — go up where they were? A. Yes, sir.
“Q. Go ahead and tell what occurred from then on? A. Mr. Williams told me: ‘ Tom, this negro had a pistol here, and he has thrown it away. Let’s look for it. Hold him here until I look for the pistol. ’ And I said: All right. He is just lying, though. He has it around here somewhere himself.’ This negro said, ‘I sent it home by my brother-in-law. ’ I told Mr. Williams he was lying; .that he hadn’t sent it anywhere. He looked around under the house a few minutes and couldn’t find it, and I said: ‘Well, he said he had it. That is sufficient, and he has been toting it around.’ He said, ‘If we get the pistol that will be better.’ Then he said, ‘We will take him on over there to the house,’ and the .negro said, ‘I have my horse here, Mr. Williams,’ and Mr. Williams said, ‘Get the horse, Lucius,’ and this negro, Mat Thomas, I told him to come too. We went across the railroad three or four hundred yards from where we started from, and he ran his hand down in here (indicating), and said his drawers were down. I noticed him by the light from the railroad. We could see [606]*606by that. It was dark there where we had been. The first thing I knew then he put the gun up to my cheek and shot me like that (indicating), and shot Mr. Williams in the side. I turned around and pulled my gun and made one shot. The first shot I shot in the ground right by him, and the next shot I made he ran off and shot at me twice. I asked Lucius for more shells, -and he said, ‘No, sir. . .
“Q. Who is Lucius? A. Lucius Blevin, a state witness. He said, ‘No sir; I haven’t got any shells.’ He loaded up the second time and came back, and the second shot he run up behind me as I was crossing the railroad and shot me through the hand, and then shot me through the thumb, and Lucius said, ‘Mr. Tom, please come on, that nigger’s going to kill you,’ and caught ahold of me, and I said, ‘Turn me aloose,’ and I went up to the section house and told Mr. Tom about it.”
• On cross-examination this witness further testified that while they were back of the boarding house, and while the appellant was held by Mat Williams and Lucius Blévin, he was struck, but twice only, with the buckle end of a trousers belt, and with nothing else, in order to make him tell where his pistol was.
The appellants evidence was in sharp conflict with that of the state’s witnesses, and, if true, fully supported his claim that he killed the deceased in self-defense. His theory of the case is contained in the following questions and answers which appear in the transcript of his evidence in chief:
“Q. Go ahead and tell the jury all about that; they are going to decide whether you will be hung or not. A. Yes, sir; I will tell them the truth and nothing but the truth. Well, the way it was, from the first beginning, it started about a dollar and a -quarter. Albert Kimberly put a dollar and a quarter down, and Lucius picked it up. Mat said, ‘I shoot a dollar and a quarter.’ He said: ‘No, I don’t shoot it; I put the money down [607]*607there.’ And he looked around and said, ‘Who got my money?’ The boy said:‘I ain’t got.it; yon ain’t pnt any down there.’ The hoy asked me didn’t he pnt it down there, and I said: ‘Yes, he pnt it down, two solid halves and a quarter. I reckon he did. Lucias that time run around to grab me to cut me, and another fellow run in betwixt us, and said, ‘No, I wouldn’t do anything like that,’ and by that time I went out and got a brick, and he said I drawed a pistol on him. ' I didn’t do that. Time I got out the house Mat come up and said, ‘Boys, I wouldn’t have any trouble.’ I said, ‘I ain’t doing nothing, no use for me to let them run over me. ’ I had a brick in my hand then and never pulled a pistol, at all. After that I went around on the front part, where the show was and went back in the gambling house. That time Mat was up in the box cutting off the game, and finally Mr. Tom came in. and Mat gets down and gives somebody else his game. .Then after he stood around awhile Mr. Tom went to the door and ■ got to whispering around, and Mr. Tom left then. I doii’t know where he went I suspieioned then—
“Q. What Tom was that? A. Mr. Tom Mosely. After I heard that whispering and all going on, I said. ‘Well, that fellow has told him I had a pistol or something.’ That time I goes out then and hides this gun, and time I goes and hides the gun I went back where the boys gambling, standing up in there. After awhile I went back out the door again, and Mr. Williams was standing out there, and he walked up to me.
“Q. Which Williams was that? A. Mr. R. L. Williams. He came up to me and said, ‘Where is the gun "at?’ I said, I haven’t any,’ and he searched me and didn’t find any. He found a schabbard on me, and said, ‘Where that gun at, nigger?’ I said: ‘I haven’t got any gun. I sent it home by my brother-in-law,’ that very way. So I walks on off, and he said, ‘I told you to stand here, not move any more.’ I said, ‘All right, [608]*608Cap,’ and that time Mr. Williams sent for Mr. Tom, and I said, ‘I am going to stand here and won’t move any more. ’ That time Mr. Tom came np an ousted his gnn and pats it in my face. I said: ‘That’s all right, white folks; I haven’t got a pistol.’ He curses me and says, ‘You son of a hitch! You get it. ’ I said,' I haven’t got any gun.’ He said,‘Boys, get him.’ He said to me, ‘Come around here,’ and I went around there, and he called Mat and Lucius, and they carried me up there to the gin and taken me out there and made me pull iny clothes off, and I begged them -not to whip me and I would tell them where the gun. He said, ‘No, you' don’t know where it is at.’ And they stretched me out, one on my head and one on my feet. Mr. Tom grabbed his gun and hit me once on this side and once on this side (indicating). Mr. Tom grabbed the belt and hit me two licks and the buckle broke off then,- and Mr. R. L.‘ William said, ‘Go in there and get a gin belt. ’ He said ‘No, 1 can’t get in there,’ and that'time Mr. Tom walks up and kicks me here on my mouth. My mouth commenced to bleeding all down here, and I said, ‘Let me ■ up, and I will go and get the gun.’ They let me up then, and I put my clothes back on me.
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Per Curiam.
This is an appeal from a conviction for murder followed by a death sentence.
On the occasion in question, some sort of a show was being given in the town of -Areola with its accompanying crap game, in which game the appellant and Lucius Blevin, among others, were engaged. A controversy arose during the progress • of the game between the appellant and Blevin, which Blevin shortly thereafter reported to the deceased and Tom Williams, both of [605]*605whom were deputy sheriffs, stating that the appellant had threatened him with a pistol. The deceased thereupon took the appellant into custody, and was joined shortly thereafter by the other deputy, Tom Williams. What then occurred, according to the state’s theory, will he best told in the language of Williams, who testified on behalf of the state:
“Q. When you saw him next, he was under arrest with Mr. E. L. William's, the dead man? A. Yes, sir.
“Q. Where was he when you saw him there? A. Out there hack of a hoarding house, down there at Areola.
“Q. What was Mr. Williams doing with him? A. Mr. Williams was setting down on an old safe there, and the negro was standing out in front of him.
“Q. What did you do — go up where they were? A. Yes, sir.
“Q. Go ahead and tell what occurred from then on? A. Mr. Williams told me: ‘ Tom, this negro had a pistol here, and he has thrown it away. Let’s look for it. Hold him here until I look for the pistol. ’ And I said: All right. He is just lying, though. He has it around here somewhere himself.’ This negro said, ‘I sent it home by my brother-in-law. ’ I told Mr. Williams he was lying; .that he hadn’t sent it anywhere. He looked around under the house a few minutes and couldn’t find it, and I said: ‘Well, he said he had it. That is sufficient, and he has been toting it around.’ He said, ‘If we get the pistol that will be better.’ Then he said, ‘We will take him on over there to the house,’ and the .negro said, ‘I have my horse here, Mr. Williams,’ and Mr. Williams said, ‘Get the horse, Lucius,’ and this negro, Mat Thomas, I told him to come too. We went across the railroad three or four hundred yards from where we started from, and he ran his hand down in here (indicating), and said his drawers were down. I noticed him by the light from the railroad. We could see [606]*606by that. It was dark there where we had been. The first thing I knew then he put the gun up to my cheek and shot me like that (indicating), and shot Mr. Williams in the side. I turned around and pulled my gun and made one shot. The first shot I shot in the ground right by him, and the next shot I made he ran off and shot at me twice. I asked Lucius for more shells, -and he said, ‘No, sir. . .
“Q. Who is Lucius? A. Lucius Blevin, a state witness. He said, ‘No sir; I haven’t got any shells.’ He loaded up the second time and came back, and the second shot he run up behind me as I was crossing the railroad and shot me through the hand, and then shot me through the thumb, and Lucius said, ‘Mr. Tom, please come on, that nigger’s going to kill you,’ and caught ahold of me, and I said, ‘Turn me aloose,’ and I went up to the section house and told Mr. Tom about it.”
• On cross-examination this witness further testified that while they were back of the boarding house, and while the appellant was held by Mat Williams and Lucius Blévin, he was struck, but twice only, with the buckle end of a trousers belt, and with nothing else, in order to make him tell where his pistol was.
The appellants evidence was in sharp conflict with that of the state’s witnesses, and, if true, fully supported his claim that he killed the deceased in self-defense. His theory of the case is contained in the following questions and answers which appear in the transcript of his evidence in chief:
“Q. Go ahead and tell the jury all about that; they are going to decide whether you will be hung or not. A. Yes, sir; I will tell them the truth and nothing but the truth. Well, the way it was, from the first beginning, it started about a dollar and a -quarter. Albert Kimberly put a dollar and a quarter down, and Lucius picked it up. Mat said, ‘I shoot a dollar and a quarter.’ He said: ‘No, I don’t shoot it; I put the money down [607]*607there.’ And he looked around and said, ‘Who got my money?’ The boy said:‘I ain’t got.it; yon ain’t pnt any down there.’ The hoy asked me didn’t he pnt it down there, and I said: ‘Yes, he pnt it down, two solid halves and a quarter. I reckon he did. Lucias that time run around to grab me to cut me, and another fellow run in betwixt us, and said, ‘No, I wouldn’t do anything like that,’ and by that time I went out and got a brick, and he said I drawed a pistol on him. ' I didn’t do that. Time I got out the house Mat come up and said, ‘Boys, I wouldn’t have any trouble.’ I said, ‘I ain’t doing nothing, no use for me to let them run over me. ’ I had a brick in my hand then and never pulled a pistol, at all. After that I went around on the front part, where the show was and went back in the gambling house. That time Mat was up in the box cutting off the game, and finally Mr. Tom came in. and Mat gets down and gives somebody else his game. .Then after he stood around awhile Mr. Tom went to the door and ■ got to whispering around, and Mr. Tom left then. I doii’t know where he went I suspieioned then—
“Q. What Tom was that? A. Mr. Tom Mosely. After I heard that whispering and all going on, I said. ‘Well, that fellow has told him I had a pistol or something.’ That time I goes out then and hides this gun, and time I goes and hides the gun I went back where the boys gambling, standing up in there. After awhile I went back out the door again, and Mr. Williams was standing out there, and he walked up to me.
“Q. Which Williams was that? A. Mr. R. L. Williams. He came up to me and said, ‘Where is the gun "at?’ I said, I haven’t any,’ and he searched me and didn’t find any. He found a schabbard on me, and said, ‘Where that gun at, nigger?’ I said: ‘I haven’t got any gun. I sent it home by my brother-in-law,’ that very way. So I walks on off, and he said, ‘I told you to stand here, not move any more.’ I said, ‘All right, [608]*608Cap,’ and that time Mr. Williams sent for Mr. Tom, and I said, ‘I am going to stand here and won’t move any more. ’ That time Mr. Tom came np an ousted his gnn and pats it in my face. I said: ‘That’s all right, white folks; I haven’t got a pistol.’ He curses me and says, ‘You son of a hitch! You get it. ’ I said,' I haven’t got any gun.’ He said,‘Boys, get him.’ He said to me, ‘Come around here,’ and I went around there, and he called Mat and Lucius, and they carried me up there to the gin and taken me out there and made me pull iny clothes off, and I begged them -not to whip me and I would tell them where the gun. He said, ‘No, you' don’t know where it is at.’ And they stretched me out, one on my head and one on my feet. Mr. Tom grabbed his gun and hit me once on this side and once on this side (indicating). Mr. Tom grabbed the belt and hit me two licks and the buckle broke off then,- and Mr. R. L.‘ William said, ‘Go in there and get a gin belt. ’ He said ‘No, 1 can’t get in there,’ and that'time Mr. Tom walks up and kicks me here on my mouth. My mouth commenced to bleeding all down here, and I said, ‘Let me ■ up, and I will go and get the gun.’ They let me up then, and I put my clothes back on me. Blood was running down my face, and I said, ‘Let me go get my horse,’ and they told me go get your horse, and I said, ‘All right, sir.’ I went down there, and they wouldn’t let me get the horse.- Mr. Williams had- a flashlight and looked all under the house where the boys was gambling, and he couldn’t find it and searched my horse and couldn’t find it, and he said, ‘That nigger’s got that gun, let’s go carry him back to the gin,’ and told me to get in front. I said: ‘I will get it. Don’t kill me.’ He said, ‘I will kill you if you don’t.’ I said. ‘Lordy, if I don’t get it I am killed, and if I do get it I am killed. ’ Mr. Tom was on the side of me. Mr.' Williams was in front of mé about as far as from here to Mr. Boddie, and this Mat was, behind me, and Mr. Tom on the side [609]*609of me, and this Lncins in front of me like the gentleman sitting there, and he was leading the horse, and I said, ‘Lord, horse, yon ahont to walk over me,’ and Mr. Williams said, ‘She don’t know yon to-night, does she? I said, ‘No, sir; she don’t know me.’
“Go on and tell it all. A. So that time Mr. Tom shot off, and that time I started to break to rnn. I says: ‘No, don’t rnn. If you do, he will kill yon.’ One mind said, ‘Get yonr gun,’ and that time I eased up to my horse and got my gun from under the pummel of the saddle on my horse, and they makes a shot and I breaks to rnn, and I runs off in the weeds, and they makes four or five shots at me, and I was running, and I made three shots and run off in the weeds then. They shot me here (indicating), and shot me there (indicating). That is all.
“Q. Didn’t yon go hack up there and shoot them some more? A. No, sir; I did not.”
Section 1237, Code of 1906 (1 Hemingway’s Code, section 967), provides that: “Every person who shall unnecessarily kill another, either while resisting an attempt hy such other person to commit any felony, or to do any unlawful act, or after such attempt shall have failed, shall he guilty of manslaughter.”
Judges Etheidge, HoldeN, and SteveNS are of the opinion that the appellant’s contention that under this statute his conviction should have been limited to manslaughter should he sustained, and the judgment of the lower court reversed; their reasons therefor being set forth in a separate opinion.
Judges Sykes. Cook, and Smith are of the opinion that on the evidence it was for the jury to say whether the appellant killed the deceased in the bona-fide resistance of an attempt hy the deceased to do an unlawful act, viz. to force him hy the use of unlawful means to deliver up his pistol, or whether he killed the deceased, not in order to prevent the commission of the unlawful [610]*610act, but because of malice engendered in bim by tbe treatment be bad just.- prior thereto received and was still receiving at tbe bands of tbe deceased; that if tbe appellant killed tbe deceased because of malice so engendered, and not in order to prevent tbe commission of tbe unlawful act, as tbe jury evidently believed, be is guilty of murder, and cite in support thereof Long v. State, 52 Miss. 23; McMaster v. State, 29 So. 522; Brown v. State, 98 Miss. 786, 54 So. 305, 34 L. R. A. (N. S.) 811.
We find no reversible error at all in tbe other rulings of tbe trial judge of which complaint is made.
Affirmed, and Friday, tbe 29th day of August, 1919, fixed as tbe day for tbe execution of tbe sentence.
Affirmed.