Smith, C. J.,
delivered the opinion of tbe court.
This is an appeal from a conviction of murder followed by a judgment imposing the death penalty. The appellant, a negro, was taking his meals at the home of Caroline Ashford, in the town of Kosciusko. About five thirty p. m. on February 5, 1921, he went to the home of one of Caroline’s neighbors for the purpose of purchasing some milk, and while there was requested by the owner of the premises, in event he should go to town, to tell her son to come home; her reasons for so doing being that there were two drunken men in front of her house, one of whom was Victor Dagen-hardt, a white man, who was killed a few minutes thereafter by the appellant. Instead of going into town to deliver the message, the appellant asked one of the neighbors to do so over the telephone, and returned to Caroline Ash-ford’s.
Caroline was not at home, but her daughter, Jazabelle Jones, was, and it appears from her testimony, she being the only eye-witness to the killing other than the appellant, who did not testify, that when the appellant returned he entered the house hurriedly, and closed the door, being followed immediately by Dagenhardt, in his drunken condition, who shook the door violently and said, “You black son of a bitch, open the door,” to which the appellant replied that “he wasn’t going to do it; that it wasn’t no white folks’ house.” Dagenhardt then left, but returned almost immediately and repeated his demand for entrance. The appellant again declined to admit him, and picked up a single-barrel Shotgun from behind a dresser in the room, appearing to the witness to be badly frightened, by which time Dagenhardt succeeded in forcing the door open, and, as he came into the room, which he did immediately after forcing the door, the appellant shot and killed him. Dagen-hardt. was unarmed. The appellant made no attempt to escape, but surrendered to the sheriff.
Jazabelle Jones was introduced as a witness by the appellant, and not by the state. Her credibility was attacked [853] by the introduction by the state of statements she had made shortly after the killing that when Dagenhardt left the door, and before he returned thereto, “she told Joe Williams that if Mr. Dagenhardt came back not to hurt him; that he was drunk, and that there wasn’t any harm in him.” She denied haying made this statement, or that she so admonished the appellant.
Dagenhardt seems to have been an habitual drunkard, and it was his custom, when drunk, to go to the home of a negro man by the name of Johnson who lived about one hundred yards from Caroline Ashford, and remain there until he became sober.
The cause was submitted to the jury on the theory that the appellant was either guilty of murder or killed Dagen-hardt in self-defense.
The appellant requested, and was refused, an instruction directing the jury to find him not guilty, and also an instruction directing the jury not to find him guilty of the crime of murder. No instruction was requested by either the state or the defendant submitting to the jury the law of manslaughter.
The ground upon which the appellant claims he was entitled to an instruction directing the jury to find him not guilty is that he killed Dagenhardt in order to prevent him from unlawfully entering the house in which the appellant was. The commonlaw right of a person to kill one attempting to unlawfully enter his dwelling or habitation is embraced with the provisions of section 1230, Code of 1906 (section 960, Hemingway’s Code, par. [e]), and is simply that he may kill such a person when necessary to prevent his entry into the dwelling or habitation for the purpose of inflicting death or great bodily harm upon some occupant thereof, or of committing some other felony therein. 13 R. C. L. 840; 1 Wharton on Criminal Law (11 Ed.), p. 806. Assuming for the sake of the argument that the appellant was such an occupant of Caroline Ashford’s house as to entitle him to the benefit of this rule, whether or not Dagenhardt was attempting to enter the house for [854] the purpose of inflicting death or great bodily harm on an occupant thereof, or of committing some other felony therein, and whether or not it was necessary for the appellant to kill him in order to prevent him from so doing, in the opinion of Judges Cook, Sykes, and Smith, were at most, viewing the evidence most favorably for the appellant, question for the jury. The views of Judges Anderson, Ethridge, and Holden in this connection will be found set forth in separate opinions.-
There are three theories under which the appellant could be guilty of manslaughter: First, that he killed the deceased “in the heat of passion, without malice, by the use of a deadly weapon, without authority of law, and not in necessary self-defense” (section 1238, Code of 1906, [section 968, Hemingway’s Code]); second, that he killed the deceased without malice, under the ’bona-fide belief, • but without reasonable cause therefor, that it was necessary for' him so to do in order to prevent the appellant from inflicting death or great bodily harm upon him; and, third, that he unnecessarily killed the deceased while resisting an attempt by the deceased to commit a crime (section 1237, Code of 1906 [section 967, Hemingway’s Code]).
The appellant’s guilt of manslaughter vel non under either of the first two of these theories is, in the opinion of all of the judges, a question for the determination of the jury; but all of them except the writer are of the opinion that, under the provisions of section 1237, Code of 1906 (section 967, Hemingway’s Code), the appellant should not have been convicted, in any event, of a greater ■ crime than manslaughter, for the reason that he killed the deceased while resisting an attempt by the deceased to commit a crime, and consequently that the court below erréd in refusing his request for an instruction directing the jury that it could not find him guilty of murder; for which error its judgment must be reversed.
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Smith, C. J.,
delivered the opinion of tbe court.
This is an appeal from a conviction of murder followed by a judgment imposing the death penalty. The appellant, a negro, was taking his meals at the home of Caroline Ashford, in the town of Kosciusko. About five thirty p. m. on February 5, 1921, he went to the home of one of Caroline’s neighbors for the purpose of purchasing some milk, and while there was requested by the owner of the premises, in event he should go to town, to tell her son to come home; her reasons for so doing being that there were two drunken men in front of her house, one of whom was Victor Dagen-hardt, a white man, who was killed a few minutes thereafter by the appellant. Instead of going into town to deliver the message, the appellant asked one of the neighbors to do so over the telephone, and returned to Caroline Ash-ford’s.
Caroline was not at home, but her daughter, Jazabelle Jones, was, and it appears from her testimony, she being the only eye-witness to the killing other than the appellant, who did not testify, that when the appellant returned he entered the house hurriedly, and closed the door, being followed immediately by Dagenhardt, in his drunken condition, who shook the door violently and said, “You black son of a bitch, open the door,” to which the appellant replied that “he wasn’t going to do it; that it wasn’t no white folks’ house.” Dagenhardt then left, but returned almost immediately and repeated his demand for entrance. The appellant again declined to admit him, and picked up a single-barrel Shotgun from behind a dresser in the room, appearing to the witness to be badly frightened, by which time Dagenhardt succeeded in forcing the door open, and, as he came into the room, which he did immediately after forcing the door, the appellant shot and killed him. Dagen-hardt. was unarmed. The appellant made no attempt to escape, but surrendered to the sheriff.
Jazabelle Jones was introduced as a witness by the appellant, and not by the state. Her credibility was attacked [853] by the introduction by the state of statements she had made shortly after the killing that when Dagenhardt left the door, and before he returned thereto, “she told Joe Williams that if Mr. Dagenhardt came back not to hurt him; that he was drunk, and that there wasn’t any harm in him.” She denied haying made this statement, or that she so admonished the appellant.
Dagenhardt seems to have been an habitual drunkard, and it was his custom, when drunk, to go to the home of a negro man by the name of Johnson who lived about one hundred yards from Caroline Ashford, and remain there until he became sober.
The cause was submitted to the jury on the theory that the appellant was either guilty of murder or killed Dagen-hardt in self-defense.
The appellant requested, and was refused, an instruction directing the jury to find him not guilty, and also an instruction directing the jury not to find him guilty of the crime of murder. No instruction was requested by either the state or the defendant submitting to the jury the law of manslaughter.
The ground upon which the appellant claims he was entitled to an instruction directing the jury to find him not guilty is that he killed Dagenhardt in order to prevent him from unlawfully entering the house in which the appellant was. The commonlaw right of a person to kill one attempting to unlawfully enter his dwelling or habitation is embraced with the provisions of section 1230, Code of 1906 (section 960, Hemingway’s Code, par. [e]), and is simply that he may kill such a person when necessary to prevent his entry into the dwelling or habitation for the purpose of inflicting death or great bodily harm upon some occupant thereof, or of committing some other felony therein. 13 R. C. L. 840; 1 Wharton on Criminal Law (11 Ed.), p. 806. Assuming for the sake of the argument that the appellant was such an occupant of Caroline Ashford’s house as to entitle him to the benefit of this rule, whether or not Dagenhardt was attempting to enter the house for [854] the purpose of inflicting death or great bodily harm on an occupant thereof, or of committing some other felony therein, and whether or not it was necessary for the appellant to kill him in order to prevent him from so doing, in the opinion of Judges Cook, Sykes, and Smith, were at most, viewing the evidence most favorably for the appellant, question for the jury. The views of Judges Anderson, Ethridge, and Holden in this connection will be found set forth in separate opinions.-
There are three theories under which the appellant could be guilty of manslaughter: First, that he killed the deceased “in the heat of passion, without malice, by the use of a deadly weapon, without authority of law, and not in necessary self-defense” (section 1238, Code of 1906, [section 968, Hemingway’s Code]); second, that he killed the deceased without malice, under the ’bona-fide belief, • but without reasonable cause therefor, that it was necessary for' him so to do in order to prevent the appellant from inflicting death or great bodily harm upon him; and, third, that he unnecessarily killed the deceased while resisting an attempt by the deceased to commit a crime (section 1237, Code of 1906 [section 967, Hemingway’s Code]).
The appellant’s guilt of manslaughter vel non under either of the first two of these theories is, in the opinion of all of the judges, a question for the determination of the jury; but all of them except the writer are of the opinion that, under the provisions of section 1237, Code of 1906 (section 967, Hemingway’s Code), the appellant should not have been convicted, in any event, of a greater ■ crime than manslaughter, for the reason that he killed the deceased while resisting an attempt by the deceased to commit a crime, and consequently that the court below erréd in refusing his request for an instruction directing the jury that it could not find him guilty of murder; for which error its judgment must be reversed.
The writer is of the opinion that this instruction was properly refused, and will now briefly set forth his reasons therefor: The statute here invoked, and which the [855] reporter will set out in full,1 does not reduce a killing which would be a murder at common law to manslaughter unless the deceased was killed in the bona-fide resistance by the appellant of the commission of a crime. It affords the slayer no protection if he killed the deceased, not to prevent him from committing a crime, but because of malice previously entertained, or then and there engendered. Long v. State, 52 Miss. 23; William v. State, 120 Miss. 614, 82 So. 318; Williams v. State, 121 Miss. 433, 84 So. 8. The hurried manner in which the appellant entered the house and closed the door, and his being followed immediately by the deceased, indicates that something had occurred on the outside that was disagreeable to the appellant, which fact, together with the vile epithet applied to him by the deceased, and the further fact that the deceased was forcing an entrance into the house, may have so aroused the appellant’s resentment, as his reply to the deceased’s request to open the door seems to indicate, that he killed the deceased because thereof, and not simply to prevent him from committing a crime, and, if the jury should so find, and that question should be left to its determination, the crime committed by the appellant is murder, and not manslaughter. Moreover, what crime, if any, the deceased was committing at the time he was killed is by no means clear, and if, in entering the house, he was committing a crime, the character thereof will depend on the intent with which he entered. For instance, the crime would be burglary if his entry into the house was for the purpose of committing a crime therein, and forcible entry [856] if for the purpose of taking possession of the house. Why Dagenhardt wished to enter the house is not clear, and will never be known unless his reason for so doing is within the knowledge of the appellant, and he should disclose it. It may have been to assault the appellant because of something that occurred on the outside of the house, or he may have mistaken the house for that of Johnson, to which he was accustomed to go when drunk. It may be that, under the construction placed on the statute here in question in Long v. State, 52 Miss. 23, it cannot be invoked by the appellant if the deceased’s intention in entering the house was to assault him, but I will concede for the sake of the argument that it can be, and I will also concede that, although the deceased may not have been attempting to commit a crime, the appellant is entitled to the protection of the statute if he honestly believed that the deceased ivas attempting to commit a crime, provided such belief was induced by such conduct on the part of the deceased as would have induced a reasonable man to so believe; but this question also, in my judgment, is for the determination of the jury.
Reversed and remanded.