Douglas v. State , 2 Miss. Dec. 220 ( 1881 )

Opinion.

Per curiam:

It is doubtful whether the testimony shows the accused to have been guilty of anything more than manslaughter, but we would not, perhaps, disturb the verdict if the instructions were unobjectionable. The first instruction for the State announces that in cases of homicide “the justification must arise out of the perilous situation of the slayer and a necessity to take life in order to extricate himself from imminent, present, and urgent danger to his own life or great personal injury.” It omits the qualification that a reasonable apprehension of such danger, honestly entertained, is equally available to the party slaying as actual danger.

The defect is perhaps Supplied by the second instruction for the defense, but in a case so nicely balanced on the facts and so doubtful as to the degree of crime of which the accused was guilty, we are not disposed to apply the doctrine that one instruction cures the other.

Judgment reversed and new trial awarded.