The deceased when only a few feet from the appellant was attempting to disarm him by threatening him with a pistol pointed directly at him, in violation of Section 2013, Code of 1942. The homicide occurred either while the appellant was resisting this attempt to disarm him or immediately after the attempt had failed. In either event, since the evidence does not disclose that he bore any malice toward the deceased prior to the attempt of the deceased to disarm him, he is guilty only of manslaughter under Section 2225, Code 1942, which provides: "Every person who shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or to do any unlawful act, or after such attempt shall have failed, shall be guilty of manslaughter." Williams v. State, 120 Miss. 604, 610, 82 So. 318, Dissenting Opinion adopted on Suggestion of Error as the opinion of the Court in Williams v. State, 122 Miss. 151, 84 So. 8; Fletcher v. State, 129 Miss. 207, 91 So. 338; Walker v. State, 188 Miss. 177, 189 So. 804; Williams v. State, 127 Miss. 851, 90 So. 705; Bergman v. State, 160 Miss. 65, 133 So. 208; Bangren v. State, 196 Miss. 887, 897, 17 So.2d 599; Bowen v. State, 164 Miss. 225, 235, 144 So. 230, 232; Jones v. State,170 Miss. 581, 155 So. 430.
Consequently, the Court below erred in not granting the appellant's request for an instruction charging the jury "that you can not convict him (the defendant) of any crime greater than manslaughter." I concur, therefore, in reversing the judgment of the court below, but *Page 865 only on the ground that it should have granted this instruction.