This conviction is for manslaughter, and the punishment assessed is two years confinement in the penitentiary. The indictment charges-the murder of .one Robert Linson.
That our decision of the questions presented in the record may be properly understood, it is necessary that we should summarize the facts in evidence:
Robert Linson was shot and killed in the town of Jewett, Leon county, on the twenty-fifth of March, 1882. Linson, who was a small man, was attacked by the defendant, who was a large man, without provocation and in a violent manner. An effort was made to separate them, when Swan Hardin prevented their separation. Defendant got Linson down on the ground, and beat him severely, and kicked and spurred him on the head, until he was pulled away. After Linson got loose from defendantj and when defendant was again advancing upon him, he, *137Linson, drew a pistol and shot at defendant, and then shot also at one Harris, who had interfered in the difficulty in behalf' of defendant. Several shots were exchanged between Linson and Harris, and Harris was wounded and retired from the conflict. Linson then got behind a hack, a short distance off, and reloaded his pistol. In the meantime defendant had gone after a gun, and returned with a Winchester rifle, with which he attempted to shoot Linson, but was prevented from shooting. At this juncture the county attorney appeared upon the scene, and called upon those who were present, among whom were A. B. Hardin, senior, A. B. Hardin, junior, and Swan Hardin, to arrest the parties who had been engaged in the shooting. Swan Hardin thereupon approached Linson, and was followed by his brother, A. B. Hardin. Lin son’s horse had been led to him, and, when Swan Hardin had reached within a few steps of Linson, some words passed between them, when Linson leaped upon his horse, pistol in hand, and fired upon Swan Hardin. Swan Hardin fired upon Linson at the same instant. As Linson rode off he fired again at Swan Hardin and Swan Hardin fired two other' shots at him. Swan Hardin was wounded by one of Linson's shots. As Linson rode off he was also fired upon by A. B. Hardin, sr., and A. B. Hardin, jr., and after going a few steps he fell from his horse, dead. While the shooting between the Hardins and Linson was taking place, the defendant was a little distance away, with his gun, but did not shoot or make any attempt at that time to shoot, and was apparently taking no part in the difficulty. From the commencement of the difficulty between Linson and the .defendant to the killing of Linson was but a very short time, perhaps not exceeding ten minutes.
How, upon this state óf facts what is the law? We will state our view of it as applicable to the case:
1. If the defendant was acting together with the Hardins, or either of them, in provoking a contest with Linson, with the purpose and intent of killing said Linson, or doing him serious injury, and in pursuance of this common design and purpose the Hardins, or either of them, the defendant being present, shot and killed Linson, then the defendant would be guilty as a principal in the murder, as much so as if he had fired the fatal shot.
2, If the Hardins were justifiable in killing Linson, the defendant would not be guilty of the homicide. Thus, it Swan Hardin, in good faith, without the purpose or intent to kill Lin-son or do him serious injury, advanced upon Linson for the pur*138pose of arresting him for a felony or breach of the peace committed within his view, and Linson fired upon him, and Swan Hardin, or his father or brother, or all of them together, fired upon and killed Linson in the necessary defense of the life of Swan Hardin, then this would be justifiable homicide, and neither the Hardins nor the defendant would be guilty of unlawful killing.
3. If the difficulty between Linson and defendant had terminated, and the Hardins, without the knowledge, advice, concurrence, aid and encouragement of the defendant, independently, of their own accord, and to" accomplish a purpose and intent of their own, shot and killed Linson, the defendant would not be responsible for their acts, although he was himself seeking to kill the deceased unlawfully.
4. If the defendant attempted to shoot the deceased, with intent to kill him, and in such attempt was actuated by malice aforethought, and under circumstances in which, if the death of Linson had resulted, the homicide would have been murder, and the defendant was prevented from any cause from effecting his purpose, than he would be guilty of assault with intent to murder.
5. There is no evidence in the case which would warrant a chargé or sustain a conviction for manslaughter, viewing and construing the facts fairly and reasonably.
A,voluminous charge was given to the jury by the learned trial judge, which covers thirty-eight pages of the transcript. It contains instructions up >n several issues which are in no manner presented by the evidence in the case, and which could only tend to confuse and mislead the jury. We shall not pause to point out these objectionable instructions in detail. It was doubtless the object of the learned judge to give to the jury all the law applicable to the evidence in the case; but. in his anxiety to do this, we think he submitted several issues not raised by the facts in proof. On the other hand, he failed to instruct the jury fully and correctly upon the two propositions stated in paragraphs 2 and 3 of this opinion; which in our judgment are vital issues in the case, and are fairly presented by the'evidence. Special charges upon these issues were requested by the defendant and refused by the court, and the action of the court in refusing them was properly excepted to.
Numerous and specific exceptions were made to the charge of the court as given to the jury, and are presented for our con*139sideration in a bill of exceptions. It would consume too much time, and lengthen this opinion unnecessarily, were we to enter upon a discussion of the various objections made to the charge of the court; many of which we think are tenable. We have said enough, we think, to make plain our view of the law as applicable to the facts of this case, and as the charge given to the jury does not in our opinion, properly present the law, but in some respects erroneously presents it, and presents issues not raised by the evidence, and in such manner as to prejudice perhaps the defendant’s rights, the judgment is reversed and the cause is remanded for a new trial.
Opinion delivered November 24, 1883.Reversed and remanded.