(after stating the facts.) The court erred in giving the instruction objected to by the appellant. It told the jury, in effect, that if deceased assaulted the appellant with a gun, and appellant succeeded in getting hold of it before Crews, the deceased,. had an opportunity to discharge it, and the defendant had reasons to believe that he might take the gun from the deceased, then it was the duty of the defendant to have done all that was reasonably in his power to prevent Crews from shooting him, or doing him great bodily injury; and if he failed to do this he was guilty of murder in the second degree if he acted with malice, or voluntary manslaughter if he acted without analice. It made the guilt or innocence of the defendant dependent upon the existence of reasonable grounds to believe that he might take away the gun from the deceased, regardless of how it appeared to the defendant or his belief of his power to do so. This is not the law. Smith v. State, 59 Ark. 132; Magness v. State, 67 Ark. 599-603; Hoard v. State, 80 Ark. 87.
The instruction objected to is inconsistent with and contradictory to the instruction given at the instance of the defendant, and misleading, and should not have been given. Pleasant v. State, 13 Ark. 360; Bolling v. State, 54 Ark. 588-602; Selden v. State, 55 Ark. 397.
Appellee insists that the instruction objected to is a copy of the one sustained in Thomas v. State, 74 Ark. 431. But this statement is not correct. In that case the court instructed the jury that if they believed “that George Thomas made an assault upon the defendant with the gun, and that defendant got hold of the same before Thomas had an opportunity to discharge it, and that by reason of the difference in their ages and physical strength, under all the circumstances then and there existing as the same appear from the evidence, the defendant had reasonable grounds for believing that he might take away the gun from the hand of George Thomas,” etc. We held that this instruction 'did not instruct the jury upon the weight of evidence, and that the instructions, construed together, were not prejudicial. All the instructions given in the case were not copied in the opinion, and the only objection to the instruction was that it instructed the jury upon the weight of the 'evidence, and that was the only objection noticed in the opinion. It was not held that it was correct. In connection with other instructions, we held that it was not prejudicial. The evidence showed that the defendant held the gun off from him with his left hand while he drew his pistol with his right, thereby showing no necessity for killing the deceased to protect himself, and a reason why the instruction, construed in connection with others, was not prejudicial.
As to the duty to retreat, see Carpenter v. State, 62 Ark. 286.
For the error indicated the judgment of the circuit court is reversed, and the cause is remanded for a new trial.