delivered the opinion of the court.
The clerical mistakes in the copy of the indictment and *408special venire served upon the defendant could not possibly have prejudiced him, and there was no error in refusing the continuance asked for on account of them.
There was no error in rejecting, as incompetent, William. Beeves, a member of the special venire, who stated that he had conscientious scruples against capital punishment. Russell v. The State, 53 Miss.
There was no error in summoning by-standers to complete the jury, after the exhaustion of the special venire, there being no regular venire for the week nor talesmen.
There is no error in the third and sixth instructions given for the state. The third omits the words “ with a deadly weapon.” If it be conceded that this omission was erroneous, it is abundantly cured bjr a number of the others.
The tenth instruction asked for defendant was correct, but its refusal constitutes no error, because the substance of it is contained in several others granted, particularly in defendant’s sixth.
Defendant’s thirteenth instruction was properly refused, because not applicable to the facts. So much of it as was applicable was embraced in defendant’s fourteenth instruction.
There was error in granting the eleventh instruction for the state.
By it the jury were informed that the assault which a man may kill his antagonist in resisting “must be an assault within striking distance ; ” and, further, that if they believed that, “at the time of the shooting, the deceased was not in striking distance of FortenbexTy, by axxy weapoxi shown to be in his hand, they must find the accused guilty of murder.”
This is erroneous under the facts of this case. The statute dechxres homicide justifiable “when there shall be reasonable ground to apprehend a’ dcsigxi to commit a felony or do soxne great personal injury, and there shall be imminent danger of such design beixxg accomplished.”
The reasonable appearance of danger must be imminent — that is to say, there must be a reasonable apprehension, from soxne overt demonstration, that the danger is thexx axxd there *409present and impending — but it is not necessary for tbe party assailed, or about to be assailed, with a deadly weapon to wait until the assailant is within striking distance, in the sense in which the expression is here used.
The deceased, according to defendant’s witnesses, was rapidly advancing with a drawn knife, in a threatening and hostile manner, upon defendant, who was'armed with a gun. He would not have arrived within striking distance with his knife until he had come within arm’s length. Then, defendant’s gun would have been comparatively useless, and the knife of deceased, most deadly'. A man assaulted, or about to be assaulted, with a deadly weapon is not bound to wait until .his antagonist gets upon equal, much less upon superior, terms. He may rightfully use the advantage which his own innocence and his assailant’s rashness have given him.
It is impossible to say that this charge worked no prejudice to the defendant.
In this class of cases we cannot hold that the jury were not misled by an erroneous-charge, if there is any possible view of the testimony which would warrant a verdict of acquittal. In other words, we could only affirm a verdict of conviction, despite erroneous charges, where, conceding all the testimony of defendant to be true, the verdict was, nevertheless, manifestly correct. We cannot say that this is the case here. Whatever opinion we may entertain with regard to the testimony of defendant’s wife and daughter, we are bound to treat it as true in the consideration of this charge.
According to their statements, deceased had grossly insulted defendant and his wife in their own house. - He had drawn his knife upon defendant, rubbed his clenched hand against his face, and in eveiy way possible attempted to provoke a fight, which defendant declined. Leaving the house, he continued his abusive language. When at length defendant, who remained standing on his porch, returned one of the abusive epithets, deceased started back towards him, with his knife still drawn, declaring that he would not stand it; and, despite the *410warnings of the wife, continued to advance until he was shot doivn. The distance at which he then was from defendant is variously estimated at from tAventy to thirty steps. Certainly the knife Avas not eifective at that distance ; but defendant Avas notbouud to wait until it became so, and the jury should have been left, uninfluenced by erroneous charges, to say whether there Avas, under this state of facts, a reasonable appearance of imminent danger. It is true that defendant’s fourteenth charge contained a fair summary of the wife’s statement, and the jury were there told that if they believed this statement, “ and that the danger to Fortenberry of losing his life or having great bodily harm inflicted upon him by Haddox was immediate and imminent, he avhs not guilty; ” but this instruction contained no information as to what was “ imminent and immediate danger,” and the jury, looking back to the eleventh instruction given for the state, would be there informed that it could not exist until the deceased came within striking distance AAdth his knife. It was impossible, therefore, for the one instruction to neutralize the other. The error in the eleventh instruction for the state is, to some extent, contained in the tenth also. For this error the case must be reversed. As it must undergo another trial, Ave feel called upon to «ay that Ave are not to be understood as indorsing the truth of the theory of the facts here presented, except for the proper consideration of the erroneous instructions.