delivered the opinion of the court.
The fifth instruction given for the state is in these words: “To justify the defendant, Harris, on the ground of self-defense, he must have shot the deceased because he believed from some act of the deceased that deceased was about to kill him, or do him great bodily harm, and because he, as a reasonable man, believed that unless he shot deceased, deceased would, at the time, kill him or do him great bodily harm. He cannot justify himself merely because deceased threw his hand behind him, because that, of itself, gave him no right to shoot deceased. Nor can he justify himself merely because deceased was running towards a Winchester rifle (if you believe this), that he, Harris, had just thrown down; he must have honestly and reasonably believed that deceased intended to kill him or do him great bodily harm, and not merely that deceased intended to resist arrest or intended to flee. ’ ’
*248The defendant, by his evidence on the trial, was attempting, in part, to justify the homicide on the ground of self-defense, by showing that the deceased, at the time of the killing, threw his hand to where he had a pistol on his person, and that he made some effort to draw the weapon, and that defendant then saw the handle and lock of the weapon; and that deceased, at the moment he was shot by defendant, was running towards and reaching over for the rifle which defendant had thrown down, and that deceased fell, on being shot, with one of his hands on the rifle.
The instruction as asked and given emasculates this evidence offered by the defendants, and then charges upon the weight of the fragments left. For the error above indicated, the judgment is
Reversed.