delivered the opinion of the court.
Turner Cooper was tried in the circuit court of the first district of Coahoma county for the murder of Nich Tucker, was convicted of manslaughter, and sentenced -to the penitentiary for ten years, from which judgment he appeals. According to the testimony of several witnesses the parties met in a storehouse, when Cooper fired his pistol at Tucker and inflicted a ' wound upon him, of which he soon died, at a time when Tucker was making no demonstrations against him, and had no weapon with which to do him hurt; according to other witnesses Cooper shot and killed Tucker by reason of an assault and battery upon , him by Tucker with his fist; while still other witnesses stated that Cooper shot Tucker in defense of his person against an assault and battery upon him by Tucker'with a knife.
The court instructed the jury, among other instructions, as follows: No. 3. “The court instructs the jury that if they believe from the evidence beyond a reasonable doubt that the defendant armed himself with a pistol for that purpose, and went to Morgan’s store and. provoked a difficulty with deceased by word or action, intending to use such weapon in the difficulty in the event that it should become necessary to overcome the deceased, and that he then shot and killed deceased in such difficulty, the jury will find him guilty as charged, even though they further believe that deceased was armed with a pistol, knueks, and knife, and attempted to cut defendant, and did cut him; and though they also believe he killed deceased in self-defense.” This instruction was excepted to. The elements of *177siich willful and settled purpose on the part of Cooper to kill Tucker, at all events so as to exclude him from making the plea of self-defense, are, in our opinion, wanting in this case. True it is that Cooper had a pistol, and also had a difficulty with Tucker, but there is no proof that he procured the pistol for the purpose of killing Tucker, or that he provoked a difficulty with him for the purpose of taking his life under the pretense of self-defense. The evidence to justify this instruction cannot be found in this record. An instruction not based upon evidence is fatally erroneous, if by any means it might mislead the jury. Oliver v. State, 39 Miss., 526; Cothran v. State, Id., 541; Frank v. State, Id., 705; Spradley v. State, ante, 82, s.c., 31 So., 534.
Reversed and remanded.