delivered the opinion of the court.
Williams was indicted for murder and convicted of manslaughter. It is fairly to be deduced from this record that the man he killed was drunk and that Williams was sober; that the deceased was much the more powerful man and in robust health; that Williams was sober, but weak, and a victim of tuberculosis. The occasion was an annual gathering at the church, where there was to be baptizing and then a foot-washing according to the practices of that particular congregation. At such events it appears that the whole neighborhood gathered for miles. The deceased lived in another county and had never been seen there before. His character, as shown by many witnesses, ivas that of being quite violent, and, in the language of some of the state witnesses, “very dangerous.” On that particular Sunday he appeared there and was armed, and had his son with him, who was also armed. He and his following were very boisterous, and disturbed those on the grounds by the promiscuous shooting of pistols and violent, noisy, and blasphemous conduct. The deceased had a grudge against appellant and against appellant’s brother, arising out of some conduct of theirs in the prosecution of deceased for shooting a man some time before. The conduct of deceased was such on or near the church grounds that thirty men -were selected to arrest him, but they were afraid to do it; he waving a knife and swearing that all the men in Leake county could not arrest him. He had been making threats against Williams and his brother, and was inquiring for them. Because of his very dangerous character, Williams’ friends induced him to go home, which he did; his home being about two hundred and fifty yards from the church. *328He was in the habit of going to and from the church by following a by-path through the woods, which made the distance nearer by one-fourth to one-half. Williams went, being then unarmed; but, hearing a renewal of gun shooting or pistol shooting towards the church, he became uneasy about the safety of his brother, who, as he thought, was at the church. Thereupon he got his pistol, and put on a “jumper” coat, and took that path to go to the church, in order to protect his brother, if in danger. In following that path, and near the church, he came to a place where there was a wagon, at' which deceased was standing. As testified to by one of the witnesses for the state, there was general apprehension of trouble if Henson, the deceased, should see Williams, which explains the fact that the friends of Williams induced him to leave the grounds a short time before the encounter. It appears to be also certain that Williams had told his friends that he would not seek Henson, and, if he saw him, would speak to him in a friendly way. It is also clear that Williams had no idea that he would find Henson on the path which he took from his home to the church. It appears that when Williams came up to Henson, and shook hands with him, and asked him, “How are you?” Henson responded with a blasphemous salutation and the statement “I am well enough for you.” This appears from a state witness, who also says that Henson made the first motion with his hand up. presumably, of course, from the statement of many witnesses, to reach for his pistol, when Williams struck his hand down. Several witnesses testify that Henson got his pistol out first, but he caught it in his shirt with his thumb in drawing it. Others testify that the pistols were produced about the same time, but Williams got the’first shot. One of. the state witnesses testifies that Henson cursed Williams and “raised his hand to get his gun.” Certain it is that Williams fired very rapidly two shots, when Henson fell on his hands or elbows and knees, and then it appears from several witnesses, and among them some for the state, who say that when Henson fell on his knees and elbows he *329was trying to shoot his pistol at Williams from the ground, when it was called by by-standers, “Look out, Pleas!” when Williams shot him three times again. This is testified to by witnesses for the state, as well as for the defense. It will be seen that Williams fired two shots very rapidly at Henson standing, when Henson fell, when there was a pause, and Williams turned sideways and then made the last three shots. As a matter of fact it is questionable whether the pause was more than a second.
The foregoing is a general, but fair, résumé of the prominent features in this case, whereupon the court gave the following instruction for the state: “The court instructs the jury that if they believe from the evidence beyond a reasonable doubt that Williams shot Henson two shots, and that Henson was then disabled and on the ground, and while Henson was so disabled and Williams in no danger, real or apparent, of losing his life or having some great bodily harm done him, fired three more shots into the body of Henson, and that such last shooting shortened the life of Henson, then the jury should find the defendant guilty of manslaughter, and that even though Williams in the heat of passion fired the last shots.” This action of the court was erroneous. In situations like this the action of the human mind or the impulses of the human heart cannot be measured by half seconds, and the state cannot make a bonfire with no other fuel than a splinter like this. Besides, there is no sort of proof that the last three shots shortened Henson’s life. Op the contrary, we judge from the testimony that the first two shots were fatal, and that Henson did not live more, perhaps, than three to five seconds, and no jury would he warranted in drawing the conclusion that the last three shots shortened his.life. Beasley v. State, 64 Miss., 518, 8 South., 234.
It was also error to grant this instruction, which was given at the instance of the state, viz.: “The court instructs the jury that if they believe beyond a reasonable doubt from the evidence *330in this case that Pleas Williams armed himself with the pistol for the purpose of killing John Henson, and went to where John Henson was and provoked the difficulty with him in order to get to kill him, and so armed for the purpose of killing him, raised the difficulty with John Llenson, and in pursuance of such purpose killed John Henson, then the defendant cannot justify on the ground of self-defense.” There tyas no evidence whatever before the jury that Williams armed himself with the pistol for the purpose of killing Henson, or that he knew the place where Henson was, or that he went to him and provoked the difficulty with him.
It follows that this case must be reversed and remanded.