At the October term, 1909, of the circuit court of Yazoo county, the appellant, Hill, was tried, convicted, and sentenced *307to the state penitentiary for a term of two years for manslaughter, from which judgment and sentence he prosecutes this appeal.
This case was before us at the March term, 1909, of this ■court, and in reversing a former judgment in it the court said, speaking through Judge Whiteield: “The testimony this case shows that the deceased, Green, was physically twice as ■stout and strong a man as the appellant, and that he was also a man of vindictive and violent character. It is also shown that he had made a wholly unwarranted attack upon the appellant the evening before the killing, and that he was the aggressor in the difficulty in which he was killed. The testimony further shows that appellant was a small man, incapable of coping with deceased physically, and that the appellant was a man of good reputation, and was endeavoring all the time to'avoid a difficulty •with deceased. In this state of the evidence, the court gave, for the state, instruction No. I, which is as follows: ‘The court instructs the jury that the words “great bodily harm,” in contemplation of law, do not mean such bodily harm as might have been inflicted by mere blows with the hands or feet’- — and, having given this instruction for the state, refused the two following instructions for the defendant, which were asked' with a view to cure the error in the fourth instruction for the state on the testimony in the record: ‘The court instructs the jury that if the evidence shows that the deceased was physically capable of inflicting great and serious bodily harm upon the defendant with his feet or hands, and that, the defendant had reason to believe and did believe that he was then and there in danger of such harm at the hands of the deceased, and fired the fatal shot to protect himself from such harm, then it is immaterial, and makes no difference, whether the deceased was armed or not at the time of the killing.’ ‘The court instructs the jury that if the deceased was a much larger and stronger man than the defendant, *308so much, so that the defendant was wholly and absolutely incapable of combating with him in a physical combat, and was liable to receive serious and great bodily injuries at the hands of the deceased in the event that they became engaged in such a combat, then the defendant was justified in using a deadly weapon to protect himself from an unjustifiable and deadly attack of the deceased, even though the deceased was wholly unarmed, and the defendant was in no danger from the deceased,, except such as might be inflicted by the deceased with his hands or feet.’ ”
The court held that instruction No. 4 was erroneous as applied to the facts in this ease, and the court held, further, that in this case the evidence shows plainly such disparity in physical strength and power, and the giving of the fourth instruction, coupled with the refusal of the two instructions set out above, refused to the defendant, constituted fatal error. Hill v. State 94 Miss. 391, 49 South. 145. The record before us now is the same record that was presented on the first trial, barring instruction No. 4, which was not asked by the state in this trial. Under the principles of the law as announced in our former opinion of this case, it was manifest error in the trial court in refusing the two instructions, above set out, asked for defendant on the trial of this case.
Per Curiam.The above opinion is adopted as the opinion of the court.
Reversed.