(dissenting).
I dissent from the majority opinion. In my judgment this is a typical case for the application of the principle that, a person being assaulted by another much larger and stronger than himself, and capable of inflicting great bodily injury with his hands and feet, or either such person so assaulted is justified in using a deadly weapon to protect himself, though the assaulting party is unarmed. Deceased knocked appellant down, and according to the latter’s testimony, which is practically undisputed, was on top of him, choking him, beating him in the face, and gouging him in the eyes, when appellant stabbed him with his knife, which he got out while down, *583until deceased got oft of Mm, when it was soon discovered-that his wounds were fatal. Deceased weighed from one hundred and eighty to one hundred and ninety pounds, and was very strong physically; while appellant weighed from one hundred and thirty to one hundred .and forty-five pounds, and was physically weak. The killing took place about twelve o’clock at night, in or near the yard of decedent, in the dark, in the presence of several witnesses, who were unable, on account of the •darkness, to see whether either of the combatants were armed. In this state of case, the fourth instruction for -the state, by which the court told the jury “that the .great bodily harm, sufficient to justify killing, does not mean mere bruises inflicted by the hands and fists,” had no place. Conceding that in the abstract it correctly states the law, still it is not the law of this case. It had no application whatever to the facts here. This identical instruction was condemned as erroneous in Hill v. State, 94 Miss. 391, 49 South. 145. It is true the reversal was not put on that ground alone, for it was not necessary; but had there been no other errors, plainly, on the facts of that case, that alone should have caused the ■same result. And the error in giving this instruction for the state was not cured by those given for the appellant; for, taking them together, as applied to the particular facts of this case, and they áre conflicting, and calculated to confuse and mislead the jury.
By the first instruction for the state the jury were told that they were the- sole judges of the credibility of the witnesses, and could discard the testimony of any witness, if they believed from the testimony that such witness had not sworn truthfully. The majority opinion approves this instruction, holding that it does not embody the falsus in uno, falsus in omnibus doctrine. It appears to me to be more vicious even than the instructian condemned in Bell v. State, 90 Miss. 104, 43 South. 84; Railway Co. v. McCoy, 85 Miss. 391, 37 South. 706; *584Railway Co. v. Hedrick, 62 Miss. 28; Finley v. Hunt, 56 Miss. 221, and Gaines v. State, 48 South. 182. For in all those cases the instruction contained the qualification that the false testimony must have been as to some-material fact, while this instruction informs the jury that they may disbelieve a witness entirely if he “has not sworn truthfully” — a fair interpretation of which, in my judgment, is that the jury were authorized to-discard the testimony of any witness if he had sworn falsely as to any fact, whether material or immaterial, and whether such false swearing was willful or corrupt. In a close case like this, where the principally interested' witness is the defendant, such a .charge may have a most, harmful effect.