(dissenting). I think tbe judgment of the lower court should be reversed because under tbe statutes, section 1237 and 1044, Code of 1906, sections 967 and 772, Hemingway’s Code, tbe crime committed was manslaughter only.
Tbe facts of this deplorable tragedy as shown by tbe record may be briefly stated as follows: A controversy arose between tbe appellant, Anthony Williams, and another negro by tbe name of Lucius Blevin while they and other negroes were engaged in a crap game. Blevin testified that tbe appellant drew a pistol on bim during tbe difficulty, whereupon be (Blevin) reported tbe matter to Mr. R. L. Williams deputy sheriff there at tbe village of Areola. Tbe deputy sheriff, R. L. Williams, thereupon arrested and searched tbe appellant, and, failing to find a pistol on bim, sent for Mr. Tom Williams, another deputy sheriff, and tbe two, white deputies, accompanied by tbe said Lucius Blevin and another negro by tbe name of Mat Williams, took tbe appellant with them “over tbe creek” back of tbe gin, where it appears, from tbe testimony of tbe state’s witnesses as well as tbe testimony of the appellant, that Mr. Tom *611Williams, who was then and there acting as a deputy sheriff, proceeded to administer unto the appellant a whipping, using a belt for the purpose, while the two negroes, Blevin and Williams, held the appellant down, one on his head and one on his feet. After having hit the appellant several licks with the buckle end of the belt, which Mr. Tom Williams says was a paper belt, the belt broke; and at this juncture appellant agreed to go and get the pistol if they would let him up.
It is conclusively shown by the state’s testimony that the whipping of the appellant in the manner set out was for the purpose of making him disclose the whereabouts of his pistol. The two deputies and the two negroes let the appellant up and went with him toward the house of his brother-in-law where he had stated the pistol was located while he was being whipped upon the ground. After all of the parties had proceeded about three hundred or four hundred yards from the place where the whipping had been administered, there was some brief conversation between the parties, as it appears, regarding a shoyr that was in the village of Areola. The deputies were armed with pistols, and, as they proceeded toward the place where the appellant stated he had left the pistol, the appellant stopped and claimed that his underwear was coming down, reached his hand somewhere in his clothes, and drew a pistol and commenced to shoot, first at Mr. Tom Williams, wounding him, and then shot and killed Mr. R. L. Williams, Mr. Tom Williams then shot and wounded the appellant in three places.
The above statement of the case is based upon the testimony introduced by the state. The testimony introduced by the appellant was disbelieved and disregarded by the jury as it had the authority to do, and therefore is not to be considered as part of the proof in reviewing and discussing this appeal. The facts of the case are limited here to the proof introduced by the state.
*612Among the errors assigned by the appellant for reversal are: First, the verdict of the jury is contrary to the overwhelming weight of the evidence showing that the appellant acted in necessary self-defense to save his own life or prevent great bodily harm, the danger of which was then impending; second, that taking the testimony offered by the state as a whole, the appellant would be guilty only of manslaughter, if guilty of any offense; third, that the argument • to the jury by the prosceuting attorney with reference to mob law was erroneously permitted by the court to the injury and prejudice of the appellant’s rights at the trial.
■ The state contends that no error was committed in the trial court, and that, even though the appellant had been whipped and was unlawfully mistreated by the deceased and the others in the crowd, still appellant was guilty of murder because he shot and killed the deceased, the deputy sheriff Mr. E. L. Williams, at a time when he was in no imminent danger of losing his own life or suffering great bodily harm at the hands of the deceased or any other person, and that such killing was unnecessary and was done with malice aforethought.
The first contention of appellant that he was acting in self-defense when he shot the deceased because of the unlawful whipping he had received, and which he expected would be repeated upon him again in a few minutes, as soon as the deceased and the other had discovered the lie he had told as to the location of the pistol in order to be let up from the ground, and that he reasonably anticipated this impending danger, and that he was not required by law to wait until lie was in a situation where he could not. defend himself against such treatment, is, I think, untenable because the question of impending danger at the time of the shooting by the appellant was one for the determination .of the jury, and the jury decided this issue against the appellant.
*613The complaint of the appellant as to- the remarks and language used by the prosecuting attorney in his argument to the jury deserves notice. In .his argument the prosecuting attorney said to the jury:
“Be it said to the eternal' credit of the good citizens of Areola that they permitted this defendant to have a fair trial here in a court of justice, rather than take their vengeancé at the hands of an angry 'mob. ’ ’
I disapprove of this character of argument to the jury, and wish to respectfully announce again that prosecuting attorneys should refrain from referring to mobs or mob law in the trial court of a human being in a court of justice. The inferences calculated to be drawn from such comment by prosecuting attorneys are likely to be prejudicial to the rights of the accused in securing a fair and impartial trial of his case. I think it was error in the court to permit the prosecuting xattorney to use the language complained of in the argument of the case before the jury. However, it is unnecessary to discuss Whether or not this error would cause á reversal if there was no other reversible error in the case.
The point advanced by counsel for appellant that the evidence introduced by the state does not warrant a conviction of murder, but at best would only justify a conviction of manslaugher, is based principally upon pur statutes, sections 1044 and 1237, Code of 1906, sections 772 and 967, Hemingway’s Code, which reads as follows:
“Sec. 1044. If any person assault and beat another with a cowhide, whip, or stick, having at the time in his possession a pistol or other deadly weapon, with intent to intimidate the person assaulted, and prevent him from defending himself, he shall, on conviction, be imprisoned in the penitentiary not longer than ten years.”
‘ ‘ Sec. 1237. Every person who shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or to do any unlawful act, *614or after such attempt shall have failed, shall he guilty of manslaughter. ’ ’
The case presented by the state, and as shown particularly by the testimony of Mr. Tom Williams, one of the deputies who was shot by the appellant, substantially shows that the two armed deputies, one of whom was killed, together with the two negro men, searched the appellant to find his pistol, and, failing in this, they then took him across “the creek,” and while, the two negro men held him down one of the deputies proceeded to whip him for the purpose of making him' tell what he had done with the pistol. In order to he relieved ffom the pain of this unlawful chastisement, the appellant told the officers a lie as to where the pistol was located and offered to go with them to get it. They let him up and proceeded with him under unlawful duress in the mission of getting the pistol, and before they reached the place to which they had started the shooting took place and one of the deputies, Mr. Robert Williams, was killed.
The defendant testified that he was kicked in the face, whipped with the strap, and beat with • a pistol. The jury did not believe him; consequently, I discard his statement as to those things. But I do know from this record as testified to by the state’s witnesses that these two deputies, without any warrant for arrest or seizure and search, arrested the appellant, searched him and proceeded to extort from him by corporal punishment the whereabouts of the pistol to be used as incriminating evidence against him. The appellant made no resistance to the arrest or search. The deputies, acting under the badge of the law, did not then take the prisoner to jail or proceed to charge him in an orderly way with violation of the law, but proceeded and continued to carry out the assault and unlawful mission of compelling the disclosure" of the weapon. It was the duty of these officers to not only refrain from subjecting *615their prisoner to violence, but it was their legal and moral duty to protect the - appellant while in their custody front such unlawful assault. They failed not only in their duty, but this record shows that they actually participated in the unlawful violence to their prisoner. With reference to the unlawful assault and whipping of appellant, the Attorney0 General says in his brief that: “It may perhaps be an effective method to acquire information, but at the same time it must receive the condemnation of the courts of law and justice.”
That these officers were in danger from the concealed pistol in the clothes of the appellant is quite true, but it must be remembered that the perilous situation was brought' about. entirely by the deceased and his ■ associates. The conduct and proceedings of the Two white deputies and their two negro assistants were unlawful from the beginning of the whipping until the time of the beginning of the whipping until °the time of the fatal shooting. Therefore I think the case comes within section 1237 above referred to, and that the contention made by the appellant that this homicide can only be manslaughter is well taken and should be sustained.
It is urged by the state that the question as to whether or not the appellant was guilty of murder was a question property submitted for the determination of the jury; that it was a question of fact as to whether the appellant shot the deceased with malice aforethought at a time when unnecessary to do so, and after an interval of cooling time between the whipping and the shooting in which the appellant fornied the premeditated design to kill the deceased. I think this contention by the state is unsound, in view of the statute and the uncontroverted facts of the case. Under, section 1237, the killing is declared to be manslaughter if unnecessarily done while resisting the attempt to do an unlawful act dr immediately after such attempt had failed. The appellant fired the fatal shot in this case while the de*616ceased was still in the actual commission of the unlawful act commenced by the unlawful assault and whipping, and continued by compelling appellant to go with the parties and produce the self-incriminating pistol. If the attempt or commission of the unlawful act by the deceased had failed or had been abandoned, and any considerable length of time had elapsed thereafter before the killing occurred, then in that case the jury, and not the court, should determine the question of whether the killing was done with malice aforethought. But where, as in this case, the attempt and actual commission of the unlawful act by the deceased was resisted by the slayer, without actual malice previously formed, and such resistance resulted in the death of such offending' person, it is only manslaughter under the statute, and was a matter of law for the court to pass upon as to malice and not a question of fact for the jury. Long v. State, 52 Miss. 23.
The appellant, it appears from this whole record, had no malice or" ill feeling toward the deceased prior to the whipping. They were strangers to each other, and the motive for the shooting was the unlawful treatment imposed upon appellant which continued in -connection with and as part and parcel of the unlawful assault and whipping by the deceased, until the fatal shot was fired. The provocation was sufficient, as a matter of law and facts, to negative an inference of previous malice on the part of • appellant. Evidently the appellant was merely resisting the unlawful acts of the deceased in an effort to free himself from the illegal imposition and further prospective bodily punishment. If he had shot and killed the deceased at the time he was being whipped on the ground, no one would hardly contend it was murder; but it appears that he did not shoot at that time, as he was overpowered and covered by his assailants but he did resist in the only effective manner apparent to him as soon thereafter as possible.! He made no *617resistance to Ms search by the officers. He was whipped solely because he refused to furnish the incriminating evidence against himself. The deceased and his associates did not abandon their unlawful purpose after they had whipped appellant, but continued to pursue it by further intimidating and forcing appellant to go with them for the pistol. While thus engaged in this unlawful mission, the deceased was killed. There was no interval of time between the whipping and ' shooting in which the. hot blood caused by the unlawful provocation could cool. The walk from the place of the whipping to the place of the shooting occupied but a few minutes, and, regardless of what was said about “a show in Areola,” the heat of passion and anger was still in the breast of appellant from the whipping and continued unlawful treatment. Under these facts and circumstances, I think we would be warranted in holding that as a matter of law the killing was no more than manslaughter.
In Long v. State, 52 Miss. 23, in considering the intent and purpose of. section 1237, the court, speaking through Justic Citalmbes, said:
“We must think that the ‘unlawful act’ spoken of means a crime or misdemeanor. The language is ‘to commit a felony, or to do some other unlawful act. ’ The unlawful act, we think, must be of a criminal nature, even though inferior to felony. We think, further, that the killing must take place either during the actual resistance to the unlawful act, or immediately following its defeat and abandonment. If it occurred after the lapse of any considerable period, it would seem im-' possible to divest it of the elements of malice. Thus construed, the statute amounts to this: If I see another engaged in the commission of an offense against the criminal laws and I resist its accomplishment, and in such resistance slay the person so engaged, my crime will be manslaughter and not murder, even though the act of killing was unnecessary to the defeat of his act; *618and the same result will follow- where the killing ensues instantly after the abandonment by him of his attempt. Because I was engaged, or had just been engaged, in-resisting the doing, by him, of an unlawful act, the law will, to some extent, throw the mantle of charity over the necessary slaughter committéd by me, by reducing my offense from murder to manslaughter. It amounts to a legal imputation to heat of blood for my benefit, whether in point of fact the jury should believe that there was such heat or not.
“The party slaving, however, cannot take shelter under it if the jury should be of opinion that there was actual malice. The killing must have occurred bona fide in the resistance to the unlawful act; or immediately after its defeat, and must have grown out of the commission, or the attempt to commit the act, and not out of any previous ill will, nor any personal grudge then and there engendered. ’ ’
I think the case at bar comes within the intent and purpose of section 1237, Code of 1906. It means that “a legal imputation of heat of blood” is to be indulged in favor of the slayer, where it clearly appears that he did the killing while resisting the commission of the unlawful act, and that the unnecessary slaughter was not committed by him with previous malice or after a considerable time had elapsed between the commission of the unlawful act and the time when the fatal shot was fired. There was no interval of time here in which the slayer might reflect and cool, but the unfortunate killing was done while the unlawful act was actually being committed by'the deceased. It was undoubtedly one and the same unlawful transaction from the time of the whipping until the time of the shooting, which was but a few minutes thereafter. There was no abandonment of the commission of the unlawful act by the deceased. If the appellant had beén released after he was whipped, and any considerable time had elapsed, and he had then *619killed the deceased, the jury would he warranted in finding a verdict of murder because there would have been an interval of cooling time in which the malice aforethought could have been formed. But the killing here was done during the commission and continuance of the unlawful act of the deceased.
The staute, section 1237, Code of 1906 (section 967, Hemingway’s Code), necessarily implies an intentional killing, otherwise it means nothing; a proposed but unnecessary killing, a killing which but for the statute would be murder; and, since malice is a necessary ingredient of murder, to hold that if the homicide was malicious the satute does not apply would be to leave no field for its operation. If the killing was without malice, it would not be murder, and the statute would not be needed; if the existence of malice excludes its operation, it is repealed by construction. True, one cannot take refuge behind its provisions to wreak a personal pre-existing malice; nor lie in wait, as in the Brown Case, to execute a formed purpose to kill. But when, as here, it is manifest that the intention to kill was formed because of the criminal act of the deceased, in repelling that act the offense, which but for the statute would be murder, is by its plain meaning reduced to manslaughter. Malice is not predicable under the facts of the case before us. Beasley v. State, 64 Miss. 522, 8 So. 234; State v. Hill, 20 N. C. 629, 34 Am. Dec. 396; Cryer v. State, 71 Miss. 467, 14 So. 261; Ayres v. State, 60 Miss. 709.
A close examination of the authorities will disclose that, this opinion is not in conflict with the rule as laid down in any of the cases.
I shall not take the time to discuss the distinction between the holding in' the case at bar and the decisions cited as supporting the contrary view; but I may call attention to what must be obvious, that in the Brown Case, 98 Miss. 786, 54 So. 305, 34 L. R. A. (N. S.) 811, *620from the facts there shown, clearly a previous malice or prior premeditated design existed on the part of the slayer, who had not only threatened to commit the homicide, but who had armed himself with a deadly weapon' and lay in ambush for the purpose of doing the killing’. This Brown Case seems to hold/also (which by the way was a decision of the question of murder or manslaughter not in the appeal because the jury had acquitted of'the murder and found the appellant guilty of manslaughter) that: “Malice essential to a conviction of murder may be ascertained from previous threats and measures taken in preparation, and, too, may arise suddenly and he implied from circumstances as from the intentional use0,at the outset of a deadly weapon.”
But when the Brown Case is read and digested, it plainly appears that there was proof in the case that the malice aforethought was formed long previous to the time of the' killing and some time before the deceased was in the commission of the unlawful act, and that the malice may have been implied as existing prior to the fatal shooting, that is, that the malice aforethought could have arisen under- the facts there immediately before the shooting took place. But it will he ohservéd that in the Brown Case and in the Long Case, 52 Miss. 23, and the other cases cited, there was an interval of time, either before the commission of the unlawful'act by the deceased or immediately thereafter, in which the slayer had sufficient cooling time, or . was already cool, to .deliberately design and execute the ki.ll-ing with malice aforethought; but in the instant case the facts are essentially different, in this, that from the time the unlawful assault of the slayer was commenced and continued by the deceased until the time of the fatal shot, the flayer, having had no previous ill will or malice against the deceased, did not have any interval of considerable time in which to form premeditation and malice against the deceased before the shooting *621took place; it being one continnons unlawful transaction. Therefore we may say that it appears conclusively to us that under the facts of the instant case, the conviction, either under, section 1237, Code of 1906, section 967, Hemingway’s Code, or the common law and statutes on manslaughter, could have been for no more than manslaughter, as a matter of fact and law. Beasley v. State, 64 Miss. 518, 8 So. 234; Kelly v. State, 68 Miss. 344, 8 So. 745; Long v. State, 52 Miss. 40.
SteveNS and Ethridge,, JJ., concur in the above opinion.