delivered the opinion of the court.
The appellant, Lem Ervin, was convicted in the circuit court of Carroll county of manslaughter. There are but two assignments of error necessary to consider on this appeal: First, the appellant claims that he should have had a peremptory instruction in his favor; second, that the state obtained an erroneous instruction upon manslaughter.
Upon the first proposition: The testimony for the state is to the effect that the appellant was being pursued by the deceased with an ax. That appellant stopped and in a scuffle threw the deceased down, wrenched the ax out of his lands, and while deceased was prostrate on the ground, face downward, appellant put one foot on his body and with both hands struck the deceased with the blade of the ax, cutting him to the hollow between the sixth and seventh ribs. That deceased was at once put to bed and visited by a doctor within several hours after the injury was inflicted. That he bled copiously from that time until he died and was buried, and that blood dripped from the coffin in the church at his funeral. He lived three or four days: The testimony shows that, previous to the cutting of deceased with the ax, he and appellant had both thrown bricks at each other, and that appellant had hit deceased in the stomach with a brick. The doctor who treated deceased testified that deceased died in his opinion from peritonitis and not from the ax wound; that the peritonitis could have been caused by the lick in the stomach with the brick. Upon this testimony we think it was a question of fact to be decided by *145the jury as to whether or not the ax wound or the lick with the 'brick was the cause of deceased’s death and that the peremptory instruction was correctly refused.
Second. Instruction No. 1 given for the state reads as follows:
“The court instructs the jury for the state that if you believe from the evidence beyond a. reasonable doubt that the defendant killed the deceased in the heat of passion, without malice, at a time when he was in no danger, real or apparent, of losing his life or of receiving great bodily harm at the hands of the deceased, you will find him, guilty of manslaughter, and the form of your verdict will be, ‘We, the jury, find the defendant guilty of manslaughter.’ ’ ’
It is contended by the appellant that this instruction is erroneous because it omits the phrase “without authority of law.” In the cases of Ivy v. State, 84 Miss. 264, 36 So. 265, and Rutherford v. State, 100 Miss. 832, 57 So. 224, the state obtained an erroneous definition of murder in its instructions omitting the words “without authority of law.” Any killing with the deliberate design to effect the death of the person killed, under those instructions, would be murder. These instructions are erroneous for the reason that they altogether omit the fact that a person may have the deliberate design to kill and yet be justible under the law because he kills in self-defense, or he might kill for other reasons justifiable under our laws. This is in effect the holding) in the case of Barnes v. State, 198 Miss. 621, 79 So. 815.
In the case of McNeal v. State, 115 Miss. 678, 76 So. 625, an instruction in this identical language was given. In that case it was contended by the attorney general that the omission of the words “without authority of law” could not have prejudiced the defendant’s case because his defense was “self-defense.” We held, however, in that case that the appellant was entitled.to the further defense that he had a right to kill the deceased *146to prevent Mm from committing, a felony upon some women, and that this instruction to the jury was a practical exclusion of that defense, and was therefore error. In this case, however, the only reason advanced by appellant, or that could have 'been advanced by him, for inflicting the fatal injury upon the deceased with the ax, was that his life was in real or apparent danger at the hands of the deceased at that time. By this instruction he was not prejudiced in any way in his defense. In fact, instruction No. 2 given for defendant is a concrete instruction upon the facts in this case. This instruction concludes in this manner:
“When defendant got possession of said ax and immediately struck deceased with it, and that defendant struck said blows while he was in real or apparent danger of losing his life or of suffering great bodily harm at the hands of the deceased, then the defendant had a right to protect himself with such force as he used, and the jury will acquit him. ’ ’
Tlae only authority of law in this case which would have permitted the appellant-to take the life of the deceased was embodied in these two instructions.
We might add that under the testimony of the appellant himself he struck the deceased with the ax after he had disarmed him, when deceased was on the ground practically at the mercy of appellant.
Affirmed.