delivered, the opinion of the court. ■
Martin Mott Avas convicted of the murder of one Avery McCarty and sentenced to the penitentiary for life, from Avhich judgment this appeal is prosecuted.
The testimony in the case is conflicting. Three, eyewitnesses to the homicide testified for the state. According to the testimony of the two negro eyewitnesses to the killing, the appellant and the deceased began cursing each other and appellant told deceased that he was tired of playing and that — “The next son of a bitch that hits me I am going to stick my knife in him, and I don’t give a damn who it is.”
The appellant then opened his knife and went some distance away and got a drink of water, and was standing within about fifteen or twenty feet of the deceased when the deceased said to him: “If you make another God damn track tOAvard me with that knife, I will bust your God damn brains out, and he stepped this way and Avery hit him with a cant hook.”
The deceased then dropped the cant hook according to this witness and began backing back, and the appellant continued to advance on him with the open knife. The deceased stumbled and fell on his back, and the appellant stuck the knife in him. It is estimated that the deceased retreated backwards about fifteen feet.
The testimony of the next eyewitness is in substance like that above quoted, with the exception that he stated that the deceased after falling picked up a stick of some kind, called in the record a “slab,” and struck appellant just after appellant had stuck his knife in deceased. Both of these witnesses testified that the deceased struck the appellant with the cant hook as hard as he could, and it is shown by the record that a cant hook is a dangerous weapon.
The third eyewitness, a white man, testified for the state that the appellant asked the deceased to quit goosing him and that deceased replied he would goose him all he *733pleased, and that he (appellant) would have to take it, and called him a “yellow son of a hitch;” that appellant stated that he would not, and deceased then told appellant that if he made one step toward him th.¿t he would burst his brains out with the cant hook; that the appellant took a step but not toward the deceased, and that deceased then struck the appellant with the cant hook but did not knock him down; that when the. fuss first started between these two negroes the appellant had a knife out whittling; at that time the appellant showed no signs of being mad; that, after the deceased struck appellant with the cant hook, appellant advanced on deceased in a bent position, and the deceased dropped the cant hook and picked up a “slab” (the record does not disclose the size of this “slab”) ;■ that, after the deceased had stumbled and fallen, he, struck the appellant over the head with this “slab” about the time appellant stuck his knife in the deceased; and that he further struck the appellant a second blow with the “slab.” . Only one knife wound was inflicted upon the deceased. The appellant at. once got up and ran away from the scene of the difficulty.
According to the testimony of the two first eyewitnesses for the state, the jury would have been justified in believing that the appellant was the aggressor in the difficulty, while under the testimony of the third eyewitness for the state the deceased was the aggressor. And under this testimony the deceased had not abandoned the difficulty, but .merely dropped the cant hook and at once procured another weapon to continue the fray.
No eyewitnesses to the difficulty testified for the appellant. A number of Avitnesses testified that the general reputation for peace and violence of the appellant in the community in which he lived Avas good, and that of the deceased was bad. A physician testified that he examined the wounds on the appellant and found two contused and cut places on his head. The appellant offered to prove by a witness that a day or two before the homicide the deceased, Avery McCarty, came to his home and tried to get *734a pistol from him and told him that he wanted it to shoot the appellant. The witness declined to lend the deceased the pistol, and deceased then said:
“If I cannot get one in no way at all, I will kill him before this day week if I have to knock him in the head.”
This conversation occurred on Sunday, and the killing’ occurred the following Tuesday. The state objected to the introduction of this testimony, and the objection was sustained.
Prom the testimony it will be seen that this is a very close case upon the facts. If there were no error committed in the trial, we would be inclined to let the verdict stand, though we think that, under the testimony for the state to the effect that the appellant was .perhaps the aggressor in the actual fight, the evidence would better support a verdict of manslaughter than murder. The testimony, however, is in conflict as to who was the aggressor in the difficulty, and, this being true, the uncommunicated threat made by the deceased that he would kill the appellant before the Aveek was over even if he had to knock him in the head Avas very important and material testimony to be considered by the jury in determining avIio Avas the aggressor.
This question is ably discussed in the case of Johnson v. State, 54 Miss. 430. On page 433, the court says:
“The testimony under consideration is relevant and pertinent AA'here it may aid, as a circumstance, in determining, in connection Avith other facts, Avhether the homicide is excusable or not; as when the evidence fairly raises the question AAdiich was the aggressor. There the proof that the deceased had made serious threats., shortly before the rencounter, may be considered by the jury for the purpose just indicated.”
The same doctrine is reaffirmed in the case of Johnson v. State, 66 Miss. 189, 5 So. 95. In this opinion it is said:
“Evidence of previous uncommunicated threats is admissible in cases Avhere it is doubtful who began the difficulty, as tending to solve the doubt in favor of the ac*735cused by showing- a disposition by the deceased to make the attack. . . . When evidence has been offered tending to .prove that the deceased was the aggressor, then, though there may be a conflict of testimony on the point, evidence of previous (though uncommunicated) threats is to be admitted as supporting the other evidence” — citing numerous' authorities.
For the exclusion of this testimony the case, must be reversed.
Several of the instructions granted the state are also assigned as error. Some of these instructions are inartificially drawn. In homicide cases, it is always the safest course for the state to request instructions that have been approved by this court and for as few as will clearly present the theory of the state to the jury. As has several times been stated by this court, the beaten path is ahvays the safest path for the state to pursue in requesting instructions.
Reversed and remanded.