delivered the opinion of the court.
At the March, 1924, term of the circuit court of Lee county the appellant was indicted, tried, and convicted *138upon g charge of murder, and was sentenced to suffer the death penalty, and from this conviction and sentence he prosecuted this appeal.
The material testimony offered by the state was substantially as follows:
The deceased, Guy M. Morgan, and Clyde Crider, two young white men, went into the negro section of the city of Tupelo for the purpose of collecting the purchase price of a load of wood which had been previously sold on credit and delivered to a negro. When they reached the house where the wood had been delivered, they entered the house, but found no one there except a -negro boy and girl. They inquired for the negro who owed for the wood, and were informed that she was away from home. About that time the appellant came into the room, and the deceased asked him if he was not the one who owed for the wood. The appellant denied that he owed for the wood, and proceeded into a back room. The deceased and his companion then walked out into the yard, and almost immediately the appellant came. out. The deceased then said to the appellant:
“Well, I come after my money to-day, and I have got to have it. I am going' to the corner, and you go and see if you can see anything of that negro woman that owes for the wood.”
The appellant then started down the street, and the deceased asked him where he was going, and he .stated that he was going to see if he could find the woman. The deceased and the witness, Crider, then went in the opposite direction to the corner of the street, where they remained a few minutes. While there a negro who lived nearby told them that the appellant was the one who owed for the wood. They then turned and proceeded back toward the house that they had first approached. The witness then describes what transpired in the following language:
“Guy and me walked across the street, and Clinton come up and met us, and Guy says, ‘Ain’t you the one *139that owés for the wood?’ and he said, ‘No, God damn it, I told you once,’ and Guy said, ‘Doh’t get so hot about it,’ and he said, ‘I’m getting tired of this God damn white trash running over me,’ and by that time he was in the middle of the street, and he said, ‘Stop! you sons of bitches,’ and drawed his gun and shot him down right there. ’ ’
The witness testified that he then stooped over the wounded man to help Mm up, and the appellant threw the gun on him and .said, “I might as well shoot you and be done with it,” but / that a woman standing near exclaimed, “Don’t do that,” and thereupon the appellant turned and ran away. On cross-examination this witness testified that while the appellant was cursing them he was “walking sorter sideways and backing,” and that the deceased and the witness started towards the appellant, that when the shot was fired the appellant had backed out into the middle of the street, and the witness and the deceased were then about ten or twelve feet from the appellant, and that they had nothing in their hands. There was also testimonjr that the officers trailed the appellant into a swamp, and that when he was discovered all of Ms body except the head was submerged in water.
The appellant testified in his own behalf, and his version of the affair up to the point of the second and last meeting of the parties was about the same as that of the witness, Crider. He gave his version of the colloquy between him and the deceased at the time of this second meeting, and explained the killing in the following, language:
“He said, ‘Don’t give me no smart talk about it,’ and' he stopped me again, and I said I didn’t owe him for no wood, and he said, ‘You are a damn lie,’ and I told Mm he was another, and he started on me, and I told him not to walk up on me, and he run his hand in Ms pocket and he said, ‘I’ll shoot your brains out,’ and I up and shot and turned around and walked off.”
*140He further testified that he shot “because he was going to shoot me.” On cross-examination he admitted that he did not have a pistol at the time he first saw these young men in the house, but stated that he went to a house about a block away and borrowed the pistol, and then returned to the place where he met the deceased the second time.
At the conclusion of the testimony the state secured one instruction, submitting to the jury the issue of murder; while the appellant secured several instructions, one of which authorized the jury to return a verdict of manslaughter if they believed from the evidence that the fatal shot was fired in the heat of passion without malice aforethought, hut that same was unjustifiably fired.
The only ground for reversal presented in the written assignment of error and in the brief of counsel is that the issue of -whether the defendant was guilty or murder should not have been submitted to the jury, and that no' verdict for a higher crime than manslaughter should be allowed to stand.
We have set out at length the substance of the testimony in the record, and, in passing on the question of the sufficiency of this testimony to sustain a conviction of murder, we do not think any detailed discussion of this testimony is necessary. According to the testimony of the defendant, as well as that for the state, nothing occurred during the first meeting and conversation between the defendant and the deceased that would suggest or justify the conclusion that the defendant needed a weapon for self-defense or any other purpose; but he admitted that after this meeting, he immediately went away and borrowed a pistol, and, having armed himself with this deadly weapon, he returned to the place where he had left the deceased and his companion, and we think that fact, in connection with the testimony of the witness, Crider, as to the acts, conduct, and demonstrations of *141the defendant at the time of the second meeting of the parties, was sufficient to sustain the conviction of murder, and that there was no error in submitting this issue to the jury.
The court granted the state an instruction defining murder as “the killing of a human being without authority of law, by any means, or in any manner, when done with the deliberate design to effect the death of the person killed, and not in necessary self-defense,” and in the oral argument before this court counsel for the appellant challenged the correctness of this instruction; the contention being that the phrase, “not in necessary self-defense,” excludes the doctrine of apparent necessity or danger, and limits the right of self-defense to cases'of actual or real danger and necessity. We do not think there is any merit in this contention. The phrase, “necessary self-defense,” does not exclude the consideration of apparent necessity, but as used in our statutes and as generally understood it includes every case “where there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished,” and it has been said by this court that in such case one may justifiably slay another, “if he acts conscientiously upon reasonable fears, founded on present overt acts, to all appearances hostile, although there be really no actual danger at the time.” Bang v. State, 60 Miss. 571.
The judgment of the court below will therefore be affirmed, and Friday, January 9, 1925, is fixed as the date for the execution of the sentence.
Affirmed.
Anderson and Holden, JJ., dissent.