Cooper v. State

Citations

• 80 Miss. 175

Syllabus

<p>1. Criminal XiAw. Instruction. Evidence.</p> <p>An instruction not based on evidence is fatally erroneous, if by any 'means it might mislead the jury. Oliver v. State, 39 Miss., 526; Spradley v. State, ante, p. 82, cited.</p> <p>2. Same. Homicide. Self-defense. Provocation of difficulty. Deadly weapon.</p> <p>When the evidence on a murder-trial is conflicting as to whether, or not, the killing was in necessary self-defense, and does not show a settled purpose on the part of the accused to kill the de_ ceased at all events, it is error to instruct the jury to convict of murder if they believe from the evidence that the accused armed himself with a deadly weapon and provoked the difficulty with the deceased, intending to use the weapon, should its employment become necessary to overcome the deceased, although they may also believe that the killing was in self-defensé; and a conviction of manslaughter will be set aside.</p>