
    Brown v. State.
    (Division A.
    Nov. 6, 1939.)
    [191 So. 818.
    No. 33774.]
    
      Hilton, Berry & Kendall, of Jackson, for appellant.
    W. D. Conn, Jr., Assistant Attorney-General, for the State.
    
      Argued orally by Ovie L. Berry, for appellant.
   Smith, C. J.,

delivered the opinion of the court.

The appellant cut Harvey Hilton with a pocket-knife and was convicted of an attempt to kill and murder him. According to the evidence for the State, the appellant assaulted and cut Hilton when Hilton was unarmed and had done nothing whatever to provoke the assault. According to the evidence for the appellant, Hilton assaulted him and attempted to cut him when he had done nothing whatever to provoke the assault, and that in cutting’ Hilton he acted solely in self-defense. There was no evidence or inference therefrom that the appellant had armed himself with the knife for the purpose of provoking a difficulty with Hilton, and using it, if necessary, to overcome Hilton.

The court instructed the jury in substance that if the appellant armed himself with the knife with the intention of provoking a difficulty with Hilton, and using it if necessary to overcome Hilton, and while so armed provoked a difficulty with Hilton, and cut him, that he could not plead self-defense. There being no evidence to support this instruction, it should not have been given.

Reversed and remanded.  