
    Harvey Staten, Plaintiff in Error, v. The State of Mississippi, Defendant in Error.
    1. Criminal trial : rights or defendant as to charge or court. — A defendant on his trial for a felony, is entitled to have the rules of law, appliéable to his case, distinctly declared by the court to the jury, and if this be not done, and the jury be in danger of being misled thereby, it will be error.
    2. Homicide : justifiable, when. — A p'er&on. anayjustifjitbly slay another, if he have reasonable ground to apprehend a design onttó part of the latter, to commit a felony on, or do some great personal injury to his wife, and there shall be imminent danger of such design being accomplished; and this right of defence extends not only to the life of the wife, but to her chastity.
    3. Same. — A defendant charged with a felonious homicide may justify the killing, not only where there is real or apparent danger to his own, or to his wife’s life, but also where he has reasonable ground to apprehend a design, to commit a felony on, or to do some great personal injury to the wife, and there is imminent danger of such design being accomplished; and it will be error, if the court, in defining to the jury the law of justifiable homicide, omit so to state, if there be evidence tending to show that at the time of the killing, the defendant had a right to apprehend that the deceased was about to violate his wife.
    ' IN error from tbe Circuit Court of Yalabusha county. Hon. William L. Harris, judge.
    The proceedings in the court below are sufficiently stated in the opinion of the court.
    
      Yer and Ruóles, for plaintiff in error.
    The plaintiff in error was convicted in the Circuit Court of Yal-abusha county, of manslaughter in the second degree, upon an indictment purporting to be found in the Circuit Court of Talla-hatchie county; it being alleged that the venue was changed from Tallahatchie county. The judgment must be reversed for several errors:—
    1. The record contains no evidence, that the Circuit Court of Yalabusha county had jurisdiction of the cause. It is true, it is alleged that the venue was changed fronaTallahatehie county, but the record contains no legal evidence of any order changing the venue in said cause, nor any legal evidence that any bill of indictment, or other proceedings, were had in the Circuit Court of Tal-lahatchie county, for the offence of which the plaintiff in error was convicted.
    It is true, there will be found in the transcript, copies of certain orders and proceedings, purporting to have been made and had in the Circuit Court of Tallahatchie county, which the clerk of the Circuit Court of Yalabusha recites to have been delivered to him by the clerk of Tallahatchie.
    These loose memoranda are not certified by the clerk of Talla-hatchie county to be copies of the orders and proceedings had in that court. They have no seal of the court attached to them, and do not even purport to be copies of all the orders and proceedings in the Circuit Court of Tallahatchie county.
    2. This court, therefore, cannot regard them as evidence for any purpose, nor could the Circuit Court of Yalabusha county. The court in Yalabusha county could only have jurisdiction of this cause by a change of venue, regularly made. This fact the record must show affirmatively. 1 Stark. Ev. 189; Dyson v. The State, 4 Cushm. 383; 1 lb. 502; 4 lb. 176.
    3. The court erred in giving the seventh instruction, which is in these words: “ If the jury believe, from the evidence, that the defendant killed the deceased at a time when there was no danger from the deceased to the defendant’s family, or sister, and upon revenge for a supposed insult to his family, in the heat of blood, this is at least manslaughter.”
    This charge is error, because the defendant was entitled to an acquittal, if he had reasonable ground to apprehend a design on the part of the deceased to commit a felony, or to do some great personal injury to himself, or some member of his family; and there was imminent danger of such design being accomplished. Hutch. Code, 957.
    Under the instruction, as given by the court — although the jury may have believed the defendant had reasonable ground to apprehend, on the part of the deceased, a design to commit a felony, or to do some great personal injury to himself or family — they could not have acquitted him: the charge was therefore erroneous. 
      Dyson v. State, 4 Cushm. 383; McDaniel v. State, 8 S. & M. 417.
    4. The court erred in compelling ’ the prisoner to go to trial, ■without giving him a copy of the venire. He was indicted for murder, and on a previous trial had been found guilty of manslaughter ; but, as the indictment for murder was still in existence against him, he was put upon his trial for murder; and the previous acquittal could only avail him by way of defence — by plea or evidence given of the former acquittal. He was, in fact, on trial for murder, and might have been, and'would have been convicted of it, if the facts had warranted a conviction, unless he showed, by way of defence, the former acquittal.
    5. The court erred in giving the first instruction, because it assumes, as a fact proven, that the defendant was guilty of the homicide .charged, and that this homicide was committed with malice aforethought.
    6. The third and sixth instructions should not have been given, unless the court had also charged the jury in reference to the different degrees of manslaughter, as defined by our statute; there being no crime of manslaughter, as known at the common law, in this state.
    7. The tenth instruction was erroneous. It is obnoxious to the same objection as the seventh instruction; and, by the use of the word “apparent,” was calculated to mislead the jury.
    8. A new trial ought to have been granted, because the killing, at most, could not exceed manslaughter in the third degree. Hutch. Code, 958.
    To constitute manslaughter in the second degree, the killing must be done “ in a cruel and unusual manner.”
    
    Manslaughter in the third degree, is defined precisely as manslaughter in the second degree, except that the words “ dangerous weapon” are substituted for “in a cruel and unusual manner.” In this case, there is no pretence that the killing was done in “ a cruel and unusual manner.” On the contrary, the circumstances as proved, show most clearly, in our opinion, a case of excusable homicide; and if manslaughter can be predicated of it at all, it surely cannot be held to be in a degree higher than manslaughter in the second degree.
    _F. Anderson, senior, same side,
    filed an elaborate brief, and argued the cause orally.
    
      D. 0. Gflenn, attorney general,
    for the state, argued the cause orally; but no memoranda or brief of his argument have come to the possession of the reporter.
   Handy, J.,

delivered the opinion of the court.

This was an indictment found in the Tallahatchie Circuit Court against the plaintiff in error, for murder. At the instance of the accused, the venue was changed to Yalabusha Circuit Court, where he was tried, and found guilty of manslaughter in the second degree, and judgment rendered. The case was thereupon brought to this court and the judgment reversed, and a new trial awarded. Upon this trial a verdict was again found against the plaintiff in error, of guilty of manslaughter in the second degree, and judgment rendered thereon. To this judgment, the present writ of error is prosecuted.

Several questions have been presented in the argument by the counsel for the plaintiff in error, as grounds of error in the proceedings below. These questions are important, and not free from difficulty; and in all probability, the two members of the court sitting in the cause, would not agree in opinion upon them, and no decision would be made upon them. We, therefore, deem it proper to present no views in relation to those points, but will proceed to consider a material point, which is decisive of the case as it is now presented.

The court instructed the jury, at the instance of the state, as follows:—

If the jury believe, from the evidence, that the defendant killed the deceased at a time when there was no danger from the deceased to the defendant’s family, or sister, and upon revenge for a supposed insult to his family, in the heat of blood, this is at least manslaughter.

If the jury believe, from the evidence, that Hamblin was unarmed at the time the defendant killed him, and there was no real or apparent danger from him at the time of killing, either to Staten himself, or to his wife, or sister, or family, then the killing is neither justifiable nor excusable.

Without a particular detail of the evidence, and of the circumstances under which the killing was done, it is sufficient for the purpose of testing the propriety of these instructions, to observe, that there was testimony tending to show that the deceased had entered the bed-chamber in which the wife of the accused, (she being sick at the time,) and his sister were asleep, and after midnight ; that he aroused the sister, by putting his hand on her; that she told him to go away, and that he went under Mrs. Staten’s bed, which was in the same room; that after a short time, she went into the room where Staten was sleeping and awoke him, and told him that the deceased was in his wife’s room, and he arose and went immediately into his wife’s room, and a noise like the falling over chairs was heard; and that shortly afterwards the deceased was seen bleeding, and lived but a short time, being stabbed in several places. There is also evidence tending to show that the deceased took supper that night at Staten’s house, and was there after supper, and in the room where Staten’s wife was, in company with Staten; but that Staten supposed he had gone home, when he was informed by his sister that he was in his wife’s room.

The statute provides that homicide is justifiable, “when committed in the lawful defence of a person, or of his or her husband, wife, parent, child, master, mistress, or servant, when there shall be a 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.” Hutch. Code, 957.

The instructions above stated do not declare the rule in conformity to this statute. If the accused had a “reasonable ground to apprehend a design to commit a felony, or to do some great personal injury to his wife, and there was imminent danger of the design being accomplished,” he was justifiable in the killing. But the instructions do not give the accused the benefit of the appre-tension of clanger, in tbe particulars specified in tbe statute; and tbe jury were left free to put whatever construction they deemed proper upon tbe general terms, “ danger to himself or Ms wife,’’ &c. They might have supposed that it required danger to life, in order to justify the killing, and hence concluded that, as there was no evidence of such danger, the killing was unjustifiable; whereas, the statute distinctly recognizes a just aprehensión of immediate danger of the commission of a felony, or of some great personal injury or bodily harm, as a justification. The plaintiff in error was entitled to have the rule thus distinctly declared to the jury; and for the error in this respect in the instructions, tbe judgment is reversed, and the cause remanded, and a new trial awarded.

FishbR, J., having been of counsel in the court below, took no part in the decision of the cause.  