Norton, J.
The defendant was indicted in the circuit court of Dunklin county for- murder in the first .degree, in shooting and killing one Solomon Kissinger in .May, 1882, He was put upon his trial at the May •term, 1883, of said court, and convicted of murder in the second degree, and his punishment assessed at ten years .imprisonment in the penitentiary. Prom this judgment defendant appeals, and the action of the court in receiving improper evidence and in giving improper instructions, is assigned for error.
On the trial, a witness. was allowed to give in evidence the statements Of the deceased as dying declarations. This evidence was objected to on the ground that ■no proper foundationhad been laid for their introduction. The witness who detailed these statements testified that about eight hours before the death of deceased he .told witness that “he thought he would die,” and then made the statements given in evidence. If deceased apprehended death, and had given up all hope of living, as his words indicated he did, the evidence offered was properly received, if restricted to the limitations imposed upon such evidence.- McMillen v. State, 13 Mo. 30; State v. McCannon, 51 Mo. 160. Such declarations are, however, to -be limited and restricted to the identification of the prisoner and deceased, and to the act of killing, and all the circumstances immediately attending the said act and forming a part of the res gestae. State v. Draper, 65 Mo. 335.
It is insisted- that the declarations in this case were not restricted to these limits and that so much of them were improperly admitted as gave the reason for deceased following the defendant when leaving the room, viz.: “That he thought he was about to.draw something from his pocket, a knife or pistol, and that he .followed him, so that if he did draw a knife or pistol, that he could batch it or knock it out of his hand before he could hurt him.” If deceased had been a witness on the stand he would have been required to state, not his. thoughts or opinions, but facts inducing the belief that deceased was about to draw a pistol or knife, and so much of said statement as goes to a mere expression of belief or opinion, under the ruling in the case of the State v. Vansant, 80 Mo. 67, was improperly received.
It is, also, objected that the court erred in giving an instruction telling the jury that if “the defendant voluntarily and of his own free will and inclination entered into the difficulty, then there is no self-defence in the case,” etc. While this instruction asserts a correct principle of law, it was error to give it for the reason that, after a careful examination of the record, we find that there was no evidence, either tfiat defendant brought on the difficulty, of voluntarily and of his own free will, •entered into it; but on the contrary, the evidence was that he avoided the difficulty, begged to be let alone, saying he was sick and unable to fight deceased, and was attempting to get away from deceased, who, just before the fatal encounter, caught defendant, choked him, “and churned his head against the house and struck him.” The instruction was misleading, and there being no evidence on which to base it, was calculated to prejudice the defendant before the jury.
The instruction given by the court, defining manslaughter in the fourth degree, is confused in blending in the same instruction that grade of homicide as defined in sections 1249 and 1250, Revised Statutes, and as the •cause is to remanded for re-trial, for the errors noted, and as defendant, under the evidence, is entitled to an instruction as to manslaughter in the fourth degree, the court should give, in separate instructions, the definition of that offence as set forth in said sections.
Judgment reversed and cause remanded.
All concur.