Volume 213 — Mississippi Reports

<bold>1. Homicide — killing to prevent injury to another, when not</bold> <bold>justifiable.</bold> The accused, who was present and saw the deceased slap a girl two or three times and hit her with his fist, had a right to intervene<page_number>Page 117</page_number> for the purpose of preventing further injury to the girl, but he had no right to shoot the deceased, when the actions of the deceased immediately prior to the shooting were not such as to justify the belief that the deceased intended to take the life of the girl or of the accused or to do great bodily harm to either of them. <bold>2. Homicide — killing to prevent battery on another with hands</bold> <bold>and fist, not justifiable.</bold> Simple assaults with the hand or fist are misdemeanors only and usually indicate that the offender intends no more than to inflict a beating but not great bodily harm, wherefore an instruction given for the State that the great bodily harm sufficient to justify a killing does not mean mere injuries inflicted by hands and fist correctly stated the law, when taken and considered together with other granted instructions which told the jury that if they believed from the evidence that the accused had reasonable ground to apprehend a design on the part of the deceased to commit a felony or do some great personal injury to the person being assaulted and that there was imminent danger of such design being accomplished, he had a right to kill the deceased in the defense of the person so assaulted. Headnotes as approved by Kyle, J.

<bold>1. Appeal — damages and cost against unsuccessful appellant.</bold> A decree in an annulment of marriage suit awarding to putative wife certain property as her equitable share of the property accumulated by the parties during the time they were living together as man and wife was not a decree in partition and its affirmance carried the right to the five percent damages against the unsuccessful appellant. <bold>2. Appeal — damages and cost.</bold> It is not necessary that reference to the damages and cost to be awarded against an appellant shall be made in the opinion affirming the decree or judgment, but it is mandatory under the statute that the award shall be carried into the judgment of affirmance. <bold>3. Appeal — power to correct judgment rendered at a former</bold> <bold>term.</bold> It is within the power of the Supreme Court to correct an error in the record of the judgment rendered at a former term so as to include damages on affirmance. <bold>4. Appeal — damages — value of property to be ascertained.</bold> Where the value of the property upon which the five percent damages is to be awarded upon affirmance is not shown in the record, the Supreme Court will enter judgment allowing the damages generally and will remand to the trial court for the ascertainment of the value upon which the specific calculation is to be made. <bold>5. Appeal — damages to property destroyed while in possession of</bold> <bold>appellant under appeal bond.</bold> A motion to correct judgment so as to allow damages to appellant on account of residence awarded to her but destroyed by fire while in appellant's possession under appeal bond cannot be entertained by Supreme Court when there is nothing in appellate record to show the value of the property or the nature and extent of the damage to it, but the motion will be overruled<page_number>Page 190</page_number> without prejudice to the right of appellee to take such action in the lower court or by an original action or suit against appellant and the sureties on his supersedeas appeal bond as she may deem proper. Headnotes as approved by Kyle, J.

<bold>1. Minerals — lease for mining — forfeiture — estoppel —</bold> <bold>acceptance of regular monthly royalties.</bold> Where the lessor in a sand and gravel lease accepted regular monthly royalties from lessee with full knowledge of the nature and extent of the operations by lessee, he is estopped to claim a forfeiture on the assertion that the nature and extent of the operations, of which he might otherwise complain, are not in accordance with the lease. <bold>2. Minerals — lease for mining — monthly royalties — payments</bold> <bold>for privilege of mining.</bold> The contention that the acceptance of the monthly royalties mentioned in the foregoing headnote should be taken as payment for the lessor's minerals is not well founded, since they were given not for the minerals themselves but for the privilege<page_number>Page 291</page_number> to mine and to market the minerals so produced, the value of which was greatly in excess of the royalty payments. Headnotes as approved by Alexander, J.

<bold>1. Intoxicating liquors — injunctions.</bold> Where the defendant had been forbidden by injunction to keep intoxicating liquor on his premises, and thereafter a search was made by the sheriff and a large quantity of such liquor was found, his defense to a proceeding in contempt that the injunction restrained him from removing the liquor is not sustained when neither the fiat for the injunction nor the injunction itself contained any such prohibition. <bold>2. Intoxicating liquors — injunction — outhouse.</bold> Where the defendant had been forbidden by injunction to keep intoxicating liquor on his described place and subsequently a large quantity of such liquor was found in defendant's garage about 100 yards from his store building, the defense to a contempt proceeding that the writ of injunction contained no provision about liquor in the outhouses, is not sustained, when the injunction did identify the premises in question, and the outhouses were identified and included in the fiat. Headnotes as approved by Lee, J.

<bold>1. Deeds — delivery — presumption from recordation.</bold> An undelivered deed is ineffectual to pass title, and the presumption of delivery arising from the recording of the instrument disappears when it is established by the evidence that the deed was never out of the possession of the purported grantor except for the time it was placed by him in the hands of the clerk solely for recording, immediately after which it was returned by the clerk to the grantor who retained it. Headnote as approved by Hall, J.

<bold>1. Trial — instructions — sales — oral contract.</bold> It is error to grant an instruction which is not based upon evidence, and a material part of an instruction based upon the theory that a contract of sale had been modified by a subsequent oral agreement to the effect that delivery would be made in another manner and at a different plant when there is no evidence to support such part renders the instruction erroneous. <bold>2. Trial — instructions — sales.</bold> The error in the instruction as outlined in the foregoing headnote is not to be held harmless when, as stated, there was no evidence<page_number>Page 699</page_number> to support the objectionable part and the evidence on the other features of the case was sufficient to support a contrary verdict. Headnotes as approved by Arrington, J.