WALKER, PRESIDING JUSTICE, FOR THE COURT:
This is an appeal from the Circuit Court of Hinds County wherein W.C.Robinson, appellant, was indicted, tried, and convicted for the January 1, 1981, murder of John Beacham. Upon conviction, Robinson was sentenced to a term of life in the custody of the Mississippi Department of Corrections. Aggrieved of his conviction and sentence, Robinson has appealed to this Court. We affirm.
On December 31, 1980, several people were present at or near the intersection of Jones and Washington Streets in Jackson for the purpose of celebrating the arrival of the new year, which usually included the discharging of firearms and fireworks into the air. Among those present were the appellant, John (Bo Diddley) Beacham (decedent), Flora Lee Alexander, Eula Mae Smith, Lawrence Bonner, Joseph Lee Thomas and John Lee White.
Appellant brought a shotgun with him and three shells from his house between 9:30 p.m. and 10:00 p.m. When he arrived at the gathering on Washington, he placed the gun behind the steps in the rear of one of the houses. An argument subsequently erupted between Flora Lee Alexander and appellant. Beacham, appellant's first cousin, then began to argue with appellant, apparently siding with Flora Lee Alexander, and subsequently accused appellant of telling his (Beacham's) girl friend about some relationships Beacham had had with other women. Appellant denied he had argued with anyone or that he was irritated with Beacham.
Following the argument, appellant left. When midnight approached, some of the people in the area began firing their guns. Joseph Thames fired his gun when Beacham walked up to his residence at 1725 Washington Street. Thames' gun apparently jammed, so Beacham held the muzzle of the weapon while Thames tried to unjam it. The barrel was pointed upward.
In the meantime, appellant returned to the scene with his shotgun. When he came around the side of one of the houses, John Lee White saw appellant and told him there was not any sense in that. Appellant told White not to say a word and pointed the weapon at him. Appellant then stepped out and yelled, "Bo Diddley, I got a surprise for you." Appellant then discharged his weapon, striking both Thames and Beacham. None of the witnesses for the state saw Beacham point a weapon at appellant or make any threatening move in his direction. Beacham died shortly thereafter, bleeding to death from multiple wounds.
Appellant claimed he was not mad at Beacham nor did he intend to kill Beacham. According to appellant, he walked from between the houses with his gun broken down. Beacham then grabbed Thames' shotgun, pumped it one time and said he (Beacham) was going to kill appellant. In fear for his life, appellant shot Beacham according to his version.
The case was submitted to the jury who returned a verdict of guilty as charged, thereby rejecting appellant's defense of self-defense. He was thereafter sentenced to serve a term of life in the custody of the Mississippi Department of Corrections.
Did the trial court err in granting instruction S-3? The state requested and obtained the following instruction:
The Court instructs the Jury that to make a killing justifiable on the grounds of self-defense, the danger to the defendant must be either actual, present and urgent, or the Defendant must have reasonable grounds to apprehend a design on the part of the victim to do him some great bodily harm, and in addition to this, that there must be imminent danger of such design being accomplished; and hence, mere fear, apprehension or belief, how ever sincerely entertained by one person, that another designs to take his life or to do him some bodily harm, will not justify the former in killing the latter. A party may have apprehension that his life is in danger, and believe the grounds of his apprehension just and reasonable, and yet he acts at his peril. He is not the final judge; the Jury may determine the reasonableness of the ground upon which he acted.
Appellant contends this instruction is a misstatement of the law.
As stated in Coleman v. State, 22 So. 2d 410 (Miss. 1945), "This instruction has been approved in the criminal jurisprudence of this State ever since Wesley v. State, 37 Miss. 327. . ." (1859).
In Shields v. State, 244 Miss 543, 144 So. 2d 786 (1962), this Court observed that "The . . . instruction complained of by appellant has been used as a model by the prosecuting attorneys of this State for many years."
The instruction was criticized in Bailey v. State, 174 Miss. 453, 165 So. 122 (1936), but was held not to be reversible error. Since the decision in Bailey, this instruction has been approved as late as 1977 in Bright v. State, 349 So. 2d 503.
Although a majority of the Court is of the opinion that the instruction does correctly state the law, several other Judges are of the opinion that it is too long, redundant and confusing. In the future, it might be wise for district attorneys to substitute the following instruction for the one quoted above:
The court instructs the jury that to make a killing justifiable on the grounds of self-defense, the danger to the defendant must be either actual, present and urgent, or the defendant must have reasonable grounds to apprehend a design on the part of the victim to kill him or to do him some great bodily harm, and in addition to this he must have reasonable grounds to apprehend that there is imminent danger of such design being accomplished. It is for the jury to determine the reasonableness of the ground upon which the defendant acts.
Being of the opinion that the remaining assignments of error are without merit, the judgment and sentence of the Circuit Court are affirmed.
PATTERSON, C.J., BROOM P.J., ROY NOBLE LEE, PRATHER AND ROBERTSON, JJ., CONCUR. HAWKINS, J., DAN LEE, J., AND PATTERSON, C.J., ...