BEFORE PATTERSON, C.J., HAWKINS and ROBERTSON, JJ.
HAWKINS, JUSTICE, FOR THE COURT:
Manuel Girton was indicted by the grand jury of DeSoto County for murder of one John Cooley, tried and convicted of manslaughter and sentenced to serve a term of seven (7) years in the Mississippi Department of Corrections.
We first reject Girton's contention on appeal that the evidence failed to support the verdict of the jury. It is only necessary that we address the propriety of the circuit judge's subsequent instruction to the jury during its deliberation.
When both sides had rested, the circuit judge instructed the jury. Among the instructions granted were the following:
The Court instructs the Jury that if death is inflicted upon a person with a deadly weapon, in a manner calculated to destroy life, then malice and intent to kill may be inferred from the use of the weapon.
The Court instructs the Jury that in order to justify a homicide on grounds of self-defense, the danger to the Defendant must be actual, present, and urgent, or the Defendant must have reasonable grounds to apprehend design of assaulted party to kill him or do him great bodily harm, coupled with imminent danger of such design being accomplished, and mere fear, apprehension or belief, will not justify the
The Court instructs the Jury that in this case that unless you believe from the evidence in this case that MANUEL GIRTON, had reasonable, actual and urgent grounds to believe that the deceased, JOHN D. FRANK COOLEY, intended to do him some great bodily harm, and that he the said deceased, JOHN D. FRANK COOLEY, had the present ability to carry out said design to do the said MANUEL GIRTON great bodily harm, then and only then, was MANUEL GIRTON, justified in taking the life of JOHN D. FRANK COOLEY.
The Court instructs the Jury that in order to justify a homicide on the plea of self-defense, there must be something shown in the conduct of the deceased indicating a present intention to kill or do some great personal injury to the slayer and imminent danger of such intention being accomplished; mere fears or belief are insufficient. The danger must be such as to lead a person reasonably to believe that the killing was necessary to prevent the deceased from killing him or doing him some great bodily harm.
A party may have an 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.
When the jury had deliberated three
hours and fifteen minutes, the circuit judge received the following written request from a juror:
To me the State has not proved beyond a reasonable doubt that Mr. Girton was put into a position of having his back to the wall, pushed into a corner and made to take some sort of action to protect his life, family or home. The action he took may not have been proper, but it might have been the only action he felt he could take at the time. Some of the other Jurors tell me I am not following the law as it was laid out for us (And there is what, I believe to be a period) My feelings, if I am wrong, please show me at what point I am failing and I could possibly change my opinion.
Over the objection that the question contained in the request was adequately covered and further comment would be prejudicial, the circuit judge wrote the following instructions to the jury:
The State does not have to prove that the acts of the Defendant were reasonable. It is a question of fact for the Jury to determine. The reasonableness of his acts are factual questions. Apply the written instructions to the facts as you determine them to be.
Less than thirty minutes following receipt of this instruction the jury returned a verdict of guilty of manslaughter.
Girton and the decedent were members of a gypsy group. It is apparently a gypsy custom to have open fights between women who have fallen out, at which occasion a crowd gathers to witness the event. *fn1 Earlier in the day, on Christmas Eve, 1980, Girton's wife and her sister had a fight with the decedent's sister, Rachel, in which Rachel came out second-best. Rachel demanded a re-match under
their gypsy code" duello ", which was accepted. She and Girton's sister-in-law, Pansy, were having it out in front of Girton's trailer before a crowd of ...