BEFORE ROY NOBLE LEE, HAWKINS AND DAN M. LEE
DAN M. LEE, JUSTICE, FOR THE COURT:
This is an appeal from the Circuit Court of DeSoto County wherein the appellant, Vernon Lee Scott, was found guilty of murder. Scott was indicted in the February, 1981 term of the DeSoto County Grand Jury. The indictment charged him with the December 6, 1980 murder of W. C. "Dub" Turner. Upon the jury's verdict finding Scott guilty of murder the court sentenced him to life imprisonment in the custody of the Mississippi Department of Corrections. From that conviction and sentence he brings this appeal. We reverse.
On December 6, 1980, W. C. "Dub" Turner died as a result of being shot twice by a .22 caliber pistol. Turner was killed during a scuffle between himself and Vernon Lee Scott. The events leading up to the shooting are not in dispute but, as we often find, there is more than one version of the shooting itself and the events immediately thereafter.
Scott testified that on the fateful evening he was in the apartment of his girlfriend, Viola Person. Just as they were about to eat dinner Dub Turner came to Ms. Person's door to ask Scott to help him fix his stereo. Scott told Turner that he would be over after dinner. Moments later, Scott changed his mind and he and Ms. Person walked across the hallway to the Turners' apartment. Scott stated that because he had repeatedly been asked to show Turner how to operate his stereo that he told Turner that he ought to get another one. In response, Turner stated that it was his money and that he would keep his tape player. Scott then told him that if he had so much money then he should pay him (Scott) for helping to fix Turner's car. Turner replied that he would pay Scott with a .22. Scott testified that at the time Turner said this he was lying on the couch. Turner then pulled a gun from under the pillow on which he was reclining and fired it in Scott's direction. This is the point at which the testimony becomes conflicting.
Scott testified that as he and Turner were scuffling, Turner called for his wife, Willie Mae Turner, to "Come here and get this Nigger off of me." Scott stated that the weapon went off once while Willie Mae was hitting him with a stick at which time she quit hitting him. Scott also testified that the gun discharged twice more after she stopped hitting him. He was certain that all in all Turner had fired the gun four times. After the last shot, Scott claims that he wrested the gun away from Turner,
took it to an outside door where he pointed it at the ground and squeezed the trigger a couple of times. Neither time did the gun go off. Scott testified that he did this to assure that there were no more live rounds in the weapon. As Scott started to leave Turner said "Don't take my gun." Scott replied, "Well, I don't want your gun, Dub." With that Scott threw the gun on the floor of the Turner apartment.
Cagon Simmons, another apartment resident, had been summoned by Ms. Person during the fracus. As Scott left he asked Simmons if anyone was hurt in the Turner apartment to which Simmons replied, "No." Scott stated that he went to Ms. Person's apartment for approximately fifteen to twenty minutes and was determined to have a talk with Turner the following day. Scott was certain that Turner's behavior was the result of drunkenness. Viola Person's testimony corroborated Scott's story.
Cagon Simmons was the primary witness for the state and as such he told a different story. Simmons testified that he had been summoned by Viola Person and followed her down to the Turners' apartment where he found Scott and Turner fighting. Simmons stated that when he walked into the apartment Willie Mae Turner was whipping Scott on the back with a chair. As the two were wrestling the gun went off twice and the second time it fired Willie Mae Turner sat down. Simmons stated that Scott then took the gun away from Turner, stepped eight to ten feet away, turned and shot Turner. Simmons testified that after this Scott told him to leave the apartment and go home. Simmons claimed he left the apartment just before Scott. Simmons denied that anyone asked him if the Turners were okay.
Following all of the evidence the jury deliberated and found Scott guilty of murder. The trial judge later sentenced him to a life sentence in the custody of the Mississippi Department of Corrections.
In reviewing Scott's conviction, we turn first to the instructions given to the jury. Of great concern to this Court is Instruction S-1 which reads:
The Court instructs the jury that the killing of a human being is an excusable homicide if, the Defendant acts (sic) which caused the death of W., C. Turner, was a result of sudden combat, without taking undue advantage and without the use of a dangerous weapon and not in a cruel and unusual manner.
If you find from the evidence beyond a reasonable doubt that W. C. Turner's death was caused by being shot with a gun wielded by the Defendant, Vernon Lee Scott, and that it was not in necessary self-defense, and it was not in sudden combat, and he the said Vernon Lee Scott did take undue advantage, then you shall find the Defendant guilty as charged by writing your verdict on a separate sheet of paper. (Emphasis added.)
Scott argues that the instruction is faulty because it fails to mention all of the circumstances in which a killing is legally excusable. Section 97-3-17 of the Mississippi Code Annotated (1972) lists ...