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FEBRUARY 22, 1984




Raymond Smith was convicted of murder and sentenced by the Circuit Court of Alcorn County to life imprisonment.

Although there are numerous assignments of error designated for reversal, we address only those concerning the granting of certain instructions.

 On June 8, 1980, Amos Ergle came from Alabama to the home of Raymond Smith, his cousin, in Alcorn County. Ergle stated to Smith that he was running from the law and was armed. He appeared agitated and wanted something to drink. Upon Ergle's insistence, Smith went with him to purchase some whiskey and vodka. They imbibed and returned to Smith's home where Ergle continued to drink. Afterward Ergle became belligerent and threatened to beat Smith. Smith attempted to get Ergle to use a bedroom and sleep it off, believing the rest would calm Ergle, but this effort was fruitless.

 Thereafter Smith, his wife and Ergle visited Smith's mother whose home was next door. After a few minutes Smith's wife returned to her home leaving the appellant; his mother, Mary Lou Smith; and Amos Ergle. Thereafter Ergle began to destroy the furnishings in the home of Mrs. Smith and when she attempted to stop him by entreaty and asked him to leave, he threatened her and refused to leave her house. In this state of affairs the appellant and his mother left the house to return to the appellant's home. While en route Mrs. Smith heard gunshots behind her, turned and observed Ergle lying on the ground and her son walking to his home.

 Smith testified he shot as Ergle ran toward him. Alluding to events earlier in the day, Smith stated that Ergle had accused him of calling him a "queer," and of complicity in the drowning of Ergle's brother. He also insisted that Smith drive him back to Alabama, threatened to kill him and the entire family, and refused to leave the premises after he had been asked to do

 so. Under these circumstances Smith stated he thought he had no alternative but to obtain his gun. He testified that when he and his mother left her house that Ergle followed them and his mother cried out that he was coming after them and told him to run but he could not do so because of his physical condition. He then shot Ergle as he could not escape him.

 On this testimony Smith was convicted of murder. Being of the opinion the evidence reveals no crime greater than manslaughter, and because the jury was improperly instructed, we reverse and remand for a new trial.

 Before addressing the instructions assigned as error and to place them in proper perspective, we think reference to homicide less than murder need be mentioned. The term "justifiable homicide" is commonly understood to mean the killing of another in necessary self-defense under extreme circumstances warranting an acquittal of the accused. Another homicide less than murder is the killing of another in the heat of passion, without malice aforethought and is generally referred to as "manslaughter." It does not justify a homicide as does self-defense but rather reduces the greater crime of murder to the lesser crime of manslaughter because "malice aforethought" is lacking. Manslaughter does not exonerate the homicide but requires a sentence less than that for murder. Mississippi Code Annotated, Section 97-3-35 (1972) provides:

 The killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense, shall be manslaughter.

 It will be noted that every homicide "without malice," and "not in necessary self-defense" , and "in the heat of passion" shall be manslaughter. The distinction between murder and manslaughter is that the latter is without malice.

 The cogent issue presently before the court is whether instructions S-1 and S-2 properly instructed the jury on the issue of manslaughter. We are of the opinion they did not. Instruction S-1 provides:

 The defendant, Raymond Smith, has been

 charged by an indictment with the crime of Murder for having caused the death of Amos Ergle, with the deliberate design to kill Amos Ergle. If you find from the evidence in this case beyond a reasonable doubt that the deceased, Amos Ergle, was a living person, and the defendant, Raymond Smith, did wilfully and of his deliberate design kill Amos Ergle, by shooting the deceased with a deadly weapon, to-wit: a .22 caliber revolver, and ...

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