BEFORE PATTERSON, HAWKINS AND PRATHER
HAWKINS, JUSTICE, FOR THE COURT:
Bobby Lee Haynes was convicted in the Circuit Court of Harrison County of the crime of manslaughter. The indictment also charged him with being a habitual offender, and this likewise being proved to the circuit judge, he was sentenced to twenty (20) years without parole.
The appeal challenges the sufficiency of the evidence, and assigns other errors. No error is assigned as to his conviction of being a habitual offender. The victim, John Mitchell, died from a severe beating by Haynes in a local saloon. This is a classic jury case, Haynes had unquestionably been previously assaulted by Mitchell, and provoked; yet it was a matter for the jury to determine whether this slaying was in self-defense or anger at Mitchell.
We reverse upon the assignments of error we address: (1) the right of an accused to an instruction that in order to invoke the defense of self-defense, it is not necessary for the defendant to flee, and (2) oral response by the circuit judge to an inquiry by the jury during its deliberation.
At the conclusion of the trial, the defense requested the following instruction:
The court instructs the jury that while the danger which will justify the taking of another's life must be imminent, pending, and present, such danger need not be unavoidable except by killing in self-defense. The court instructs the jury that the accused, Bobby Lee Haynes, need not have avoided the danger to his person presented by the deceased, John Mitchell, by flight. So long as the defendant was in a place where he had the right to be and was not the immediate provoker or aggressor,
he may stand his ground without losing the right of self-defense. [R.359]
It has always been the law in this state that a defendant is not deprived of the right to claim self-defense in a slaying even if he could have avoided the threat to his safety by fleeing.
In Long v. State, 52 Miss. 23 (1876), p.34, it is stated:
Flight is a mode of escaping danger to which a party is not bound to resort, so long as he is in a place where he has a right to be, and is neither engaged in an unlawful, nor the provoker of, nor the aggressor in, the combat. In such case he may stand his ground and resist force by force, taking care that his resistance be not disproportioned to the attack.
It is thus clear that the latter part of the requested instruction correctly stated the law. Such an instruction is not often applicable to the facts of a case, however. In this case we think the judge should have either granted the instruction, or some instruction that embraced this principle. There was some testimony by Haynes that he began to walk away when the trouble started, and the jury could have wondered why he did not simply leave. Whenever, from the facts of the case, it appears that the defendant could have avoided the fatal difficulty only by precipitous retreat, but did not leave, if the other requisite factors are present as stated in Long, supra, then the defendant is entitled to such an instruction.
The following instruction, S-4, was granted the state:
The court instructs the jury that to make a homicide justifiable on the grounds of self-defense or defense of another, 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 deceased to kill him, or to do him some great bodily harm, and in addition to this, that there was imminent danger of such design being accomplished; and hence mere fear, apprehension or belief, however sincerely
entertained by one person that another designs to take his life or do some great bodily harm, will not justify the former in taking the life of the latter party. A party may have an apprehension that his life is in danger, and believe that 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. [R.350]
The defense made no objection to this instruction.
The record reveals that when the jury had been deliberating three hours, the following transpired:
We have a question from the Jury." Does fearful apprehension alone in light of previous events ...