DAN LEE, JUSTICE, FOR THE COURT:
This is an appeal from the Circuit Court of Lafayette County wherein the appellant, Charles Pannell, was convicted of the crime of aggravated assault upon his stepson, Jason Pannell. The sole issue presented by this appeal relates to the granting of an instruction requested by the State concerning the flight of a person from the scene of a crime. We reverse.
The facts surrounding the shooting are in dispute. All that is certain is that on May 23, 1981, Charles Pannell drove to the home of his former wife, Dorothy, and stepson, Jason Pannell. An incident occurred in which shots were fired and Jason Pannell was hit with numerous shotgun pellets from a shotgun admittedly fired by the defendant. Just how this incident came about is not relevant for purposes of this appeal. It is sufficient to state that Charles Pannell testified that he fired only after being fired upon by Jason Pannell and that Jason denied having fired any weapons. Furthermore, both Charles Pannell and his sister, Julia Waldrip, testified that she was with him at the time of the incident. Jason stated that he did not see any passenger in the defendant's truck; however, this may be explained because Mrs. Waldrip testified that she got on the floorboard of the truck when the hostilities began.
The facts that are material to this appeal occurred after the shooting and are completely uncontradicted. Charles Pannell testified that following the shooting he dropped off Mrs. Waldrip at her house and went directly to another sister's house with whom he had been staying. Once there, he immediately phoned the sheriff's office to report the incident. Pannell then made an unsuccessful attempt to contact his attorney. The following morning, after consultation with his attorney, Pannell voluntarily surrendered to the sheriff.
At trial, the State requested and was granted the following instruction:
Flight is a circumstance from which guilty knowledge and fear may be inferred. If you believe from the evidence in this case beyond a reasonable doubt that the defendant, Charles Pannell, did flee or go into hiding, such flight or hiding is to be considered in connection with all other evidence in this case. You will determine from all the facts whether such flight or hiding was from a conscious sense of guilt or whether it was caused by other things and give it such weight as you think it is entitled to in determining the guilt or innocence of the defendant.
Since 1928 when this Court first addressed the law of so-called flight instructions in the case of Ransom v. State, 149 Miss. 262, 115 So. 208 (1928), there has been a clear jurisprudential evolution. A review of our State's legal history on this subject makes the wisdom of that evolution irrefutable.
In Ransom v. State, supra, our Court addressed the problem for the first time. Ransom was indicted for murder and convicted
of manslaughter. From the facts recited in the opinion, it appears that Ransom intervened in a dispute between two others and fired a pistol, killing one Red Henry. Thereafter Ransom and the other combatant fled the scene. An instruction similar to the one now at bar was given to the jury. The opinion states that Ransom argued that his explanation of his flight was uncontradicted and therefore the presumption which might arise from the instruction would be improper. Interestingly and importantly the Court did not set forth any explanation for Ransom's flight. The only mention of an explanation was in the form "It is argued that the appellant's flight is explained." Therefore, it is not apparent what the explanation was, if indeed there was one. The opinion went on to hold:
As we understand the law of flight, it is to be considered in connection with all the other evidence in the case, and the jury will determine from all the facts whether this flight was from a conscious sense of guilt, or whether it was caused from other things, and give it such weight as the jury thinks it is entitled to, in connection with all the other evidence in the case.
149 Miss. at 268, 115 So. at 210.
In Sims v. State, 164 Miss. 16, 142 So. 468 (1932), Granville Sims was convicted of murdering his wife. Sims gave two conflicting accounts of the shooting but did not explain his subsequent flight. This Court held that it was not error to give a flight instruction and that the circumstance of flight could be considered in conjunction with other evidence.
In Howard v. State, 182 Miss. 27, 181 So. 525 (1938), this Court held that an instruction which read:
The Court charges the jury that flight is a circumstance from which guilt might be inferred
was calculated to mislead the jury into believing that flight was substantive evidence of guilt. The opinion stressed that because flight is a circumstance "consistent with innocence as well as guilt" it must be considered with the available material evidence, if at all. Howard marks the point at which our state's law on this issue begins to evolve.
Eubanks v. State, 227 Miss. 162, 85 So. 2d 805 (1956) is the first of the "modern" cases to address the issue. Clyde Eubanks was convicted of receiving stolen property. The jury was instructed as follows:
The Court instructs the jury for the State of Mississippi that unexplained flight is a circumstance from which an inference of guilt may be drawn and considered with all the other facts and circumstances connected with the case.
The facts did not warrant the giving of this instruction. Appellant gave an entirely plausible and uncontradicted explanation of the reason why he was absent from the county for five weeks. The sheriff's testimony to the effect that he could not locate appellant does not negative the uncontradicted status of appellant's testimony in this respect. Instructions on flight, if given at all, should be used only in cases wherein that circumstance has considerable probative value. Moreover, such an instruction is primarily argumentative. Alexander, Mississippi Jury Instructions (1953), Sec. 2341. However even if the facts here had warranted an instruction on flight, this one is erroneous. It is practically a peremptory statement to the jury that appellant fled and that the jury could consider this with other facts in making an inference of guilt. It should have been qualified so as to be related to the facts of this case, and also to tell the jury it must first find the facts before it can use flight along with other circumstances to support an inference of guilt. 1 Alexander, Ibid., Sec. 2342.
227 Miss. at 168, 169, 85 So.2d at 806.
We next addressed this issue in Quarles v. State, 199 So.2d 58 (Miss. 1967). Dotson Quarles was found guilty of manslaughter in connection with the death of Olivia Collins. Quarles was arrested in Chicago six days after discovery of Ms. Collins' body in her Tallahatchie County home. It appeared from the evidence that Quarles had not left Tallahatchie County until at least five days after Ms. Collins' death, and further, he was unaware of the discovery of her body at the time he left the county. The trial court granted the following instruction:
"The Court instructs the jury for the State of Mississippi that flight is a circumstance from which as a matter of law the inference of guilty knowledge and fear may be inferred and if you believe from the evidence in this case beyond a reasonable doubt that the defendant, Dotson Quarles, fled and remained in flight and hiding for a time after he killed Oliva Collins, if you do believe beyond a reasonable doubt that defendant did kill Oliva Collins, and if you further believe from the evidence in this case beyond a reasonable doubt that he did kill Oliva Collins with the intent to kill and murder Oliva Collins, you may take such ...