BEFORE PATTERSON, SULLIVAN AND ANDERSON
ANDERSON, JUSTICE, FOR THE COURT:
Jimmy L. Lancaster was indicted, tried and convicted in the Circuit Court of Chickasaw County for the crime of capital murder of one, Robert Kirby. The indictment charges that the appellant killed Kirby while he was acting in his official capacity and in the performance of his official duties as deputy sheriff of Chickasaw County on December 1, 1981. In a bi-furcated trial, the jury found the appellant guilty of capital murder and after further evidence and arguments, the jury returned a sentence of life imprisonment, which was imposed by the trial court. Lancaster appeals from the sentence
and judgment of the lower court and assigns the following as error:
I. THAT THE COURT ERRED IN PEREMPTORILY INSTRUCTING THE JURY THAT SELF-DEFENSE COULD NOT BE INTERPOSED IN THIS CASE.
II. THAT MANSLAUGHTER IS THE MOST SERIOUS OFFENSE FOR WHICH THIS DEFENDANT COULD POSSIBLY BE FOUND GUILTY.
III. THAT THE COURT ERRED IN REFUSING TO PROPERLY INSTRUCT THE JURY ON THE ELEMENTS OF CAPITAL MURDER.
IV. THE COURT ERRED IN ALLOWING THE PROSECUTION TO INTRODUCE EVIDENCE OF ANOTHER CRIME.
V. THAT THE TRIAL COURT FAILED TO TAKE STEPS TO PROTEST THE DEFENDANT FROM ATTEMPTS BY LAW ENFORCEMENT OFFICERS TO PRESSURE THE JURY.
The tragic facts of this case are that on November 29, 1981, Lancaster had an argument with his wife, which resulted in her filing simple assault charges against him in the Justice of the Peace Court. The justice court judge in due course issued a warrant for Lancaster's arrest.
On the morning of December 1, 1981, at about 8:30 a.m., Deputy Kirby went to appellant's house to serve the arrest warrant. Kirby was driving an official patrol car and was dressed in his deputy sheriff's uniform. He left the patrol car running and went to the house.
Lancaster, the only witness, testified that Kirby knocked on the door and rang the door bell. He went and blew the horn of the patrol car and then went back and rang the door bell again. Lancaster heard Deputy Kirby call out his name twice. He awakened, dressed and went to the door.
He testified that when he opened his front door, he saw Deputy Kirby. Appellant stated," Do you have a problem? "At this point, Lancaster contends that Deputy Kirby saw a gun rack holding deer rifles inside the house, panicked and drew his .357 magnum revolver and fired once through the storm door. The fact that the deputy
fired his gun once in this manner is confirmed by the physical evidence. The hollow point bullet fragmented when it hit the storm door and some of it lodged in appellant's left chest, the remainder lodging in the ceiling. Lancaster's wounds were superficial and not serious. It is uncontroverted that the Deputy fired from a crouched position with the gun at his hip. According to Lancaster, after Deputy Kirby fired his revolver, he then fled with Lancaster giving chase with a 30.06 deer rifle. As Deputy Kirby was fleeing toward a fence, the appellant fired at him five times with the automatic rifle. Lancaster claims that he did not think he hit Deputy Kirby, but the ballistics evidence shows that he did hit Kirby several times. At this point, Deputy Kirby still had his pistol in his hand.
Lancaster then reloaded his 30.06, but decided to go into this house to get his 7 mm. magnum that had a scope on it. He returned to his carport with the 7 mm. rifle with the scope. He braced himself against a refrigerator, some 80 feet from Kirby, and emptied that gun, striking the deputy at least twice, and once in the head, which was the fatal shot. The autopsy of the deceased showed five entry wounds; one entering the outside of the right thigh, two entering the chest in a downward direction, one entering the back around the region of the kidney and the fatal blow that removed a large portion of the deputy's head.
THAT THE COURT ERRED IN PEREMPTORILY INSTRUCTING THE JURY THAT SELF-DEFENSE COULD NOT BE INTERPOSED IN THIS CASE.
The trial court, outside the presence of the jury, made the following statement:
" Now, taking the defendant's own testimony as he testified from the stand, had he killed Kirby when the thing started at the door, there would be no question about self-defense, absolutely, no question. "
" In this case, I think the continuation of the affray, even admitting that the deputy started it, I think the deputy breaking and running twice and going and trying to hide, he only fired his ...