BEFORE PATTERSON, C.J., DAN LEE AND SULLIVAN, JJ.
PATTERSON, CHIEF JUSTICE, FOR THE COURT:
This is an appeal from the Circuit Court of Washington County, wherein James Willie Flowers was indicted for murder, convicted of manslaughter and sentenced to twelve (12) years imprisonment. We reverse and remand for a new trial.
It is undisputed that the night of Christmas Eve, 1981, or the early morning hours of Christmas Day, James Willie Flowers shot and killed Joe Lee Edison in the Blue Note Cafe in Greenville. State's witnesses testified that Flowers' gun was the only visible weapon in the nightclub at the time of the incident. Besides being replete with contradictions on minor points, this evidence conflicts squarely with defense testimony that Flowers shot Lee because Lee and his brother had two guns pointed at him, thereby doubtlessly causing him to fear for his own life. The jury resolved the conflict by finding Flowers guilty of manslaughter.
Flowers assigns two errors, one of which is that the court improperly granted State's Instruction S-2, set out below:
The court instructs the jury that to make a homicide justifiable on the ground of
self-defense, the danger to the slayer must be either actual, present and urgent, or the slayer must have reasonable grounds to apprehend a design on the part of the deceased to kill him, or to do him 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 the slayer, that another designs to take his wife or to do him treat bodily harm will not justify the slayer in taking the life of the latter party. The slayer may have a lively apprehension that his life is in danger or that he is in danger of great bodily harm, and believe the grounds of his is apprehension just and reasonable, and yet he acts at his own peril. He is not the final judge; the jury may determine the reasonableness of the grounds on which he acted.
If you believe from the evidence in this case beyond a reasonable doubt that the defendant, James Willie Flowers, did unlawfully, willfully, feloniously and of his malice aforethought shoot and kill Joe Lee Edison, a human being, at a time when he, the said James Willie Flowers, was not in any imminent danger of great bodily harm either real or apparent being inflicted upon him, then it is your sworn duty to find the defendant, Willie James Flowers, guilty of murder. (Emphasis added.)
At trial defense counsel objected to the language here emphasized and sought to correct it by amendment.
As early as 1936, this Court held an almost identical instruction would have been reversible error had it not been accompanied by one which emphasized the defendant's right of self-defense. Bailey v. State, 174 Miss. 453, 165 So. 122 (1936).
Until 1983, we upheld with little comment the continued use of this instruction. E.g. Shields v. State, 244 Miss. 543, 144 So. 2d 786 (1962); Coleman v. State, ___ Miss., ___ 22 So.2d 410 (1945).
However, in Robinson v. State, 434 So. 2d 206 (Miss. 1983), the instruction received more than cursory attention. Having reviewed the case law controlling the issue, the majority opinion stated," Although a majority of the court
is of the opinion that the instruction does correctly state the law, several other Judges are of the opinion that it is too long, redundant and confusing. "434 So.2d at 207. The court then advised District Attorneys to employ a proffered alternative instruction. Accord Lenoir v. State, 445 So.2d 1371 (Miss. 1984).
The instruction again came under attack in Scott v. State, 446 So.2d 580 (Miss. 1984). Although the case was reversed on other grounds, the court addressed the issue of the granting of Instruction S-8, similar to S-2:
Recently, in Robinson v. State, (citation omitted) this Court condemned an instruction similar to S-8. This is so because the instruction is self-contradictory and confusing. The troublesome part is the first sentence of the final paragraph. If a party has" an apprehension that his life is in danger "and believes" the grounds of his apprehension just and reasonable "a homicide committed by that party is in self-defense. These are the grounds upon which a claim of ...