BEFORE PATTERSON, PRATHER AND SULLIVAN
PRATHER, JUSTICE, FOR THE COURT:
The appeal addresses the trial judge's effort to avert a mistrial by the giving of an additional instruction to a jury deadlocked solely on the issue of defendant's guilt as to a greater or lesser offense. The defendant, Henry Mack Isom, was indicted for the willful, unlawful and felonious murder of Franklin D. Shaw.
After eight hours of deliberation and a special interrogatory issued by the Court, the jury returned a verdict of guilty of manslaughter and Isom was sentenced to serve a term of 18 years in the Mississippi Department of Corrections. Isom appeals and this Court reverses on two of his assignments of error as follows:
(1) The trial court erred in requiring the jury to deliberate for excessive hours;
(2) The trial court erred in giving a special interrogatory after the jury having been sufficiently instructed retired for deliberation.
On July 30, 1983, several people were gathered at the Briar Patch or Colonial Restaurant in Holly Springs, Mississippi. Although accounts at trial differed as to the actual train of events, it seems that as a result of scuffling and shouting of racial slurs between blacks and whites gathered at the restaurant, Frank Shaw suffered a fatal gun shot wound to his chest. The gun was fired by Henry Mack Isom who admitted firing the shot but claimed he merely wanted to scare Shaw.
On the second day of the trial, the jury retired at 3:21 p.m. At 4:30 p.m. the jury asked for definitions to some words, the court declined to elaborate and referred them to their instructions. At 10:38 p.m. when the jury had reached no decision, the court inquired whether the jury would prefer to continue deliberations or resume the following day. In a vote of nine to three a majority voted to continue. At 11:07 p.m. the jury was still undecided. The verdict at that time stated: "We the jury are unable to come to a final conclusion as to a manslaughter, murder or be released in self-defense. We are hung at a vote of ten murder verdicts and two manslaughter verdicts." Receiving this note the judge stated:
The Court: Ladies and gentlemen, have you reached a verdict? Please answer yes or no.
Juror: No, we are undecided.
The Court: Ladies and gentlemen, I am going to submit you a special interrogatory or special question. The note you have given me is not, in my opinion exactly clear. I will write an instruction on the court's own motion and on discretion in this case, and I will ask that you . . . I will read it to you and then ask that you retire and give me an answer to this question.
(Special interrogatory prepared by the Court)
The Court: Ladies and gentlemen, I read you this special interrogatory or question: Do you unanimously agree that the defendant is guilty of either murder or manslaughter according to the instructions given and that the killing of Frankie Shaw was not in necessary self-defense according to the instructions? If your answer is "yes," then you are authorized to return a verdict of guilty of manslaughter. The clerk will hand you this instruction. Please return to the jury room. Let the bailiff know when you have an answer to the interrogatory.
At 11:35 p.m. the jury returned to the jury room. At 11:35 p.m. the jury returned to the courtroom with the following verdict:
We the jury find the defendant guilty of manslaughter.
After a polling of the jury, the jurors were dismissed.
Did the trial court err in giving a special interrogatory when the jury had been amply instructed on the law?
Isom asserts that the judge's instruction constitutes reversible plain error under Supreme ...