BEFORE ROY NOBLE LEE, SULLIVAN AND ANDERSON
SULLIVAN, JUSTICE, FOR THE COURT:
In the late afternoon of June 23, 1983, Gates shot and killed Willie Hughes with a 30-30 rifle in Starkville, Mississippi. Gates turned himself in and confessed to the shooting. He was indicted for murder. His trial was continued until the October, 1983, term.
On the first day of the trial, Gates requested another continuance on the ground that a material witness was absent. This motion was overruled and the case proceeded to trial. When the prosecution rested, Gates moved for a directed verdict but was overruled. When the trial ended, Gates renewed his motion for a directed verdict and requested a peremptory instruction of not guilty. This motion was overruled and the instruction was refused.
Upon the verdict of guilty, Gates was sentenced to life imprisonment and perfects this appeal.
WAS IT ERROR TO REFUSE THE MANSLAUGHTER INSTRUCTION, No. D-8?
As the trial judge found no elements of manslaughter in the evidence, he refused instruction D-8. However, he did grant a self-defense instruction.
Harper v. State, 478 So.2d 1017 (Miss. 1985), sets out the test to be applied to determine when an instruction on a lesser included offense should be submitted to the jury:
[A] lesser included offense instruction should be granted unless the trial judge - and ultimately this Court - can say, taking the evidence in the light most favorable to the accused, and considering all reasonable favorable inferences which may be drawn in favor of the accused from the evidence, that no reasonable jury could find the defendant guilty of the lesser included offense (and conversely not guilty of at least one essential element of the principal charge).
Mississippi Code Annotated 97-3-35 (1972) provides as follows:
The killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense,
By his own statement given shortly after the incident, Gates and Jamie Humphries were in her car when Gates saw his wife, Shirley Gates, in a truck with Hughes. According to Gates, Hughes cursed Gates so Gates followed him until they arrived at the Texaco service station. At this point, Gates got out of his vehicle with the rifle. He intended to whip Hughes, but when Hughes got smart and cursed him Gates lost his head and shot Hughes.
Scott Jones saw the shooting. According to Jones, Hughes was unarmed and appeared calm. He made no movement toward Gates. Gates appeared upset. Gates shot Hughes in the chest and waived the gun at Shirley Gates and yelled at her.
Paul Hendrick corroborated the testimony of Scott Jones.
Douglas Brownlee was in the truck with Hughes and Shirley Gates. Brownlee's testimony was that Gates told Hughes in strong language to pull the truck over. When Hughes pulled into the Texaco lot, Brownlee jumped out because of the language Gates had used. He did not know if Gates was going to shoot Hughes or not. Brownlee went to the rear of the truck. Hughes got out and then Gates got out with the rifle. Hughes was unarmed and had no weapon in the truck. Hughes said nothing to Gates and made no move toward him. Gates told Hughes to get on his knees, and when Hughes did not do so Gates shot him. Finding discretion to be the better part of valor, Brownlee then fled.
Shirley Gates testified. She was not living with Hughes but was separated from Gates. Up to their arrival at the Texaco station, her testimony is the same as Brownlee's. She testified that at the station Hughes got out, unarmed, and Gates got out with the rifle. Gates accused Hughes of talking about him, which Hughes denied. Gates then told Hughes to get on his knees, which Hughes refused to do. Gates then shot Hughes. Gates told Shirley he ought to kill her too, and started hitting her with the rifle.
By stipulation, the defense was able to get before the jury an affidavit and the statement given to the police by Jamie Humphries, the unavailable witness. In the Humphries version, Hughes cursed Gates and they argued. When this ...