BEFORE ROY NOBLE LEE, DAN LEE and SULLIVAN
ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:
Ricky Dale Meshell was indicted and tried for capital murder as an habitual offender and the jury returned a verdict finding him guilty of manslaughter. Meshell was sentenced by the Circuit Court of Harrison County to twenty (20) years without parole in the custody of the Mississippi Department of Corrections, and he appeals to this Court, assigning two (2) errors in the trial below.
I. THE VERDICT OF THE JURY WAS CONTRARY TO THE OVERWHELMING WEIGHT OF THE EVIDENCE.
Under this assigned error, appellant contends the verdict of the jury was against the overwhelming weight of the evidence because (1) the State never proved that the person killed was the same person as the one named in the indictment; (2) the state failed to prove beyond reasonable doubt that the appellant was attempting to rob the victim; and (3) the court erred in failing to direct a verdict of not guilty, since appellant's testimony indicated an apparent physical threat to his safety from the actions of the victim.
At approximately 11 p.m. on September 21, 1983, appellant and five (5) friends were going to a party in North Biloxi, Mississippi, and were riding in an automobile owned and driven by appellant. At some point in time, en route the party, appellant stopped the automobile and emerged from it. An elderly Vietnamese man approached him, and appellant struck the man with his left fist. The blow knocked him to the ground, and the back of his head hit the concrete, causing serious injuries. As the victim lay prostrate on the edge of the street, appellant searched his back pockets. Appellant then drove off with his passengers. Shortly thereafter, a cab driver stopped where the injured man lay and notified the police. He was taken to the Biloxi Regional Medical Hospital, where it was discovered that there were three areas of bleeding deep within the victim's brain. Medication was administered to combat swelling, but the victim began to
deteriorate and by 5 p.m. the next day was comatose.
The victim's relatives were advised that medication was all that could be provided for the particular type injury. They insisted that he be discharged into their care and, contrary to medical advice, the victim was released to them for transportion by ambulance to the Charity Hospital in New Orleans, Louisiana. In transit, the victim developed complications and was admitted to the Hancock General Hospital where he died at approximately 5:20 p.m. An autopsy by Dr. Eldon McClain indicated that the victim died from trauma to the head and brain caused by a massive blow to the head.
Appellant asserts that the Vietnamese man was approaching him and that the appellant struck the man in self defense. The record does not reflect that appellant and the victim knew each other or had any previous altercation. The victim was not armed.
The appellant contends (1) the State never proved that the victim Sou Van Nguyen was the same person as the one named in the indictment. Dr. Regina Mills, an internal medical specialist, attended and treated the victim at the Biloxi Regional Medical Hospital. She testified in part:
Q. When you first examined Mr. Sou Van Nguyen at 2:00 in the morning on September 22nd, 1983, were you given any information about his injuries?
A. I was told by the emergency room physician that there was a patient with head trauma that was admitted and needed an immediate physician and he did not have a physician.
Q. Do you know what time he arrived at the hospital, approximately:
A. I believe approximately between 11:30 and 12:30 but I don't ...