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NOVEMBER 12, 1987




Otis Lee Windham appeals from his conviction in the circuit court of Kemper County of the murder of Albert

Thurston Calvert and sentence to life imprisonment. Because the State was granted an instruction that the" deliberate design "essential to murder could be formed" at the very moment "of the fatal beating, and was in irreconcilable conflict with the manslaughter instructions, we reverse and remand.


 Calvert, 79, and Mrs. Betty Calvert, 78, had been married 51 years. Since 1938, Calvert had owned and run a small grocery store in the non Community of Kemper County. Calvert had no right arm; it had been cut off at the shoulder. The Calverts lived in a house situated up a little hill across the road from the old, wooden, tin-roofed store.

 Two gas pumps stood side-by-side immediately in front of the store. Calvert kept two guns on the premises. A .22 caliber rifle leaned against the back of the entrance door. A small pistol resided in a holster hanging underneath the cash register. The guns were visible to all who came in the store and their presence seems to have been common knowledge.

 On June 26, 1985, around 6:00 or 6:30 p.m. Otis Lee Windham, 21, pulled into Calvert's Grocery to buy gas. His car windows were down. A silver hammer was inside Windham's car.

 It is undisputed that Calvert and Windham discussed a $15 or $20 debt he owed to Calvert's Grocery. Wanda Hampton, while fishing in Mr. Calvert's pond with relatives, heard Mrs. Calvert say," If you don't leave him alone, I'll call the sheriff. "Mrs. Calvert struck Windham in the face. Windham struck her on the head. (She received six stitches.) Windham did something to Mr. Calvert to cause Mr. Calvert to die. Mrs. Calvert did not see what Windham did. Windham immediately departed in his car and eventually drove to the jail to tell the deputy sheriff what happened. At that point, he learned that Calvert had died. He then made the following statement:

 Me and Mr. Calvert was arguing about a bill I owed him and I started pumping gas and Mrs. Calvert came from the house, she hit me in the mouth with her fist. That is when everything turned alose [sic]. I must have went to the car and got my hammer and then hit Mrs. Calvert. Then I grabbed her husband. I pushed him and got into my car and left. . . . Mr. Calvert never hit me but he started back in the store and that's when

 grabbed him and throwed him. He was going from me and I caught him at the door.

 Windham's trial testimony was that, as he started pumping gas, he was talking to Mr. Calvert when he heard somebody say something and he went to turn around and somebody hit him in the mouth. He reflexively hit the person with the gas nozzle, then turned around and looked, and saw that it was Mrs. Calvert. Then he turned around and looked at Mr. Calvert, and Mr. Calvert had started back inside the store. Windham caught him by his shirt and pulled him back around to the front of the car. He threw Mr. Calvert hard enough so he could get to his car and get away. Windham stopped Mr. Calvert from running to the store because he knew Mr. Calvert had two guns in there. Windham concluded by saying he was really scared because he knew Mr. Calvert was upset about his wife being hurt.

 According to Mrs. Calvert, she tried to pry Windham's grip loose from her husband's arm. When Windham refused to release Mr. Calvert, she hit him on the cheekbone. Windham reached in his car and got a shiny hammer and hit her head hard enough to knock her out. As she regained consciousness, she saw her husband's body fall out in front of her" limber as a dishrag. "She assumed that Windham hit Mr. Calvert on the head with the hammer but admitted that she did not see the act.

 According to the state medical examiner, there were at least two distinct blows to the back of Calvert's head. The pathologist stated in his autopsy report that the cause of death was blunt, traumatic head injuries from a beating. He arrived at beating as the cause of the injuries because of the two distinct blows to the head. The injuries were" more than could be accounted for by simply falling and hitting his head and then another bounce. "

 It is Windham's contention that Mr. Calvert did not simply fall down, but that he was violently thrown to the ground and that, because Calvert was a big man (6'2"), he hit hard. The pathologist referred to a blunt instrument having struck the head, but considered concrete or asphalt pavement to be blunt instruments capable or causing blunt trauma. There is no eyewitness testimony to contradict Windham's account that he violently threw Mr. Calvert to the ground and Mr. Calvert's head bounced and hit a second time.


 Under the unusual facts of this case, there were four

 possible statutory scenarios which the jury could have considered.

 Miss. Code Ann. 97-3-19 (1) (a) (Supp. 1986) defines murder:

 97-3-19. Homicide; murder defined; capital murder.

 (1) The killing of a human being without the authority of law by any means or in any manner shall be ...

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