BEFORE ROY NOBLE LEE, PRATHER and SULLIVAN
ROY NOBLE LEE, CHIEF JUSTICE, FOR THE COURT:
Ottis Crawford was indicted and tried in the Circuit Court of Lawrence County, Mississippi, on a charge of murder, was found guilty of manslaughter by the jury, and the trial
judge sentenced him to serve fifteen (15) years in the custody of the Mississippi Department of Corrections. He has appealed to this Court and assigns five (5) errors in the trial below.
Appellant was a plumbing contractor in New Hebron, Mississippi, and also was employed as a meter reader by the local water association. He had installed a water heater in the home of R. J. Herrington and his wife, Bobbie Jean, and on May 21, 1984, R. J. Herrington informed him that the water heater was leaking. Appellant went to the Herrington house and disconnected the water heater that same day. On May 23, 1984, about 9:00 p.m., appellant again went to the Herrington home at the request of Mrs. Herrington because the water heater was still leaking. He arrived at the Herrington house around 9:15 p.m., inspected the water heater and talked briefly with Mrs. Herrington. The two then left in appellant's truck and drove to a secluded spot, where they engaged in sexual intercourse.
Appellant and Mrs. Herrington returned to the house about 9:45 p.m. Mrs. Herrington was riding in the back of Crawford's pickup truck, which was equipped with a camper top. When appellant drove to the Herrington driveway, he noticed people standing outside a neighboring house about 100 yards up the road, which house was under construction and being built by the Herringtons' daughter, Judy Daughdrill. Appellant let Mrs. Herrington out the back of the truck and told her to run to her house.
R. J. Herrington was a school custodian and a member of the Newhebron Police Department. On the night of May 23, he was on police duty, and it was his custom not to return home from night duty until around midnight. When appellant drove up to the Herrington house, one of the persons at the Judy Daughdrill house up the road was R. J. Herrington, who started walking down the road to the pickup truck.
As Mrs. Herrington ran toward her house, according to appellant, he saw R. J. Herrington approaching from the Daughdrill house with a pistol in his hand. Herrington called out, "Bobbie?" and then said, "Ottis, what's going on?" Appellant replied, "It's not what you think," and Herrington said, "Ottis, I'm going to kill you, you SOB." Appellant reached into his truck, produced a .38-caliber pistol and fired three shots at Herrington from a distance of approximately twenty (20) feet. *fn1
Mrs. Herrington testified for the State. When she heard the gunshots, she ran from the house back toward appellant's truck. She heard R. J. call out, "Bobbie," and
"Ottis, what's going on here?" but did not hear the last statement testified to by appellant to the effect, "Ottis, I'm going to kill you, you SOB." She saw Herrington leaning against the truck with appellant inside. Appellant pushed Herrington away from the truck, he staggered for some twenty-five (25) feet, and fell to the driveway. Appellant then drove away. Mrs. Herrington picked up her husband's gun with the intent of firing at appellant as he fled. Later, she took the gun to the house and placed it on the steps.
Elvin Morgan, who had been at the Daughdrill house, heard the commotion and immediately went to the Herrington house, where he saw appellant driving away and found R. J. Herrington dead near the driveway. The county sheriff was summoned, and appellant, who had driven to a fishing camp near Monticello and spent the night, went to the sheriff's house about sunup and surrendered.
THE LOWER COURT ERRED IN GRANTING STATE INSTRUCTION S-7 WHICH WAS AN ABSTRACT PRINCIPLE OF LAW, VOID OF ANY FACTS UPON WHICH THE JURY COULD APPLY THE RULE OF LAW ANNOUNCED BY IT.
The Court instructs the jury that the killing of a human being, without malice, in the heat of passion, by the use of a dangerous weapon, without authority of law, and not in necessary ...