BEFORE ROY NOBLE LEE, C.J., SULLIVAN AND ZUCCARO, JJ.
ZUCCARO, JUSTICE, FOR THE COURT:
James L. Stoop was indicted by the Grand Jury in Prentiss County on February 13, 1984 for the murder of Marvin C. Williams. Stoop was arraigned on February 15, 1984 at which time he pled not guilty. Stoop went to trial on February 19, 1985; however, the jury was unable to reach a verdict and the trial ended in a mistrial on February 21, 1985. On November 2, 1985, the second trial also ended in a mistrial due to the jury's inability to reach a verdict. However, on October 1, 1986, Stoop was found guilty by a jury and sentenced to life in custody of the Mississippi Department of Corrections. Stoop appeals assigning the following as error:
I. THE TRIAL COURT ERRED IN NOT GRANTING A NEW TRIAL BASED UPON THE FACT THAT JUROR, ALLEN MOORE, DID NOT REVEAL TO THE COURT AND TO THE ATTORNEY FOR THE DEFENDANT THAT HE WAS PRESENTLY INVOLVED IN A CRIMINAL CASE STILL PENDING IN THE CIRCUIT COURT OF PRENTISS COUNTY.
II. THE TRIAL COURT ERRED IN NOT GRANTING A MISTRIAL UPON THE STATE'S ATTORNEYS STATING TO THE JURY THAT THEY SHOULD" MAKE THEM PROVE FACTS TO YOU AND NOT EMOTION ".
III. THE TRIAL COURT ERRED IN ALLOWING INTRODUCTION OF THE PROJECTILE WHICH CAUSED THE DECEASED'S DEATH OVER THE OBJECTION OF THE DEFENDANT.
IV. THE COURT ERRED IN GRANTING INSTRUCTION NOS. S-1A AND S-2A TO THE JURY.
V. THE TRIAL COURT ERRED IN REFUSING TO GRANT INSTRUCTION D-1 TO THE JURY.
VI. THE TRIAL COURT ERRED IN REFUSING TO GRANT THE ISSUANCE OF THE PROPOSED INSTRUCTION D-3 TO THE JURY.
VII. THE TRIAL COURT ERRED IN REFUSING TO GRANT PROPOSED JURY INSTRUCTION NOS. D-4 AND D-5.
VIII. THE TRIAL COURT ERRED IN EXCLUDING EVIDENCE CONCERNING WHETHER OR NOT THE DECEASED HABITUALLY CARRIED A WEAPON AND THAT THE DEFENDANT HAD THIS KNOWLEDGE PRIOR TO THE SHOOTING.
IX. THE TRIAL COURT ERRED IN ALLOWING THE READING OF THE TESTIMONY OF KAREN HEATHCOCK FROM PRIOR
TRIALS INTO THE RECORD WITHOUT THE STATE PROVING THAT SHE WAS UNAVAILABLE TO TESTIFY.
X. THE TRIAL COURT ERRED IN NOT GRANTING A NEW TRIAL TO THE APPELLANT PURSUANT TO HIS MOTION FOR NEW TRIAL WHICH WAS FILED AFTER THE VERDICT WAS RENDERED.
We find assignments IV, VIII, and IX to have merit. Finding no merit in the other assignments of error we discuss only assignments of error IV, VIII and IX.
This case involves adultery, fornication, mental cruelty and ultimately death. However, the death was not that of an innocent victim but of a man having an adulterous affair with the wife of appellant and then tormenting him by dangling the affair beneath the husband's nose. The grand finale in this scenario of sins was the fatal shooting of Marvin C. Williams (Charlie Williams), the lover of Norma Stoop, by James L. Stoop, Norma's husband.
James L. Stoop (Jimmy Stoop) was tried for the third time and finally convicted of murder by a jury on October 1, 1986 and sentenced to life in prison. The record on appeal, a fit transcript for a trashy soap opera, reveals the following sordid facts:
Norma Stoop and Jimmy Stoop were married on August 16, 1958. They had two children, Tim, twenty six at the time of trial, and Angela, twenty at the time of trial.
In August of 1983, Jimmy Stoop moved out of his and Norma's bedroom into the den due to the deterioration of their marriage. After he moved into the den, Jimmy Stoop began to receive phone calls from Charlie Williams. Charlie said things such as," Well, you ole bastard, are you still married to your television set? Bastard do you know where your wife is? "These phone calls occurred about five times from the time Jimmy moved to the den until October 12th, the day before the shooting. Jimmy testified that he heard laughing in the background and that his wife was never home during the times he received the phone calls.
Jimmy testified that he confronted his wife, Norma, on October 6, 1983 about her affair with Charlie Williams. Norma admitted to having the affair and said she intended to continue with the affair. Jimmy pleaded with Norma to discontinue the affair, to no avail.
Norma Stoop's usual routine was to come home at 4:00 in the afternoon from work to change clothes and leave not to return sometimes until after midnight.
Both Angela Stoop, daughter of the Stoops and Jimmy Stoop, on different occasions, had ridden past Charlie Williams' house to find Norma's car parked there.
On October 12, 1983, Jimmy and Angie were at home together when Jimmy decided to call Charlie at work to ask Charlie to quit seeing Norma Stoop. Charlie became belligerent and commented that he was going to continue seeing Norma Stoop but that he wanted to meet Jimmy Stoop somewhere. Charlie said," I will talk to you, I will do more than talk. "Jimmy Stoop tried to get Charlie Williams to meet him at Hobo Station, a store in Booneville. Charlie refused, saying," There are too many people there. Like I told you before, we have a Hell of a lot more to do than talk. "Charlie told Jimmy Stoop to meet him on Mt. Pisgah road by four o'clock that day. Angela Stoop testified that she was sitting next to her father so she could hear the conversation and Angela's testimony was corroborative of Jimmy Stoop's testimony. Jimmy did not meet Charlie Williams because Norma Stoop talked him out of it. Norma told her husband" If you won't go, I will come ...