The opinion of the court was delivered by: McRAE, Justice
DATE OF JUDGMENT: 09/29/95
TRIAL JUDGE: HON. FRANK G. VOLLOR
COURT FROM WHICH APPEALED: WARREN COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: REVERSED AND REMANDED-12/10/98
MOTION FOR REHEARING FILED: 2/19/98
¶1. On February 5, 1998, we issued an unpublished opinion from which Liggins filed the instant Motion for Rehearing. The motion for rehearing is granted. The original opinion is withdrawn and this opinion is substituted therefor. At issue is whether the Warren County Circuit Court, Judge Frank G. Vollor presiding, erred in granting a flight instruction and a Hornburger instruction in the trial below. Upon consideration of such issues, we reverse and remand this case for proper trial procedures.
Procedural History and The Facts
¶2. Raymond Liggins, was indicted jointly with Bernard Brown, in Cause No. 11,966-V, for aggravated assault [Count I] and armed robbery [Count II]. On September 1, 1995, Liggins was found guilty by a jury on both counts, with the jury being unable to agree on life imprisonment in Count II. On September 14, 1995, the court, having entered judgment of conviction on the verdict, sentenced Liggins to concurrent terms of 20 years imprisonment with 5 years thereof suspended, for the aggravated assault [Count I], and 30 years imprisonment with 10 years thereof suspended, for the armed robbery [Count II]. Liggins filed a Motion for Judgment Notwithstanding the Verdict, or in the Alternative a New Trial, both of which were denied. Liggins subsequently filed a timely Notice of Appeal. Liggins argues we erred as to the following issues:
II. WHETHER THE TRIAL COURT ERRED IN GRANTING A FLIGHT INSTRUCTION OVER DEFENSE OBJECTION, THEREBY VIOLATING LIGGINS'S DUE PROCESS RIGHT TO A FAIR AND IMPARTIAL TRIAL UNDER THE FEDERAL AND STATE CONSTITUTIONS?
V. WHETHER THE TRIAL COURT ERRED BY GRANTING STATE JURY INSTRUCTIONS S-1, S-3, AND S-4 NECESSITATING A REVERSAL?
¶3. The evening of September 23, 1994, Wilburn Moffet, Jr., co-manager of a Vicksburg A&P Sav-A-Center, worked after hours to prepare the night deposit. Between 10:30 and 11:00 p.m., Moffett locked the store and went out to his car with the deposit. He saw two men running toward him from around the side of the building. He ran for his car, got in, and slammed the door. At this time, he heard one gunshot which flattened one of the tires of his car. About two seconds later, a second gunshot went off which shattered the window of his car. He played dead and rolled over on the money, but Bernard Brown, who had the shotgun, reached into the car and took the money bag, which contained about $13,000.00. The two men then ran towards the woods. After the robbery, Moffett went back into the store. Moffett could ...