IN THE SUPREME COURT OF MISSISSIPPI

NO. 97-KA-00941-SCT

THOMAS L. FERRELL

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 07/25/97

TRIAL JUDGE: HON. R. I. PRICHARD, III

COURT FROM WHICH APPEALED: PEARL RIVER COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: BOYCE HOLLEMAN

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: JEAN SMITH VAUGHN

DISTRICT ATTORNEY: RICHARD DOUGLASS

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: REVERSED AND REMANDED - 2/25/99

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 4/12/99

BEFORE PRATHER, C.J., McRAE AND WALLER, JJ.

WALLER, JUSTICE, FOR THE COURT:

STATEMENT OF THE CASE

¶1. This appeal arose from a conviction in the Circuit Court of Pearl River County. Thomas Ferrell was

charged with the murder, on November 19, 1996, of Jonathan Scott Watkins. Ferrell was indicted for

murder on January 29, 1997. He was tried in Pearl River County Circuit Court and convicted of

manslaughter in July, 1997. Circuit Court Judge R. I. Prichard, III, sentenced Ferrell to a term of twenty

years, fifteen years to be served and the last five years suspended. Ferrell moved for a JNOV/New trial

which was denied. Ferrell timely appealed listing the following seven issues:

I. WHETHER JURY INSTRUCTION 7 WAS CONTRARY TO THE LAW AND

PEREMPTORILY INSTRUCTED THE JURY THAT A PERSON MAY BE GUILTY OF

MANSLAUGHTER OR JUSTIFIABLE HOMICIDE

II. WHETHER THE COURT ERRED IN GRANTING JURY INSTRUCTION 18 ON
THE GROUNDS THAT THE SAME WAS IMPROPER UPON THE FACTS OF THIS

CASE AND IS AN IMPROPER STATEMENT OF THE LAW

III. WHETHER JURY INSTRUCTION 5 WAS CONTRARY TO THE LAW AND

PROVIDED THE JURY WITH AN ERRONEOUS DEFINITION OF IN THE "HEAT OF

PASSION"

IV. WHETHER THE COURT ERRED IN GRANTING JURY INSTRUCTION 8 ON THE

GROUNDS THAT THE SAME WAS IMPROPER UPON THE POSITIVE TESTIMONY

OF THE STATE'S OWN WITNESSES THAT THE DEFENDANT HAD BECOME A

TRESPASSER AFTER BEING ASKED TO LEAVE THE PREMISES OF THE

DEFENDANT AND REFUSING TO DO SO

V. WHETHER THE COURT ERRED IN GRANTING JURY INSTRUCTION 9 ON THE

GROUNDS THAT THE SAME WAS IMPROPER UPON THE FACTS OF THIS CASE

AND CLEAR LAW. FURTHER, THE SAME IS CONFUSING AND CONTRADICTORY

TO THE FACTS AND DEFENDANT'S RIGHT OF SELF DEFENSE

VI. WHETHER THE COURT ERRED IN FAILING TO SUSTAIN THE DEFENDANT'S

MOTION FOR DIRECTED VERDICT OF ACQUITTAL ON THE CHARGE OF

MURDER AS SET FORTH IN THE INDICTMENT; THE COURT ERRED IN

SUBMITTING THE ISSUE OF MURDER TO THE JURY; THE COURT ERRED IN

SUBMITTING THE ISSUE OF MURDER AND ALTERNATIVE LY MANSLAUGHTER

TO THE JURY ALLOWING A COMPROMISE VERDICT WHEN THE EVIDENCE

AND LAW CLEARLY DID NOT SUPPORT A MURDER CHARGE; THE COURT

ERRED IN GRANTING JURY INSTRUCTION 4 AND JURY INSTRUCTION 7 ON

MURDER

VII. WHETHER THE VERDICT IS AGAINST THE OVERWHELMING WEIGHT OF

THE EVIDENCE; THE COURT ERRED IN FAILING TO GRANT JURY

INSTRUCTION NO. D-1; THE FAILURE TO GRANT THE MOTION FOR A NEW

TRIAL WAS ERROR; THE VERDICT WAS AGAINST THE OVERWHELMING

WEIGHT OF THE EVIDENCE

FACTS OF THE CASE

¶2. Tom and Jennifer Ferrell had an after-Halloween party Friday night, November 1, 1996. The shooting

victim, Scotty Watkins, arrived around 7:00 or 8:00 p.m. accompanied by his girlfriend, Stacy Ladner.

Watkins and Ladner had been invited to the party by Ferrell. Although versions of what happened after

Watkins arrived differ somewhat, witness descriptions of the basic facts are the same.

¶3. By the time the party was fully underway, Ferrell, Watkins and most of the other guests were

intoxicated to some degree. Several witnesses testified Watkins was very intoxicated and belligerent.

¶4. Deputy Sheriff Charles Clark went to Ferrell's house at 10:48 p.m. when neighbors called to complain

about the party noise. Ferrell and Watkins met Clark's car when Clark drove up to the house. Clark stated

Watkins was "extremely intoxicated" when he spoke with him. The shirtless Watkins staggered around and

swayed back and forth by the deputy's car.
¶5. Not long after the deputy left, Ferrell had to break up a fight between Watkins and another guest. After

the fight, Ferrell asked Watkins and the other guest to leave. Watkins refused, saying he was not going to

leave the party until the keg was empty. Watkins also stated he was "going to kick Tom's [Ferrell's] ass."

With his gun, Ferrell fired several "warning shots" into the floor and ceiling of his kitchen to frighten Watkins

into leaving. Watkins continued to refuse to leave.

¶6. After Ferrell fired the shots, he and Watkins began to fight. The fight started in the kitchen and moved

to the backyard. Two party guests pushed Ferrell and Watkins through the kitchen door and down the

back steps. Very shortly after the two men hit the ground, Watkins was shot.

¶7. When the shot was fired, Ferrell was on the ground, either on his back or in a crouched position,

holding the gun. Watkins was on top of him. Dr. Steven Hayne, the State's expert in forensic pathology,

stated Watkins's wounds were consistent with someone who was shot from a distance of at least twelve

inches away. He also stated Watkins had a blood alcohol content of between .21 and .33 when he died.

¶8. When Watkins was shot, he stood up and backed away from Ferrell. Ladner came into the backyard

just after the shot was fired. She stated Watkins looked at her and said, "Baby, I can't believe he shot me."

Watkins then fell to the ground. Efforts to resuscitate him failed, and he died.

DISCUSSION OF LAW

¶9. Because our decision on Issue I is determinative and because Issues II through VII have no merit, we

will only address Ferrell's first assignment of error.

I. WHETHER JURY INSTRUCTION 7 WAS CONTRARY TO THE LAW AND

PEREMPTORILY INSTRUCTED THE JURY THAT A PERSON MAY BE GUILTY OF

MANSLAUGHTER OR JUSTIFIABLE HOMICIDE

¶10. Ferrell argues the trial judge erred in submitting Instruction 7 to the jury. He contends the instruction

was peremptory because it directed the jury to find Ferrell guilty of either manslaughter or murder and

precluded a finding of justifiable homicide. Ferrell's argument is well taken, and on this issue we reverse and

remand for a new trial.

¶11. Instruction 7 as submitted to the jury reads:

The Court instructs the jury that a person may be guilty only of manslaughter or justifiable homicide

when killing another even though the accused is angry and is bearing ill will toward his adversary at the

time of the killing, if the killing is done while resisting an attempt of the deceased to do any unlawful

act, or immediately after such attempt shall have failed, if such anger or ill will is brought about by the

particular circumstances of the unlawful act then being attempted, or the commission of which is then

thwarted, and the ill will is nonexistent prior to the unlawful act. Therefore, if you find from the

evidence and testimony presented that the deceased Jonathan Watkins had, at the time of the killing,

become a trespasser in the defendant's home and had refused to leave, and that the defendant did not

possess the deliberate design to kill the decedent prior to the decedent's becoming a trespasser, but

that the defendant killed the deceased either while attempting to resist the deceased's unlawful

trespass or as an immediate result thereof, then you may not find the defendant guilty of murder, but

should consider only the lesser-included offense of manslaughter.
¶12. Much of the language in Instruction 7 is taken from this Court's decision in Bangren v. State, 196

Miss. 887, 897 17 So. 2d 599, 600 (1944):

A person may be guilty only of manslaughter or justifiable homicide when slaying another even though

the accused is mad and is bearing ill will toward his adversary at the time of the killing, if the act is

done while resisting an attempt of the latter to do any unlawful act, or after such attempt shall have

failed, if such anger or ill will is engendered by the particular circumstances of the unlawful act then

being attempted, or the commission of which is then thwarted, and is nonexistent prior thereto. Each

case must depend upon its own facts and circumstances. . . .

¶13. The key difference between the language in Bangren and the language in Instruction 7 is the last

phrase in Instruction 7 which instructs the jury to find the defendant guilty of manslaughter if it finds Ferrell

killed Watkins while resisting Watkins's unlawful trespass. This phrase prevented the jury from returning a

finding of justifiable homicide and left it with the choice of either murder or manslaughter.

¶14. Ferrell also argues the language from Bangren quoted in Instruction 7 is confusing and in conflict with

established law. In Bangren, the Court used the phrase, "A person may be guilty only of manslaughter or

justifiable homicide." Bangren, 198 Miss. at 897, 17 So. 2d at 600. The use of this language gives the

impression that justifiable homicide, like manslaughter, is a crime that is in some way punishable upon a

finding of guilt. It is not. See Miss Code Ann. § 97-3-15 (Supp. 1994)

[O]ur law provides that the killing of a human being is not unlawful when committed in the defense of

one's own person where there be reasonable grounds to apprehend a design on the part of the person

killed to do some great personal injury and coupled with imminent danger of such design being

accomplished. Miss. Code Ann. § 97-3-15(f) (Supp. 1984). Such a killing is in our law labeled

justifiable homicide and is not punishable.

Burge v. State, 472 So. 2d 392, 395 (Miss. 1985).

¶15. No jury should be instructed that a person may be found guilty of justifiable homicide. To the extent

we have approved this language in prior cases, see Smith v. State, 463 So. 2d 1028, 1030 (Miss. 1984);

Colvin v. State, 431 So. 2d 1134, 1136 (Miss. 1983); Harrell v. State, 218 So. 2d 883, 886 (Miss.

1969); Bangren v. State, 196 Miss. 887, 897, 17 So. 2d 599, 600 (1944), those cases are overruled.

CONCLUSION

¶16. We reverse and remand for a new trial because jury Instruction 7 was improper. Instruction 7 did not

adequately distinguish between manslaughter and justifiable homicide. Instruction 7 was also peremptory

because it directed the jury to find either murder or manslaughter and did not allow for a finding of justifiable

homicide. Accordingly, we reverse the judgment of the Pearl River County Circuit Court and remand this

case for a new trial consistent with this opinion.

¶17. REVERSED AND REMANDED FOR NEW TRIAL CONSISTENT WITH THIS

OPINION.

PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS AND McRAE, JJ., CONCUR.

SMITH, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY ROBERTS
AND MILLS, JJ.

SMITH, JUSTICE, DISSENTING:

¶18. The majority holds that the trial judge erred in submitting Instruction 7 to the jury because the

instruction directed the jury to find Ferrell guilty of either manslaughter or murder and precluded a finding of

justifiable homicide. I disagree and accordingly dissent.

¶19. First, Ferrell only objected to Instruction 7 as being peremptory on manslaughter at trial. He failed to

raise specific complaints that the jury was not given the option of considering murder or justifiable homicide.

The failure to raise the specific objections now claimed should act as a bar to this Court's consideration. In

Oates v. State, 421 So. 2d 1025, 1030 (Miss. 1982) (citing Collins v. State, 368 So. 2d 212 (Miss.

1979)), this Court stated, "Errors based on the granting of an instruction will not be considered on appeal

unless specific objections stating the grounds are made in the trial court." Id. Additionally, Ferrell failed to

raise specific objections to some issues that he raises now for the first time. He is thus barred. Ballenger v.

State, 667 So.2d 1242, 1252 (Miss. 1995); Billiot v. State, 454 So. 2d 445, 462 (Miss. 1984). The

trial court will not be placed in error on an issue not placed before it. Shavers v. State, 455 So. 2d 1299,

1302 (Miss. 1984) (citing Ponder v. State, 335 So.2d 885 (Miss.1976)).

¶20. Second, if all of the instructions of law are considered and read in conjuction with each other, and not

in isolation, this jury was properly instructed regarding murder, manslaughter, accident, self-defense and

justifiable homicide. Instruction 7 must be read in its entirety and considered when looking at all other

instructions as a whole. Mackbee v. State, 575 So.2d 16, 34 (Miss.1990); Jackson v. Griffin, 390

So.2d 287, 290 (Miss.1980); Alexander v. State, 250 So.2d 629, 632 (Miss.1971). Furthermore, a

court's jury instructions "will not warrant reversal if the jury was fully and fairly instructed by other

instructions." Collins v. State, 594 So.2d 29, 35 (Miss.1992); Laney v. State, 486 So.2d 1242, 1246

(Miss.1986); Williams v. State, 667 So.2d 15, 24 (Miss.1996).

¶21. An examination of each of the applicable instructions is thus warranted. In so doing, we note that Jury

Instruction 10 advised the jury of the nature of self defense. Jury Instruction 4 advised the jury of the

elements of deliberate design murder. Instruction S-2 instructed the jury regarding manslaughter, without

malice and in the heat of passion. Instruction S-3 instructed the jury concerning the elements of trespass.

Instruction D-19 instructed the jury regarding Ferrell's right to use reasonable force to eject the victim from

his home. Instruction 18 defined accident. Ferrell claims that Instruction 7 conflicts with Instruction 18

because no burden of proof was included. However, Instruction 19 instructed the jury regarding murder

and manslaughter as requiring proof by the State of evidence beyond a reasonable doubt. Ferrell claims that

the accident instruction is confusing, but he failed to offer any alternatively language, or a different

instruction. Ferrell also claims that Instruction 7 is in conflict with Instruction 13, an instruction which Ferrell

himself tendered to the court. Ferrell appears to be claiming the the jury was not presented with a self

defense instruction. This completely ignores that Instruction 10 covered the theory of self defense.

Considering all of the jury instructions as a whole, this jury was properly instructed as to deliberate design
murder, manslaughter, or a verdict of not guilty. The jury chose manslaughter.

¶22. I respectfully dissent.

ROBERTS AND MILLS, JJ., JOIN THIS OPINION.