Barnes v. State, 55109

• Decision Date: 31 October 1984
• Docket Number: No. 55109,55109
• Citation: 457 So.2d 1347
• Parties: Rachel Henderson BARNES v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1347

457 So.2d 1347

Rachel Henderson BARNES v. STATE of Mississippi.

No. 55109.

Supreme Court of Mississippi.

Oct. 31, 1984.

T. Larry Wilson, Ransom P. Jones, III, Pascagoula, for appellant.

Edwin Lloyd Pittman, Atty. Gen. by Walter L. Turner, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before ROY NOBLE LEE, P.J., and DAN M. LEE and ROBERTSON, JJ.

DAN M. LEE, Justice, for the Court:

This appeal stems from a shooting incident which occurred in front of Freeman's Bar in Pascagoula. As a result of that shooting the appellant, Rachel Henderson Barnes was found guilty in the Circuit Court of Jackson County of the murder of Audrey Faye Malone Stevens. Ms. Barnes was subsequently sentenced to a term of life imprisonment in the custody of the Mississippi Department of Corrections.

It is undisputed that Ms. Barnes fired the two pistol shots which killed Ms. Stevens; however, there is considerable dispute as to who the aggressor was at the time of the shooting. Four of the state's witnesses testified that Stevens made no threatening actions toward Barnes. Three other witnesses, including Barnes, testified that Stevens provoked Barnes and attacked her with various implements including a knife and liquor bottles. Obviously, Barnes' claim that she shot Stevens in self defense was critical to her case. For that reason she objected to, and now assigns as error, the granting of Instruction S-5 which reads:

The Court instructs the Jury that if a person provokes a difficulty, arming himself in advance and intending, if necessary, to use his weapon and overcome his adversary, he becomes the aggressor and deprives himself of the right of self defense. It is within the sole province of the Jury to determine who the aggressor was in this case.

In other words, if you find from the evidence in this case beyond a reasonable doubt that the Defendant, Rachel Barnes, provoded (sic) a difficulty, arming herself in advance and intending, if necessary, to use her weapon to overcome the victim, Audrey Faye Malone Stevens, then the Defendant, Rachel Barnes, became the aggressor and is then deprived of the right of self defense.

On numerous occasions this Court has cautioned that an instruction such as S-5 is to be given only in exceedingly rare circumstances where the facts of the case meet all of the elements necessary to cut off a defendant's right to claim self defense. In McMullen v. State, 291 So.2d 537 (Miss.1974) this Court addressed the issue and held:

The second instruction is in the following language:

"The Court instructs the jury for the State that the law of self-defense as defined in the instructions presented to them by the State of Mississippi and by the defendant does not imply the right of attack. If you believe from the evidence in this case that the Defendant, Olia Mae McMullen, armed herself with a deadly weapon and sought the deceased with the formed felonious intent of invoking a difficulty with the deceased, or brought on, or voluntarily entered into and [sic] difficulty with the deceased, Tommie Kirkwood, Jr., with the felonious intent to kill and murder the deceased then, the Defendant, Olia Mae McMullen, cannot invoke the law of self-defense no matter how imminent or urgent the peril, in which she found herself."

A similar instruction was granted in Tate v. State, 192 So.2d 923 (Miss.1966). This Court held that the instruction substantially restricted or cut off appellant's right to defend upon the ground of self-defense and was, therefore, erroneous. The Court said:

"In Lofton v. State, 79 Miss. 723, 31 So. 420 (1901) this Court said:

"... This form of charge, declaring a defendant estopped to plead self-defense, is an exceedingly unwise one to be given. We have repeatedly condemned it, ... It can never be proper, save in the few, very, rare cases where the case is such, on its facts, that a charge can be given embracing all the elements--not part of them, nor nearly all of them--essential to the estoppel." 79 Miss. at 734, 31 So. at 421." 192 So.2d at 924.

An almost identical instruction to the one in issue was held to be erroneous in Ellis v. State, 208 So.2d 49 (Miss.1968) and in the recent case of Craft v. State, 271 So.2d 735 (Miss.1973).

In Patrick v. State, 285 So.2d 165 (Miss.1973) the appellant argued that his right to plead self-defense was cut off by one of the State's instructions. The Court stated:

"... [W]e reiterate and reemphasize what has already been said many times by this Court, and that is that it is a rare occasion when an instruction cutting off the right of self-defense is proper in a murder prosecution." 285 So.2d at 168.

In light of...