                         IN THE SUPREME COURT OF MISSISSIPPI
                                  NO. 97-KA-00641-SCT
CHARLES McDONALD a/k/a CHARLES W.
McDONALD a/k/a CHARLES WILLIAM McDONALD
v.
STATE OF MISSISSIPPI

DATE OF JUDGMENT:                              05/12/97
TRIAL JUDGE:                                   HON. BILLY JOE LANDRUM
COURT FROM WHICH APPEALED:                     JONES COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                        ANTHONY J. BUCKLEY
ATTORNEYS FOR APPELLEE:                        OFFICE OF THE ATTORNEY GENERAL
                                               BY: BILLY L. GORE
DISTRICT ATTORNEY:                             JEANNENNE T. PACIFIC
NATURE OF THE CASE:                            CRIMINAL - FELONY
DISPOSITION:                                   REVERSED AND REMANDED - 7/23/98
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                8/17/98




     BEFORE PITTMAN, P.J., McRAE AND MILLS, JJ.


     MILLS, JUSTICE, FOR THE COURT:




                                  STATEMENT OF THE CASE

¶1. Charles McDonald was indicted in the Circuit Court of Jones County for the murder of Elijah
Adams on January 22, 1997. He was convicted of manslaughter on April 14, 1997. McDonald was
thereafter sentenced to serve a term of twenty years in the custody of the Mississippi Department of
Corrections. Aggrieved by the lower court proceedings, McDonald brings five separate assignments
of error. We find that the lower court erred in failing to grant the "no retreat" jury instruction
requested by the defendant, and thus, reverse and remand for a new trial. Accordingly, we address
only the first two assignments of appeal, finding the final three assignments to be moot.

                                              ISSUES

I. WHETHER THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION
TO QUASH THE INDICTMENT FOR WANT OF THE WORD "DID."

II. WHETHER THE TRIAL COURT ERRED IN DENYING A "NO RETREAT"
INSTRUCTION.

                                               FACTS

¶2. Charles McDonald, John House and Glenn Clinton stopped at the intersection of Bay and Pine
Streets in Laurel, Mississippi on November 9, 1996 to allow Clinton to fetch a barrel from his uncle's
house.

¶3. Across the street, behind a house in close proximity to McDonald's van, a number of men were
drinking, gambling and engaging in general mischief. They had been doing so for "some hours." Chief
among these congregants were Antonio Jones and Elijah Adams. Clinton re-entered the van which
Jones had recognized as McDonald's. Jones approached the departing vehicle in order to settle a
vendetta apparently prompted by his belief that McDonald had run Adams' cousin off the road a few
weeks earlier. Jones was followed soon thereafter by Adams, shouting profanity and heated
accusations. As expected, Adams' accusations led to threats of physical violence which culminated in
Adams twice slapping McDonald, seated in the driver's seat, in the face, while Jones attempted to
open the driver's side door. House testified that Jones extended his arm into his pants at some point
during this sequence of events, as if reaching for a gun.

¶4. The force of Adams' blows knocked McDonald between the driver's and passenger's seats.
McDonald recoiled to his original upright position with a pistol he had hidden between the seats for
personal protection. In one quick motion, McDonald faced Adams, fired one fatal shot into his chest,
and sped away.

¶5. House recalled the incident as follows:

     And Shawn [Jones] come to the van talking about he was gonna mess him up, using foul
     language and stuff - - you know - - they had a couple of words. About that time Cricket
     [Clinton] come around and got in the van and we're easing up the road, and he started talking
     about he was going to get the man and what he was gonna do to the man and stuff like that.

     So we're easing on up the road and about that time Pee Wee [Adams] jumped up from the card
     table and come out telling Shawn to take care of everything, that he had his back - -

     ***

     - - that he had his back and they were going to take care of Charles, they were going to do this
     and hurt him and stuff like that, you know. He kept on coming to the van and when he got close
     to the van, he reached into the van and slapped Mr. McDonald.

     ***

     He reached in and slapped him the first time, he pushed him back, and he jumped back in front
     of the van and then he reached in there again and slapped him again. He was trying to swing on
     him and Shawn was trying to open the door.
     By that time, he reached in there and slapped him again and he fell over - - Mr. McDonald fell
     over, he come up, shot down downward like that, Shawn jumped toward the back, Pee Wee
     jumped toward the front. He pulls up and they were standing back up cussing, or whatever they
     was doing, and about that time a shot went off and it hit the van. We pulled on off. I laid down
     in the back and we went on off back to his house.

I. WHETHER THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION
TO QUASH THE INDICTMENT FOR WANT OF THE WORD "DID."

¶6. The grand jury indictment of McDonald reads as follows:

     The Grand Jurors of the State of Mississippi, taken from the body of the good and lawful Jurors
     of said County, duly elected, empaneled, sworn and charged, at the Term aforesaid of the Court
     aforesaid, to inquire in and for the body of the County aforesaid, in the name and by the
     authority of the state of Mississippi, upon their oaths present: That Charles W. McDonald, in
     the Second Judicial District, Jones County, on or about the 09 th day of November in the year of
     our Lord, 1996, in the County and State aforesaid, unlawfully, willfully and feloniously kill and
     murder one Elijah Adams, a human being, against the peace and dignity of the State of
     Mississippi.

¶7. McDonald, citing Kelly v. State, 204 Miss. 79, 36 So.2d 925 (1948), claims that the failure to
precede the word "unlawfully" in this indictment with the word "did" renders the entire indictment
unlawful and void. His strict reliance upon Kelly lacks persuasiveness.(1) "So long as from a fair
reading of the indictment taken as a whole the nature and cause of the charge against the accused are
clear, the indictment is legally sufficient." Henderson v. State, 445 So.2d 1364, 1368 (Miss.1984).

¶8. The indictment in the case sub judice clearly charges Charles W. McDonald with the murder of
Elijah Adams. It gives the date of the alleged crime. It charges that the crime occurred within the
Second Judicial District of Jones County. Finally, it sets forth the requisite mental state for murder as
"willfully."

¶9. In short, the indictment against McDonald is adequate under Rule 7.06. It notifies him of "the
essential facts constituting the offense charged" in language which is "plain, concise and definite."
Excluding the verb "did" from the indictment was mere oversight. This assignment of error is without
merit.

II. WHETHER THE TRIAL COURT ERRED IN DENYING A "NO RETREAT"
INSTRUCTION.

¶10. McDonald's proposed jury instruction D-8 was refused by the trial judge on the basis of being an
incorrect summary of law. It reads as follows:

     The court instructs the jury that while the danger which will justify the taking of another's life
     must be imminent, impending, and present, such danger need not be unavoidable except by
     killing in self-defense. The defendant, Charles McDonald, need not have avoided the danger to
     his person presented by the deceased, Elijah Adams and Antonio Jones and or others, by flight.
     Though Charles McDonald was on premises not his home, so long as Charles McDonald was in
     a place where he had the right to be and was neither the immediate provoker or aggressor, he
     may stand his ground without losing the right of self-defense.

¶11. This Court has held that "a defendant is not deprived of the right to claim self-defense in a
slaying even if he could have avoided the threat to his safety by fleeing." Haynes v. State, 451 So.2d
227, 229 (Miss.1984). In fact, Haynes itself held it error for the trial judge to have refused an
instruction practically identical to the instruction offered here.(2) This Court revisited this issue in
Cook v. State, 467 So.2d 203, 210-11 (Miss.1985), wherein we reaffirmed the well entrenched
principle of Long v. State, 52 Miss. 23, 34 (1876):

     Flight is a mode of escaping danger to which a party is not bound to resort, so long as he is in a
     place where he has a right to be, and is neither engaged in an unlawful, nor the provoker of, nor
     the aggressor in, the combat. In such case he may stand his ground and resist force by force,
     taking care that his resistance be not disproportioned to the attack.

467 So.2d at 210 ( quoting Haynes, 451 So.2d at 229).

¶12. McDonald did not immediately instigate the fatal altercation in this case. Jones and Adams did.
Additionally, House's testimony indicates that the van was actually moving at a snail's pace
immediately preceding and during the shooting. The jury could have reasonably wondered why
McDonald did not race away. The prosecutor emphasized this point time and again in his closing
argument. "He had every means of just driving off and everything would have been fine. Charles
McDonald could have left. Why didn't they go on? All he had to do was get out of the way."

¶13. In short, failure to instruct the jury regarding the defendant's failure to retreat was error.
"Whenever, from the facts of the case, it appears that the defendant could have avoided the fatal
difficulty only by precipitous retreat, but did not leave, if the other requisite factors are present as
stated in Long, supra, then the defendant is entitled to [a no retreat] instruction." Haynes, 451 So.2d
at 229. Such is the situation in the case at bar. Therefore, we reverse and remand for a new trial.

¶14. REVERSED AND REMANDED.

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




1. We have previously footnoted the diminished strength of the line of older cases that require an
"extremely strict interpretation be given criminal indictments." We reemphasize the deflation of Kelly
v. State, 204 Miss. 79, 36 So.2d 925 (1948) and other pre-Rule 7.06 cases. See Henderson v. State,
445 So.2d 1364, 1368 n. 4 (Miss.1984).

2. The instruction in Haynes reads as follows:

     The court instructs the jury that while the danger which will justify the taking of another's life
     must be imminent, pending, and present, such danger need not be unavoidable except by killing
     in self-defense. The court instructs the jury that the accused, Bobby Lee Haynes, need not have
     avoided the danger to his person presented by the deceased, John Mitchell, by flight. So long as
     the defendant was in a place where he had the right to be and was not the immediate provoker
     and aggressor, he may stand his ground without losing the right of self-defense.

Haynes, 451 So.2d at 229.
