                         IN THE SUPREME COURT OF MISSISSIPPI
                                  NO. 96-CA-00450-SCT
BRIAN RUNNELS
v.
STATE OF MISSISSIPPI
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED,
                        PURSUANT TO M.R.A.P. 35-A
DATE OF JUDGMENT:                               12/21/95
TRIAL JUDGE:                                    HON. LAMAR PICKARD
COURT FROM WHICH APPEALED:                      CLAIBORNE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                         SIM C. DULANEY, JR.
ATTORNEYS FOR APPELLEE:                         OFFICE OF THE ATTORNEY GENERAL

                                                BY: WAYNE SNUGGS
                                                BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY:                              ALEXANDER C. MARTIN
NATURE OF THE CASE:                             CIVIL - POST CONVICTION RELIEF
DISPOSITION:                                    AFFIRMED - 10/23/97
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                 11/13/97




     BEFORE DAN LEE, C.J., PITTMAN AND MILLS, JJ.

     DAN LEE, CHIEF JUSTICE, FOR THE COURT:




                                   STATEMENT OF THE CASE

This case arises on appeal from a denial by the Circuit Court of Claiborne County of Brian Runnels'
("Runnels") Post-Conviction Motion for Judgment Vacating Conviction for Armed Robbery. Runnels
pled guilty to manslaughter and armed robbery. The portion of the indictment dealing with the armed
robbery count failed to conclude with "against the peace and dignity of the State of Mississippi" as
required constitutionally. The lower court refused to vacate Runnels' guilty plea to this count, finding
that he had waived his objection to the indictment by failing to object before the circuit court.
Aggrieved by the decision of the circuit court, Runnels assigns the following as error:
     DOES A DEFENDANT CHARGED WITH ARMED ROBBERY IN THE SECOND
     COUNT OF AN INDICTMENT, FATALLY DEFECTIVE FOR FAILURE TO
     CONCLUDE THE CHARGE WITH THE MANDATED WORDS "AGAINST THE
     PEACE AND DIGNITY OF THE STATE," WAIVE HIS RIGHT TO OBJECT TO HIS
     CONVICTION RESULTING FROM THE ENTRY OF A GUILTY PLEA TO THE
     CHARGE.

After careful examination of the briefs and record in this matter, we affirm the decision of the lower
court.

                                  STATEMENT OF THE FACTS

On January 6, 1995, Brian Runnels was charged by indictment for murder and armed robbery. Count
One charged Runnels with murder and ended with the words "against the peace and dignity of the
State of Mississippi." Count Two, charging Runnels with armed robbery, failed to conclude with the
words "against the peace and dignity of the State of Mississippi" as required by Section 169 of the
Mississippi Constitution.

On April 25, 1995, Runnels entered a guilty plea to the crimes of manslaughter and armed robbery.
The circuit court sentenced Runnels to serve twenty (20) years for the manslaughter and sixteen (16)
years for armed robbery. The sentences were to run consecutively.

One of Runnels' co-defendants, Alonzo Gibson ("Gibson"), was tried on the charges in the same
indictment. Gibson was convicted of manslaughter and armed robbery. The lower court sentenced
Gibson to ten (10) years for manslaughter and life for armed robbery. Upon Gibson's motion, the trial
judge vacated Gibson's conviction for armed robbery because that count of the indictment failed to
conclude with the mandated words "against the peace and dignity of the State of Mississippi."

Upon learning of Gibson's conviction for armed robbery being vacated, Runnels filed his post-
conviction motion for relief on November 1, 1995, petitioning the court to set aside his conviction for
armed robbery on the grounds that the armed robbery count failed to conclude with the
aforementioned constitutionally required phrase. Following arguments, the circuit court denied
Runnels' motion on the grounds that he had waived his right to object to the defect in the indictment
when he voluntarily entered his guilty plea. From this decision, Runnels appeals.

                                   DISCUSSION OF THE LAW

The essential issue presented for our consideration is whether a charge in a multi-count indictment
which does not conclude with the words "against the peace and dignity of the State of Mississippi" is
a defect in form or a defect in substance. Runnels points out that the Mississippi Constitution
mandates that all indictments shall conclude "against the peace and dignity of the state," and further
notes that the Criminal Rules of Circuit Court Practice provide the same edict. Runnels contends that
the failure of a charge on an indictment to include the designated conclusion, supra, is a defect of
substance and is, therefore, fatal to the indictment.

In support of his contention, Runnels first directs our attention to the Texas case of Dunn v. State,
646 S.W.2d 576 (Tex. Ct. App. 1983). In Dunn, the Texas court addressed provisions of the Texas
Code and the Texas Constitution providing that an indictment must conclude with the words "against
the peace and dignity of the state." Id. at 577. Joe Dunn was convicted on the charge of felony theft,
the result of an indictment charging eleven counts of theft. Id. Dunn appealed his conviction,
asserting that there was a fundamental defect in the indictment because portions of the indictment did
not include the mandated conclusion. Id. The Texas court stated that "[i]t is well established that the
omission of the conclusion, though a formal part, is a fatal defect in substance, not a defect of form
alone, and renders the indictment insufficient to support a conviction." Id.

Additionally, Runnels cites this Court's holding in McNeal v. State, 658 So. 2d 1345 (Miss. 1995), in
support of his argument that the flaw in his indictment is one of substance. In McNeal, the portion of
the indictment charging defendant Michael McNeal as an habitual offender was on a separate page
from the rest of the indictment. Id. at 1348-49. The habitual offender charge did not conclude with
the mandated words "against the peace and dignity of the state." Id. at 1348. The State contended
that the flaw was only a technical violation and, therefore, harmless error. Id. at 1349. We reversed,
vacating only McNeal's habitual offender status and stating that "[t]his defect does not affect
McNeal's conviction." Id. at 1350.

Runnels argues that the case at bar parallels McNeal in that the conclusion of count two charging him
with armed robbery is on a separate page of the indictment and the count of the indictment on that
second page fails to conclude with the mandated words "against the peace and dignity of the state."
Runnels maintains that McNeal, as well as Copeland v. State, 423 So. 2d 1333, 1336 (Miss. 1982)
(this Court stated that a substantive defect in an indictment cannot be cured by extrinsic proof and is
not waived by failure to demur), prescribe that the flaw in the instant case is a substantive one and,
therefore, fatal to the indictment.

The State, relying upon Brandau v. State, 662 So. 2d 1051 (Miss. 1995), counters by arguing that
the flaw in the indictment in the case sub judice is one of form and, therefore, subject to amendment
to correct and subject to waiver for failure to demur. In Brandau we held that the flaw was a formal
defect "curable by amendment" and, therefore, "subject to waiver for the failure to demur to the
indictment. . . ." Id. at 1055 (citing Bolen v. State, 309 So. 2d 524 (Miss. 1975), and Moran v.
State, 137 Miss. 435, 102 So. 388 (1925)).

In Brandau, Robert Matthew Brandau was convicted of kidnaping and armed robbery. Brandau,
662 So. 2d at 1053. In his motion for rehearing, Brandau raised for the first time the State's alleged
failure to conclude his indictment with the words "against the peace and dignity of the State of
Mississippi." Id. This Court made a point of distinguishing Brandau's situation from that of McNeal,
emphasizing that McNeal had objected to his indictment at trial and at every step in the appellate
process, while Brandau did not raise the issue until filing his motion for rehearing. Additionally, we
reiterated that McNeal's conviction was not affected, only his habitual offender status. Id. at 1054.
Because of Brandau's failure to object to the form of the indictment at the trial level, the issue was
procedurally barred and his motion for rehearing was denied by this Court. Id. at 1055.

In the instant case, Runnels did not object to the indictment prior to his guilty plea, raising the issue
only after finding out that his co-defendant's jury conviction was vacated because of the omission of
the required conclusion. Because Runnels failed to demur or object to the indictment prior to his
guilty plea, his appeal must fail, pursuant to our holding in Brandau . This issue is without merit.
                                           CONCLUSION

Runnels did not demur or object to the indictment before his plea of guilty. Because of this
insufficiency, Runnels' appeal must fail. We, therefore, affirm the lower court's denial of Runnels'
Post-Conviction Motion for Judgment Vacating Conviction for Armed Robbery.

DENIAL OF POST-CONVICTION RELIEF AFFIRMED.

PRATHER AND SULLIVAN, P.JJ., PITTMAN, BANKS, McRAE, ROBERTS, SMITH AND
MILLS, JJ., CONCUR.
