                            IN THE SUPREME COURT OF MISSISSIPPI
                                     NO. 92-KA-01228-SCT
TIMOTHY ANDREW TAIT
v.
STATE OF MISSISSIPPI

DATE OF JUDGMENT:                      10/30/92
TRIAL JUDGE:                           HON. JAMES W. BACKSTROM
COURT FROM WHICH                       JACKSON COUNTY CIRCUIT COURT
APPEALED:
ATTORNEY FOR APPELLANT:                DAVID M. ISHEE
ATTORNEY FOR APPELLEE:                 OFFICE OF THE ATTORNEY GENERAL

                                       BY: CHARLES W. MARIS, JR.
DISTRICT ATTORNEY:                     NA
NATURE OF THE CASE:                    CRIMINAL - FELONY
DISPOSITION:                           AFFIRMED IN PART, REVERSED AND REMANDED IN
                                       PART - 2/22/96
MOTION FOR REHEARING
FILED:
MANDATE ISSUED:                        3/14/96




      EN BANC.


      SMITH, JUSTICE, FOR THE COURT:




¶1. Timothy Andrew Tait was indicted by the Jackson County Grand Jury in its April 1992 Term for
murdering Christopher Canon on September 20, 1991, while Tait was engaged in acts imminently
dangerous to others and evincing a depraved heart, regardless of human life, although, without any
premeditated design to effect the death of any particular person, in violation of section 97-3-19(1)(b) of the
Mississippi Code. Tait was tried in the Circuit Court of Jackson County, and the jury returned a verdict
finding Tait guilty of murder. The lower court sentenced Tait to serve a term of life imprisonment and to pay
all costs.

¶2. Aggrieved, Tait appeals to this Court, raising nine issues, of which only Issues I and II warrant
discussion. These two issues overlap and are considered together. Tait argues that the weight and
sufficiency of the evidence did not support a conviction of murder and that if his conduct constituted any
crime at all, that crime would be manslaughter. Tait failed to offer any manslaughter instruction but the State
offered and was given a heat of passion manslaughter instruction. We find no merit to any of Tait's issues.
After thorough consideration we find beyond a reasonable doubt that Tait's conduct constituted the crime
of manslaughter by culpable negligence and therefore we affirm on that crime. Tait's conviction for murder is
reversed and this case is remanded to the Jackson County Circuit Court for resentencing on culpable
negligence manslaughter.

                                    STATEMENT OF THE FACTS

¶3. On September 20, 1991, Timothy Tait, Germelle Washington and his brother, Jeffrey Triplett, Chris
Cannon, and Regis Crawford were hanging out at an apartment in Kreole. All that day, Tim and Chris were
playing with a gun. Tim and Chris had been close friends for about eight or nine years.

¶4. About four or five o'clock in the afternoon, Tim picked up a bracelet and asked Chris if he could wear
it. Chris said he could not, and the two started joking around and horseplaying. Tim grabbed the gun and
cocked it. He put it to Chris's head, and the gun went off. When that happened, Germelle Washington, who
had been standing beside Tim and Chris putting his clothes on, ran outside and told the others to call the
ambulance. Tim fell to the ground and started crying.

¶5. At approximately 4:45 p.m. on September 20, 1991, Officer Stanley Pritchett, a patrolman with the city
of Moss Point, responded to a call he received while on duty. The call indicated that shots were fired in the
Colonial Estate Apartments. When he arrived at the apartments, he was directed to Apartment 9. The front
door was standing open and when he walked in, two males were lying on the floor in the front room on the
right. One had a serious head wound. The male with the head wound was Chris Cannon. The other male
was Timothy Tait. Tait was holding his head, sobbing, and saying, "I killed him. Oh, my God, I killed him. I
shot him."

¶6. Officer Pritchett picked up a pistol which was laying in plain view by the coffee table. Approximately
five or six minutes later, he turned the pistol over to the investigator, Richard Cushman. Cushman turned the
gun over to Sergeant John Gaffney. The gun was a five-shot revolver. It contained one spent round, two
empty chambers with no bullets, and two live rounds which had not yet been fired.

¶7. Dr. Paul McGarry performed the autopsy on Cannon. The cause of death was a gunshot into the
forehead. Sergeant Gaffney received the projectile which Dr. McGarry removed from Cannon's head.
Gaffney sent the projectile and the pistol to the Mississippi Crime Lab.

¶8. Steve Byrd, a forensic scientist specializing in firearms evidence examinations at the Mississippi Crime
Lab, examined the pistol and the projectile. He determined that the projectile had at some point in time
been fired from the pistol.

                                         DISCUSSION OF LAW


      I. DID THE TRIAL COURT ERR IN OVERRULING TAIT'S MOTION FOR
      DIRECTED VERDICT, IN DENYING HIS REQUEST FOR A PEREMPTORY
      INSTRUCTION OF NOT GUILTY AND IN OVERRULING HIS MOTION FOR
      JUDGMENT NOTWITHSTANDING THE VERDICT AS THE WEIGHT AND
     SUFFICIENCY OF THE EVIDENCE DID NOT SUPPORT A CONVICTION OF
     MURDER?

     II. IF THE CONDUCT OF THE APPELLANT CONSTITUTED ANY CRIME AT ALL,
     WOULD THAT CRIME BE MANSLAUGHTER, NOT MURDER?

¶9. Tait contends that his actions in killing Canon did not evince a depraved heart. He says that his conduct
could at most be described as negligence constituting manslaughter. He appeals the denial of his motion for
directed verdict, his request for a peremptory instruction, and his motion for judgment notwithstanding the
verdict.

¶10. The standard to be used in considering a motion for judgment notwithstanding the verdict on appeal is
as follows:


     The motion for judgment of acquittal notwithstanding the verdict tests the legal sufficiency of the
     evidence supporting the verdict of guilty. It is a renewal of the defendant's request for a peremptory
     instruction made at the close of all the evidence. It asks the court to hold, as a matter of law, that the
     verdict may not stand. May v. State, 460 So.2d 778, 780-81 (Miss.1984).

     Where a defendant has moved for j.n.o.v., the trial court must consider all of the evidence-not just the
     evidence which supports the state's case-in the light most favorable to the state. May v. State, 460
     So.2d 778, 781 (Miss.1984). The state must be given the benefit of all favorable inferences that may
     reasonably be drawn from the evidence. Glass v. State, 278 So.2d 384, 386 (Miss.1973). If the
     facts and inferences so considered point in favor of the defendant with sufficient force that reasonable
     men could not have found beyond a reasonable doubt that the defendant was guilty, granting the
     motion is required. On the other hand, if there is substantial evidence opposed to the motion, that is,
     evidence of such quality and weight, that, having in mind the beyond a reasonable doubt burden of
     proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different
     conclusions, the motion should be denied and the jury's verdict allowed to stand. May v. State, 460
     So.2d 778, 781 (Miss.1984).

     In other words, once the jury has returned a verdict of guilty in a criminal case, we are not at liberty to
     direct that the defendant be discharged, short of a conclusion on our part that the evidence, taken in a
     light most favorable to the verdict, no reasonable, hypothetical juror could find beyond a reasonable
     doubt that the defendant was guilty. [citations omitted].

Steele v. State, 544 So.2d 802, 808 (Miss.1989) (quoting Pharr v. State, 465 So.2d 294, 301
(Miss.1984)); see also Gray v. State, 549 So.2d 1316, 1318-19 (Miss.1989). The standard for
reviewing a denial of a directed verdict and a peremptory instruction is the same as that for a denial of a
judgment notwithstanding the verdict. Alford v. State, 656 So.2d 1186, 1189 (Miss.1995). On appeal,
this Court reviews the lower court's ruling when the legal sufficiency of the evidence was last challenged.
Smith v. State, 646 So.2d 538, 542 (Miss.1994) (quoting Wetz v. State, 503 So.2d 803, 807-08, n. 3
(Miss.1987)).

¶11. The defendant was indicted and convicted under section 97-3-19(1)(b) of the Mississippi Code which
provides that the killing of a human being shall be murder:
     (b) When done in the commission of an act eminently dangerous to others and evincing a depraved
     heart, regardless of human life, although without any premeditated design to effect the death of any
     particular individual.

¶12. Subsection (b) of section 97-3-19(1) subsumes subsection (a) which defines murder as that which is
done with deliberate design to effect the death of the person killed, or of any human being. Hurns v. State,
616 So.2d 313, 321 (Miss.1993). "As a matter of common sense, every murder done with deliberate
design to effect the death of another human being is by definition done in the commission of an act
imminently dangerous to others and evincing a depraved heart, regardless of human life." Mallett v. State,
606 So.2d 1092, 1095 (Miss.1992).

¶13. Mississippi's depraved heart murder statute has been construed by this Court as encompassing "a
reckless and eminently dangerous act directed toward a single individual." Windham v. State, 602 So.2d
798, 802 (Miss.1992). Although a conviction of murder requires a showing of malice,

     the sense of the word malice is not only confined to a particular ill-will to the deceased [such as anger,
     hatred, and revenge], but is intended to denote ... an action flowing from a wicked and corrupt
     motive, a thing done malo animo, where the fact has been attended with such circumstances as carry
     in them the plain indications of a heart regardless of social duty and fatally bent upon mischief. [And
     therefore malice is implied from any deliberate, cruel act against another, however sudden ].

Id. at 802 (quoting Johnson v. State, 475 So.2d 1136, 1139 (Miss.1985)).

¶14. In Blanks v. State, 547 So.2d 29 (Miss.1989), the defendant, an eleventh grader, initially denied
knowing anything about the death of his friend who was killed by a gunshot in the head. Later, he said that
he had killed his friend accidentally when he got out his mother's pistol to show his friend how to work it
and that he lied initially because he was scared and confused. The defendant was indicted under the
depraved heart statute. The jury was instructed on depraved heart murder as well as manslaughter by
culpable negligence and returned a verdict of guilty of manslaughter. Although the defendant was convicted
of manslaughter, this Court held that a jury issue was created as to whether the defendant was guilty of
depraved heart murder because his conduct of moving and dumping the body and his initial statements
denying the killing were not consistent with an accidental killing. Id. at 34.

¶15. In the present case, the jury was instructed with regard to manslaughter as well as being instructed as
to depraved heart murder. In jury instruction S-4A, the jury was instructed to find the defendant guilty of
manslaughter if 1) Christopher Canon was a living person, and 2) he died as a result of the defendant
shooting him "without malice while in the heat of passion but in a cruel or unusual manner, or by the use of a
dangerous weapon, without authority of law and not in necessary self-defense." This instruction tracks the
language of section 97-3-35 of the Mississippi Code. Heat of passion has been defined by this Court as:

     In criminal law, a state of violent and uncontrollable rage engendered by a blow or certain other
     provocation given, which will reduce a homicide from the grade of murder to that of manslaughter.
     Passion or anger suddenly aroused at the time by some immediate and reasonable provocation, by
     words or acts of one at the time. The term includes an emotional state of mind characterized by anger,
     rage, hatred, furious resentment or terror.

Buchanan v. State, 567 So.2d 194, 197 (Miss.1990).
¶16. The defendant did not request an instruction on manslaughter. Section 97-3-47 of the Mississippi
Code provides that "[e]very other killing of a human being, by the act, procurement, or culpable negligence
of another, and without authority of law, not provided for in this title, shall be manslaughter." Factually, the
cases which are similar to the present case have usually been considered in the context of manslaughter by
culpable negligence. In Strode v. State, 406 So.2d 820, 822 (Miss.1981), this Court held that evidence
that the defendant pointed a gun at the victim, pulled the trigger, and the gun fired resulting in the victim's
death was sufficient to sustain a conviction of manslaughter by culpable negligence. Even where a defendant
claims the firing of a gun is accidental, pointing a loaded gun at an individual supports a conviction of
manslaughter because the defendant's actions "show a conscious, wanton and reckless disregard of the
likely fatal consequences of his willful act which created an unreasonable risk." Jernigan v. State, 305
So.2d 353, 354 (Miss.1974).

¶17. The evidence upon which Tait was convicted in this case came from one eyewitness, Germelle
Washington. Tait chose not to testify. Washington's testimony indicated that Tait and the victim had been
playing with a gun all day. Washington did not know whose gun it was. In the afternoon, Tait picked up a
bracelet and asked the victim if he could wear it. The victim told him he could not, and the two started
joking around and horseplaying. Tait grabbed the gun and cocked it. He put it to the victim's head, and the
gun went off. Tait fell to the ground and started crying.

¶18. This evidence would not sustain a conviction for manslaughter committed in the heat of passion.
Washington indicated that the two were merely joking around and horseplaying about the bracelet. There
was no "state of violent and uncontrollable rage engendered by a blow or certain other provocation given."

¶19. Whether the evidence sustains a conviction for depraved heart murder is another question altogether.
This Court's construction of depraved heart murder as encompassing "a reckless and eminently dangerous
act directed toward a single individual" would seem to include the defendant's act of pointing a gun at the
victim and pulling the trigger. However, when looking at cases which have discussed depraved heart
murder, the closest factually is Blanks v. State, supra. Even though the defendant in Blanks was convicted
of manslaughter, this Court said it was proper for the jury to be instructed as to depraved heart murder
because the defendant's conduct following the shooting when he moved and dumped the body and his initial
statements in which he denied the killing were not consistent with an accidental killing. Blanks, 547 So.2d at
33-34. The present case is distinguishable from Blanks because Tait's conduct of falling to the ground and
crying following the shooting could be considered as consistent with an accident. In addition, there was no
testimony indicating that the gun was the defendant's, that he knew it was loaded, or that he pulled the
trigger.

¶20. We hold that if anything, the evidence supports manslaughter by culpable negligence. As in Jernigan
v. State, supra, Tait's actions "show a conscious, wanton and reckless disregard of the likely fatal
consequences of his willful act which created an unreasonable risk." However, the jury was not instructed
as to manslaughter by culpable negligence because Tait failed to request such an instruction. The jury had
only the options of convicting the defendant of depraved heart murder or manslaughter committed in the
heat of passion or of acquitting him.

¶21. Thus, we are now confronted with the more serious question concerning whether the case should be
returned to the trial court for a new trial in view of our findings that the proof was only sufficient for culpable
negligence manslaughter. This Court has remanded a case to allow another jury to pass on the question
where "the evidence of defendant's guilt is of such nature as to create a serious doubt in our minds."
Clayton v. State, 652 So.2d 720, 726 (Miss.1995). Yet, why proceed with another trial when the proof is
sufficient beyond a reasonable doubt for a conviction of culpable negligence manslaughter?

¶22. This Court has clear precedent for a more reasonable alternative. The proof being sufficient beyond a
reasonable doubt for culpable negligence manslaughter, this Court can simply affirm on that charge and
remand for re-sentencing. This Court, in Clemons v. State, 473 So.2d 943 (Miss.1985), held:

     We find in the instant case that the facts are not sufficient to support the conviction for murder and
     that the verdict is against the overwhelming weight of the evidence. In accord with Wells, we find that
     it would serve no useful purpose to subject the state and the defendant to another trial for
     manslaughter when the evidence has established guilt of that crime beyond a reasonable doubt.

     We therefore reverse the conviction of appellant of murder and remand the case for resentencing for
     the crime of manslaughter.

Clemons, 473 So.2d at 945.

¶23. Clemons continued the precedent originally established by this Court in Wells v. State, 305 So.2d
333 (Miss.1974). This Court in Wells held that although the evidence was insufficient to support a
conviction for murder, under the circumstances, the statute defining the offense of manslaughter was
applicable; therefore the case was reversed and remanded for resentencing only for the crime of
manslaughter. Wells, 305 So.2d at 339-40.

¶24. In Dedeaux v. State, 630 So.2d 30 (Miss.1993), Dedeaux was charged and convicted of murder
where the overwhelming proof supported manslaughter instead. This Court held that "The facts herein
clearly support manslaughter. This Court will follow its holdings in Wells and Clemons, and reverse and
remand for resentencing for the crime of manslaughter." Id. at 33.

¶25. We note also that the Court has routinely affirmed on the lesser included offense of simple possession
and remanded for resentencing, involving drug cases where possession with intent to deliver or sale was
alleged, but the proof, though insufficient to show "intent to deliver or sale" was sufficient for simple
possession. In Murray v. State, 642 So.2d 921 (Miss.1994), we held:

     In keeping with the decision in Miller, "where the Court has found the proof insufficient to support a
     charge of possession with intent to distribute, this Court has remanded the case for resentencing on
     the lesser included offense of possession." 634 So.2d at 129, citing Jowers v. State, 593 So.2d 46
     (Miss.1992); Thomas v. State, 591 So.2d 837 (Miss.1991); Stringfield v. State, 588 So.2d 438
     (Miss.1991); Jackson v. State, 580 So.2d 1217 (Miss.1991).

Murray, 642 So.2d at 924. See also, Miller v. State 634 So.2d 127, 129 (Miss.1994). The principle
commenced in Wells and followed in Clemons and Dedeaux should also apply to the case sub judice.

                                             CONCLUSION

¶26. The evidence in this case does not support a murder conviction. However, the overwhelming evidence
does support manslaughter by culpable negligence. Tait's actions "show a conscious, wanton and reckless
disregard of the likely fatal consequences of his willful act which created an unreasonable risk." The jury
was not instructed as to manslaughter by culpable negligence because Tait did not ask for such an
instruction. The State submitted and was erroneously granted a heat of passion manslaughter instruction.
The jury only had the options of convicting Tait of depraved heart murder or manslaughter committed in the
heat of passion or of acquitting him. In accord with Wells, Clemons, Dedeaux and other cases referred to
in this opinion, we hold that it would serve no useful purpose to require the State and Tait to proceed with
another trial for culpable negligence manslaughter. We reverse the conviction of murder, affirm on culpable
negligence manslaughter and remand the case to the lower court for resentencing only for the lesser offense
of culpable negligence manslaughter.

¶27. AFFIRMED IN PART; REVERSED AND REMANDED FOR RESENTENCING ON
THE LESSER INCLUDED OFFENSE ONLY.

PRATHER and SULLIVAN, P.JJ., and PITTMAN, BANKS, JAMES L. ROBERTS, Jr., and
MILLS, JJ., concur. DAN M. LEE, C.J., concurs in result only. McRAE, J., dissents with
separate written opinion.




      McRAE, Justice, dissenting:

¶28. Because constitutional rights should not be trampled or surrendered on the excuse of judicial economy,
I dissent. The Mississippi Constitution of 1890, art. VI, § 146 provides that this Court has only appellate
jurisdiction, and that no original jurisdiction may be conferred upon it. The majority does an injustice in its
failure to see that our role as appellate judges on an appellate court is to determine whether an individual
was properly charged and received a fair trial. This Court must live up to its responsibility to fulfill these
duties. Failing to fulfill our responsibility as an appellate court by playing district attorney, grand jury and
jury goes directly against our Constitution. We should instead stand firm behind the Constitution. That is
what our citizens expect. Without it we are nothing.

¶29. The majority recognizes that the prosecution erred in its presentation of the case as the facts will not
support a conviction for murder. It is easy to understand why prosecutors used the wrong statute when we
use language similar to that found in Windham v. State, 602 So.2d 798, 802 (Miss.1992) and Johnson v.
State, 475 So.2d 1136 (1985) which cloud the distinctions between certain crimes. Unfortunately, the
majority allows itself to be drawn into the role of prosecutor, grand jury, and jury by introducing charges,
indicting the defendant, and convicting him, all on appeal.

¶30. Although the proof may be sufficient to support a conviction for culpable negligence manslaughter, the
fact remains that the prosecution failed to indict Tait on this charge. Culpable negligence manslaughter under
Miss.Code Ann. § 97-3-47 (1994) is an offense distinct from murder, not a degree of murder, as culpable
negligence and malice constitute two entirely different criminal elements. Wells v. State, 305 So.2d 333,
340 (Miss.1975) (Rodgers, J., dissenting) (citing 26 Am.Jur.Homicide § 17 at 165-66 (1940)). It is not this
Court's place to decide the guilt of this defendant with respect to a completely different offense which was
never an issue in the court below.

¶31. The Mississippi Constitution of 1890, art. III, § 26, as well as Amendment VI of the United States
Constitution, grant the criminal defendant the right to a trial by an impartial jury. It is the jury's duty to
determine whether the facts warrant a conviction for an offense which was not included in the indictment.
Miss.Code Ann. § 99-19-3 (1994) states that "[a] person indicted for a criminal offense shall not be
convicted thereof, unless by confession of his guilt in open court or by admitting the truth of the charge
against him by his plea, or by the verdict of a jury accepted and recorded in court." See also Miss.Code
Ann. § 99-19-3 (1994) (only jury may find defendant guilty of lesser included offense without notice of
charge in indictment.). Neither our Code or our Constitution gives this Court the authority of a jury.

¶32. How can the defendant be convicted in this Court when the charge was never presented to a jury
below? The majority has violated our Constitution in the name of judicial economy. Requiring a new trial in
this matter would serve the purpose of enforcing the validity of our Constitution. Accordingly, I dissent.
