                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2011-CT-00840-SCT

ANTHONY TYRONE THOMAS a/k/a ANTHONY J.
THOMAS a/k/a ANTHONY B. THOMAS a/k/a BIG
HAB a/k/a ANTHONY THOMAS

v.

STATE OF MISSISSIPPI

                            ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                        05/03/2011
TRIAL JUDGE:                             HON. JEFF WEILL, SR.
COURT FROM WHICH APPEALED:               HINDS COUNTY CIRCUIT COURT, FIRST
                                         JUDICIAL DISTRICT
ATTORNEYS FOR APPELLANT:                 OFFICE OF STATE PUBLIC DEFENDER
                                         BY: GEORGE T. HOLMES
ATTORNEY FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                         BY: BILLY L. GORE
                                             SCOTT STUART
DISTRICT ATTORNEY:                       ROBERT SHULER SMITH
NATURE OF THE CASE:                      CRIMINAL - FELONY
DISPOSITION:                             THE JUDGMENT OF THE COURT OF
                                         APPEALS IS AFFIRMED IN PART AND
                                         REVERSED IN PART. THE JUDGMENT OF
                                         THE HINDS COUNTY CIRCUIT COURT IS
                                         AFFIRMED IN PART, REVERSED IN PART,
                                         AND THE COUNT II INDICTMENT IS
                                         DISMISSED - 10/03/2013
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC.

      KITCHENS, JUSTICE, FOR THE COURT:

¶1.   Anthony Tyrone Thomas was convicted of aggravated assault (Count I) and of being

a felon in possession of a weapon (Count II), then was sentenced to two consecutive terms
of life without parole as an habitual offender.       The Court of Appeals affirmed both

convictions, and we granted Thomas’s petition for writ of certiorari. Because we find that

Count II of Thomas’s indictment did not charge him with a crime, we reverse his conviction

for being a felon in possession of a weapon in violation of Mississippi Code Section 97-37-5

(Rev. 2006), and dismiss the indictment in Count II. As we have limited our review to Count

II, the conviction for Count I is affirmed by means of the judgment of the Court of Appeals.

                                              I.

¶2.    Thomas was indicted for one count of aggravated assault and one count of being a

felon in possession of a weapon. The State alleged that Thomas had stabbed his girlfriend

with a knife, and that Thomas’s status as a prior convicted felon prohibited his possessing

that knife. Thomas claimed that his girlfriend had attacked him first and that she accidentally

had stabbed herself twice in the ensuing struggle. A jury convicted Thomas on both counts,

but the case was reversed by the Court of Appeals in 2009. Thomas v. State (“Thomas I”),

19 So. 3d 130, 135 (Miss. Ct. App. 2009) (reversing for erroneous admission of evidence

related to Thomas’s prior felony conviction).

¶3.    Thomas was tried a second time and again was convicted on both counts. Having

been convicted and sentenced in the past for two other violent felonies, he was sentenced to

two life sentences without parole, in accordance with Mississippi Code Section 99-19-83, to

run consecutively. Thomas’s appeal was assigned to the Court of Appeals, which rejected

his claims of error and affirmed the convictions. See Thomas v. State,        So. 3d    , 2012

WL 4497345 (Miss. Ct. App. Oct. 2, 2012).




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¶4.    In his petition for writ of certiorari, Thomas argued that the evidence was insufficient

to convict him of being a felon in possession of a prohibited weapon, and that, should this

conviction be reversed, he would be entitled to a new trial on the aggravated assault charge

based on the doctrine of “retroactive misjoinder.” 1 We granted Thomas’s petition, and we

limit our review to the weapons conviction. M.R.A.P. 17(h).

                                               II.

¶5.    Mississippi Code Section 97-37-5 (Rev. 2006) makes it unlawful for any person who

has been convicted of a felony to possess a list of certain weapons, including “any bowie

knife, dirk knife, butcher knife, or switchblade knife.” In Count II of the indictment, the

State charged that Thomas “did willfully, unlawfully, knowingly and feloniously have in his

possession a certain weapon, to-wit: a knife, he, the said Anthony J. Thomas, having been

previously convicted of a felony . . . .” (Emphasis added.) However, the mere possession

of “a knife” is not a crime under Mississippi Code Section 97-37-5; only possession of those

knives enumerated in the statute is a crime.

¶6.    During the jury instructions conference, counsel for Thomas noted that the indictment

charged Thomas only with possessing “a knife,” and that the jury instructions should track

the language of the statute. Although he does not make this argument on appeal, we are

within our discretion to address plain errors despite procedural bars. M.R.A.P. 28(a)(3).




       1
         See Williams v. State, 37 So. 3d 717, 721 (Miss. Ct. App. 2010) (applying the
doctrine that “if the defendant can show that he suffered clear and compelling prejudice as
a result of the evidence introduced to support the vacated count, he is entitled to a new trial
on the remaining count(s).”)

                                               3
¶7.    The familiar constitutional right to notice of criminal charges is guarded by both the

state and federal bill of rights. U.S. Const. amend. VI (“In all criminal prosecutions, the

accused shall enjoy the right . . . to be informed of the nature and cause of the accusation.”);

Miss. Const. art 3, § 26 (“In all criminal prosecutions the accused shall have a right . . . to

demand the nature and cause of the accusation.”). See also Miss. Const. art. 3, § 27 (“No

person shall for any indictable offense be proceeded against criminally by information . . .

. ”). An indictment which fails to allege all essential elements of a crime runs afoul of our

constitutions and is void.

       It has long been the law of this land that an accused person has a constitutional
       right to be informed of the nature and material elements of the accusation filed
       against him. All the authorities are to the effect that an indictment, to be
       sufficient upon which a conviction may stand, must set forth the constituent
       elements of a criminal offense. Each and every material fact and essential
       ingredient of the offense must be with precision and certainty set forth.

Burchfield v. State, 277 So. 2d 623, 625 (Miss. 1973). See also Spears v. State, 253 Miss.

108, 116, 175 So. 2d 158, 161-62 (1965) (“Repeatedly this Court has held that an indictment

based upon a statutory offense must charge all of the essential elements of the statutory crime

and is void for failure to do so.”) (citing May v. State, 209 Miss. 579, 47 So. 2d 887 (1950);

Kelly v. State, 204 Miss. 79, 36 So. 2d 925 (1948); Rogers v. State, 198 Miss. 495, 22 So.

2d 550 (1945); Crosby v. State, 191 Miss. 173, 2 So. 2d 813 (1941)).

¶8.    This Court has emphasized the requirements of a sufficient indictment, stating that “if

the facts alleged do not constitute such an offense within the terms and meaning of the law

or laws on which the accusation is based, or if the facts alleged may all be true and yet

constitute no offense, the indictment is insufficient.” Peterson v. State, 671 So. 2d 647, 653



                                               4
(Miss. 1996) (quoting Love v. State, 211 Miss. 606, 611, 52 So. 2d 470, 472 (1951)). Being

a felon in possession of a prohibited weapon is a statutory crime. Therefore, an indictment

charging a defendant with being a felon in possession of a prohibited weapon, without

charging all the essential elements of that crime, is void. Spears, 175 So. 2d at 161-62.

Thomas’s indictment informed him only that he was accused of possessing a knife at a time

when he was a convicted felon. Notwithstanding the vast varieties of knives he could have

possessed with impunity, the indictment failed to specify which, if any, of the four types of

prohibited knives he was alleged to have possessed. The type of weapon a felon is alleged

to have possessed is unquestionably an essential and material element of the crime of being

a felon in possession of a prohibited weapon. The facts alleged by the State – that Thomas

was a convicted felon in possession of “a knife” – could all “be true and yet constitute no

offense.” Peterson, 671 So. 2d at 653. Inasmuch as Count II of the indictment did not charge

Thomas with an essential element of the crime, it is void for its failure to have done so. This

failure to charge Thomas with a crime cognizable under Mississippi law is a plain,

constitutional error and requires dismissal of the indictment and reversal of the conviction

in Count II.

                                       III. Conclusion

¶9.    The State failed to indict Anthony Thomas for the crime of being a felon in possession

of a weapon, alleging only that he, as a convicted felon, possessed “a knife.” The failure to

charge Thomas with a crime cognizable under Mississippi law renders that count of the

indictment void, requiring reversal of the conviction in Count II and dismissal of the

indictment. Accordingly, the judgment of the Court of Appeals is reversed in part and

                                              5
affirmed in part. The trial court’s judgment of conviction in Count II is reversed, and the

indictment in Count II is dismissed. The judgment of conviction for aggravated assault,

Count I, is affirmed.

¶10. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART
AND REVERSED IN PART. THE JUDGMENT OF THE HINDS COUNTY
CIRCUIT COURT IS AFFIRMED IN PART, REVERSED IN PART AND THE
COUNT II INDICTMENT IS DISMISSED. COUNT I: CONVICTION OF
AGGRAVATED ASSAULT AND SENTENCE OF LIFE IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS AS AN HABITUAL OFFENDER,
WITHOUT THE ELIGIBILITY OF PAROLE OR PROBATION, AFFIRMED.
COUNT II: CONVICTION OF FELON IN POSSESSION OF A WEAPON,
REVERSED AND THE INDICTMENT IS DISMISSED.

     WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, CHANDLER,
PIERCE, KING AND COLEMAN, JJ., CONCUR




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