                         IN THE SUPREME COURT OF MISSISSIPPI
                                  NO. 92-KA-00973-SCT
RODERICK FRANKLIN AND GLEN DALE JACKSON
v.
STATE OF MISSISSIPPI

DATE OF JUDGMENT:                             09/02/92
TRIAL JUDGE:                                  HON. GRAY EVANS
COURT FROM WHICH APPEALED:                    WASHINGTON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS:                      STAN PERKINS
ATTORNEYS FOR APPELLEE:                       OFFICE OF THE ATTORNEY GENERAL
                                              BY: CHARLES MARIS, JR.
DISTRICT ATTORNEY:                            FRANK CARLTON
NATURE OF THE CASE:                           CRIMINAL - FELONY
DISPOSITION:                                  REVERSED AND RENDERED - 6/20/96
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                               7/11/96




     EN BANC.


     PRATHER, PRESIDING JUSTICE, FOR THE COURT:


¶1. This case involves the slaying of a 61-year-old homeless man, which occurred in a field behind the
Frost Top Restaurant in Greenville, Mississippi on Sunday, January 19, 1992. In connection with this
killing, 13-year-old Roderick Franklin and 17-year-old special education student Glen Dale Jackson
were indicted in the Washington County Circuit Court for murder and conspiracy to commit murder.
Franklin and Jackson were acquitted of the murder charges, but were convicted of the crime of
conspiracy to commit murder. They were sentenced to twenty years in prison, with five years
suspended. On appeal, Franklin and Jackson raise one issue:

     WHETHER THE TRIAL COURT ERRED BY REFUSING THE APPELLANTS'
     REQUESTS FOR A DIRECTED VERDICT AND/OR JUDGMENT
     NOTWITHSTANDING THE VERDICT (JNOV)?

¶2. On Sunday afternoon, January 19, 1992, Roderick Franklin, Glen Dale Jackson, and three other
teenagers decided to "mess with" a homeless man. The five youngsters, threw rocks at the victim and
kicked him for five to seven minutes. During this time, Michael Moering, a high school senior and the
oldest boy in the group, left. Moering returned a few minutes later with a gun; he shot the victim.
Moering then pointed the gun at Franklin and another boy, because "he knew [they were] gon' to tell
it." The subsequent autopsy revealed that the victim's death was caused by a gunshot wound to the
back of his head.

                                        LEGAL ANALYSIS


     WHETHER THE TRIAL COURT ERRED BY REFUSING THE APPELLANTS'
     REQUESTS FOR A DIRECTED VERDICT AND/OR JUDGMENT
     NOTWITHSTANDING THE VERDICT (JNOV)?

¶3. Requests for a directed verdict and motions JNOV implicate the sufficiency of the evidence. The
standard of review for the legal sufficiency of the evidence is well-settled:

     [W]e must, with respect to each element of the offense, consider all of the evidence--not just
     the evidence which supports the case for the prosecution--in the light most favorable to the
     verdict. The credible evidence which is consistent with the guilt must be accepted as true. The
     prosecution must be given the benefit of all favorable inferences that may reasonably be drawn
     from the evidence. Matters regarding the weight and credibility to be accorded the evidence are
     to be resolved by the jury. We may reverse only where, with respect to one or more of the
     elements of the offense charged, the evidence so considered is such that reasonable and fair-
     minded jurors could only find the accused not guilty.

Wetz v. State, 503 So.2d 803, 808 (Miss. 1987) (citations omitted).

¶4. The appellants argue that, although they may have conspired to commit assault, they did not
conspire to commit murder. The law on conspiracy provides that:

     For there to be a conspiracy, "there must be recognition on the part of the conspirators that
     they are entering into a common plan and knowingly intend to further its common purpose."
     The conspiracy agreement need not be formal or express, but may be inferred from the
     circumstances, particularly by declarations, acts, and conduct of the alleged conspirators.
     Furthermore, the existence of a conspiracy, and a defendant's membership in it, may be proved
     entirely by circumstantial evidence.

Nixon v. State, 533 So. 2d 1078, 1092 (Miss. 1987) (citations omitted); Mitchell v. State, 572 So.
2d 865, 867 (Miss. 1990).

¶5. "'By its very nature, conspiracy is a joint or group offense requiring a concert of free will."
Flanagan v. State, 605 So. 2d 753, 757 (Miss. 1992) (quoting Moore v. State, 290 So. 2d 603, 604
(Miss. 1974)). Furthermore, conspiracy requires the "union of the minds" of the conspirators. Id.

¶6. The only evidence of a conspiracy in this case is the fact that Franklin and Jackson went with the
other boys to "mess with" the victim.(1) This is insufficient evidence of conspiracy to commit murder.
See Thomas v. State, 591 So. 2d 837, 839 (Miss. 1991). There is no evidence to indicate that either
Franklin or Jackson recognized that, by "messing with" the victim, he had entered into a common
plan to commit murder or that he knowingly intended to further the common purpose of that plan.
See Johnson v. State, 642 So. 2d 924, 928 (Miss. 1994). There is no evidence of a "union of the
minds" between the boy who pulled the trigger and the appellants. Accordingly, the judgment of
conviction by the trial court is reversed and rendered in favor of the appellants. Roderick Franklin
and Glen Dale Jackson are discharged on these charges of conspiracy to commit murder.

¶7. REVERSED AND RENDERED. RODERICK FRANKLIN AND GLEN DALE
JACKSON ARE DISCHARGED.

LEE, C.J., SULLIVAN, P.J., BANKS AND McRAE, JJ., CONCUR. SMITH, J., DISSENTS
WITH SEPARATE WRITTEN OPINION JOINED BY ROBERTS AND MILLS, JJ. MILLS,
J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY ROBERTS AND
SMITH, JJ. PITTMAN, J., NOT PARTICIPATING.




     SMITH, JUSTICE, DISSENTING:


¶8. On January 19, 1992, five teenagers in Greenville decided to go "mess with" Thomas Payton, an
elderly homeless man, who lived in a vacant field behind the Frost Top Restaurant. Their messing
with Payton consisted of throwing rocks, pieces of brick, and one large brick which struck the
defenseless Payton, who immediately fell to the ground. Four of the teens continued the attack on
Payton by stoning and kicking Payton while one of their number, Michael Moering, momentarily left
the scene and returned with a gun. While Payton lay face down on the ground, Moering pointed the
gun at the back of Payton's head and pulled the trigger, but the gun did not fire. Moering killed
Payton on the second attempt with a shot to the back of the head. Eddie Jefferson, a State's witness,
who had pled guilty to manslaughter, testified that he "had a feeling" and "knew in a certain way" that
Moering was going to get a gun.

¶9. The majority, because of supposed lack of evidence of conspiracy, would reverse and render the
conviction of these defendants by a Washington County jury and would set aside their sentence of
twenty years imprisonment, with five years suspended. It is my view that the "messing with," as
illustrated by the facts of this case, which unquestionably constituted a vicious, brutal, and sadistic
assault upon an elderly, homeless and defenseless victim is a question properly left for the jury to
determine the meaning and intent of these five teens in carrying out their ultimately fatal assault upon
Payton. I therefore disagree and am compelled to dissent.

¶10. The majority maintains that there is no direct evidence of Franklin's and Jackson's intent to
commit conspiracy to murder Payton. Direct evidence is not required. This Court, in Willis v. State ,
518 So. 2d 667, (Miss. 1988), in considering intent stated:

     [I]n addressing the question of wilful intent . . . this Court has said:

     Intent to do an act or commit a crime is also a question of fact to be gleaned by the jury
     from the facts shown in each case. The intent to commit a crime or to do an act by a free
     agent can be determined only by the act itself, surrounding circumstances, and expressions
     made by the act [sic] with reference to his intent. Shanklin v. State, 290 So. 2d 625, 627 (Miss.
     1974).

     Too, criminal intent may be proved by circumstantial evidence. Stinson v. State, 375 So. 2d
     235 (Miss. 1979). Intent may be determined from the acts of the accused and his conduct
     and inferences of guilt may be fairly deducible from all the circumstances. Newburn v.
     State, 205 So. 2d 260 (Miss. 1967). (emphasis added).

Willis, 518 So. 2d at 669 quoting Shive v. State, 507 So. 2d 898, 900 (Miss. 1987).

¶11. The majority's cited authority, Nixon v. State, 533 So. 2d 1078 (Miss. 1987), recognizes a
defendant's membership in a conspiracy may be proven by entirely circumstantial evidence. In Nixon,
citing Gray v. State, 487 So. 2d 1304, 1306 (Miss. 1986), this Court held "The conspiracy agreement
need not be formal or express, but may be inferred from the circumstances, particularly by
declarations, acts, and conduct of the alleged conspirators. Furthermore, the existence of a
conspiracy, and a defendant's membership in it, may be proved entirely by circumstantial
evidence." Nixon, 533 So. 2d at 1092.(citations omitted)(emphasis added).

¶12. The majority stakes its opinion squarely upon, "The only evidence of a conspiracy in this case is
the fact that Franklin and Jackson went with the other boys to 'mess with' the victim." Majority
opinion at 3. The majority finds the record lacking of any testimony by any of the conspirators that
they intended and planned to kill Payton. In the process, the majority totally ignores this Court's
pronouncements on this subject in Gray, Nixon, Willis, Shanklin and Newburn.

¶13. The majority accepts the defendant's argument that, although they may have conspired to
commit assault, they did not conspire to commit murder, which was conceded by the defendants in
their brief at page six. In doing so, the majority ignores the acts and conduct of the circumstances and
the reasonable inferences of guilt which may be fairly deducible by the jury from such circumstances.
In addition to the above mentioned facts in this record, Jefferson testified that it was Jackson who
first suggested going "to mess with the old man." Jefferson also told the jury that he "had a feeling"
and "knew in a certain way" that Moering was going to get a gun. And yet, the severe stoning and
kicking of Payton continued to the point that Payton collapsed upon the ground.(2) And all four co-
conspirators, having beaten Payton to a pulp, stood by and watched Moreing fail on his first attempt,
then succeed on the second attempt in killing Payton with a shot to the back of his head. And no one
did anything to prevent the killing. The term "messing with" as used by several of the co-
conspirators, was a "declaration," as contemplated in Nixon, which along with their acts and
conduct, would allow the jury to infer from the circumstances that indeed, a conspiracy to murder
Payton did in fact exist. As in Willis, " intent is a question of fact to be gleaned by the jury from the
facts shown in each case," and this was a proper question for the jury. Willis, 518 So. 2d at 669.
Here, the declaration of "mess with" coupled with the defendant's acts and conduct, as demonstrated
by the circumstances of the vicious beating, was more than sufficient for a reasonable jury to infer
conspiracy and intent to kill Payton. I would affirm the conviction and sentence of Franklin and
Jackson.

¶14. I respectfully dissent.

ROBERTS AND MILLS, JJ., JOIN THIS OPINION.
     MILLS, JUSTICE, DISSENTING:


¶15. The majority today seeks to discharge into society Roderick Franklin and Glen Dale Jackson
who, along with their companions, stoned, beat, kicked and shot to death Thomas Payton, an elderly
homeless man in Greenville, Mississippi, on January 19, 1992.

¶16. The majority finds that since Franklin and Jackson only meant to stone, beat and kick the old
man, that they should not be held responsible for his eventual death by gunshot wound from another
actor in this sordid event. The only defense raised by the defendants herein was that they only meant
to "mess with" the decedent and therefore should not be held responsible for his death. Apparently,
we are asked to condone such acts of violence, even when they result in the ultimate death of the
victim, when the defendants whine that they could not foresee the result of their violent acts.

¶17. Our citizens daily face constant threats of unrestrained violence, often furnished at the hands of
juveniles. From the "wilding" escapades of our urban centers, to dropping children out of tall
buildings, to "messing with" homeless people in Greenville, we endure conscienceless acts of random
violence which cannot be tolerated in a civilized society. Today's holding emboldens the apologists
who would defend these acts of violence upon the grounds that somehow society is at blame. Our
failure to place responsibility squarely upon the shoulders of the criminals in this case only serves to
further exacerbate the random killings, thuggery and apparently mindless attacks which have become
so commonplace as to be practically accepted as a way of modern life.

¶18. The majority states "the appellants argue that, although they may have conspired to commit
assault, they did not conspire to commit murder." (Emphasis added.) Majority Opinion, p. 2. The
majority then correctly cites Nixon v. State, 533 So. 2d 1078, 1092 (Miss. 1987), which states that a
conspiracy:

     . . . . must be recognition on the part of the conspirators that they are entering into a common
     plan and knowingly intend to further its common purpose. The conspiracy agreement need not
     be formal or expressed, but may be inferred from the circumstances, particularly by
     declarations, acts and conduct of the alleged conspirators. Furthermore, the existence of a
     conspiracy, and a defendant's membership in it, may be proved entirely by circumstantial
     evidence.

¶19. The present case actually shows that the young boys in question had earlier participated in
harassing the old man, that they had taken a break from their endeavors, that they had gone to an
accomplice's home and listened to a car radio for some period of time, and then had gone back to
further harass the old man and "mess with" him. The defendants herein fully participated in all of the
acts of kicking and stoning the old man. These acts may in fact have killed the old man. These young
thugs then stood by and watched another conspirator pull the trigger on a pistol aimed at the old
man's head. When the gun failed to fire, they took no efforts to intervene but stood by and watched
him fire again, this time hitting the old man in the head. At what point in this chain of events do we
find that the boys had stopped "messing with" the old man and had begun murdering him? These
events are all interrelated and the actions of the young boys show such depravity and conscienceless
disrespect for human life that the lower court jury was entitled absolutely to find them guilty of
conspiring to commit murder. The argument raised by the defendants that they only intended to
"mess with" the victim is not a defense. It is only an excuse.

¶20. For the above reasons, I respectfully dissent from the majority opinion.

ROBERTS AND SMITH, JJ., JOIN THIS OPINION.


1. Although the prosecutor did argue the "street" meaning of the term "mess with" to the trial judge,
there was no evidence before the jury on this matter.

2. The beating inflicted by the teens from the stoning and kicking of Payton was so vicious that
initially police investigators erroneously assumed that to be the cause of death. They were totally
unaware that the cause of death was due to a gunshot to the back of the head.
