                         IN THE SUPREME COURT OF MISSISSIPPI

                                      NO. 2001-KA-01854-SCT

STATE OF MISSISSIPPI

v.

TOMMY DEAN SHAW


DATE OF JUDGMENT:                                  11/8/2001
TRIAL JUDGE:                                       HON. JERRY O. TERRY, SR.
COURT FROM WHICH APPEALED:                         STONE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                           OFFICE OF THE DISTRICT ATTORNEY
                                                   BY: CHRISTOPHER LOUIS SCHMIDT
                                                   BY: CONO A. CARANNA
ATTORNEYS FOR APPELLEE:                            TADD PARSONS
                                                   JACK PARSONS
DISTRICT ATTORNEY:                                 CONO A. CARANNA, II
NATURE OF THE CASE:                                CRIMINAL - FELONY
DISPOSITION:                                       PRESENTED QUESTION ANSWERED-
                                                   10/09/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



        EN BANC.

        McRAE, PRESIDING JUSTICE, FOR THE COURT:

¶1.     Relying on Harris v. State, 723 So.2d 546 (Miss. 1997), the Circuit Court of Stone County

granted a directed verdict for Tommy Dean Shaw on the indicted charge of murder and would not allow

the jury to consider whether Shaw was guilty of the unindicted crime of manslaughter. The State of

Mississippi appeals the entry of the directed verdict and asks this Court to overrule Harris. The State

argues that if the State fails to make out a prima facie case on the charge of murder, the trial judge should
have the discretion to enter a "limited" directed verdict as to the murder charge and to submit the case to

the jury on the uncharged offense of manslaughter. We reject the State's contextion and reaffirm our ruling

in Harris.

                             FACTS AND PROCEEDINGS BELOW

¶2.     Tommy Dean Shaw ("Shaw") was indicted by the Grand Jury of Stone County on November 22,

2000, for the crime of murder in violation of Miss. Code Ann. § 97-3-19(1)(a) (1972). Following a 2001

mistrial in Stone County, trial began in Stone County on November 5, 2001. After a three-day trial, the

court granted a directed verdict of acquittal on the indicted charge of murder and would not allow the jury

to consider whether Shaw was guilty of the unindicted crime of manslaughter. Relying on Harris v.

State, 723 So.2d 546 (Miss. 1997), the trial judge ruled that the State had failed to make a prima facie

case on the indicted murder charge; therefore, the court was obligated to grant a directed verdict of

acquittal on the charge of murder and not permitted to submit the case to the jury on manslaughter, a lesser

unindicted offense.

¶3.     Pursuant to Miss. Code Ann. § 99-35-103(b) (Rev. 2000),1 which provides in relevant part that:

                The state or any municipal corporation may prosecute an appeal from a judgment
                of the circuit court in a criminal cause in the following cases:


                         ....
                         (b) From a judgment actually acquitting the defendant where a question of
                         law has been decided adversely to the state or municipality; but in such
                         case the appeal shall not subject the defendant to further prosecution, nor
                         shall the judgment of acquittal be reversed, but the Supreme Court shall
                         nevertheless decide the question of law presented.


        1
          This statute renders this appeal as one of "no controversy" since it will not subject the
defendant to further prosecution or reversal of the trial court's acquittal. Under the statute there is no
need for the defendant to respond to this appeal.

                                                     2
The State seeks redress only as to a pure question of law and not for the purpose of further prosecution

of Shaw. The State does not contest the trial judge's rulings as to the "facts" but only contends that this

Court's ruling in Harris should be overruled.

                                               DISCUSSION

¶4.     Since the issue presented is a question of law, we conduct de novo review. Ostrander v. State,

803 So.2d 1172, 1174 (Miss. 2002) (citing Dep't of Human Servs. v. Gaddis, 730 So.2d 1116, 1117

(Miss. 1998)).

¶5.     The State calls upon this Court to overrule Harris. The State argues that this Court's

ruling in Harris is contrary to the modern trend of allowing trial courts to submit a lesser charge to the jury

without the necessity of a separate count in the indictment, if the court directs a verdict on the charge in the

indictment. The State argues that a defendant under indictment for murder is sufficiently on notice that the

subsequent submission of the charge of manslaughter, for which the defendant is not under indictment, does

not cause prejudice. Further, the State argues that submitting to the jury a lesser unindicted crime is not

contrary to the well-established precedent of allowing trial judges to submit uncharged lesser- included

offenses to the jury upon a limited directed verdict acquitting the defendant of the superior offense. The

State argues that this Court's recent decision in Ostrander is in direct conflict with Harris. Additionally,

the State argues that other jurisdictions have recognized the right of a trial judge to grant a limited directed

verdict on a superior offense and submit to the jury an unindicted lesser offense. The State alleges that

manslaughter is a lesser- included offense to murder; and therefore, under current precedent, it should have

been permitted to proceed. The State claims the present facts are very different from those in Harris;

therefore, Harris should not be controlling. Finally, the State argues that since this Court has authority



                                                       3
to find a defendant guilty of lesser-included offenses, the trial court should be able to give instructions on

lesser offenses.

¶6.      In Harris, the defendant was indicted on three charges of deliberate design murder under Miss.

Code Ann. § 97-3-19 (1972) after a shootout on Mill Street in Jackson, Mississippi. 723 So.2d at 547.

Harris and two other defendants had fired weapons into a Jeep Cherokee killing Doris, Harold, and Hosea

Williamson. Id. Harris fired shots from a .357 magnum handgun, while one of other defendants used an

AK-47 assault rifle. Id. At trial, an expert for the State testified that the three victims were killed by a

high velocity weapon not a .357 magnum. Id. At the close of the State's case, Harris moved for directed

verdict based on a lack of evidence that he had caused the deaths of the three victims. Id. The trial judge

granted a directed verdict, but allowed the State to proceed on three counts of the lesser offense of

aggravated assault, charges for which Harris was never indicted. Id. The trial judge reasoned that an

aggravated assault charge is a lesser-included offense of the deliberate design murder charge. Id. The jury

convicted Harris of three counts of aggravated assault. Id. Harris appealed claiming that the "after the trial

court granted him a directed verdict of acquittal on deliberate design murder, the State should not have

been allowed to proceed on the theory that aggravated assault was a lesser-included offense of deliberate

design murder." Id. We held that:

                   A trial court determination of insufficiency leading to a directed verdict of acquittal
                   on the charge of the indictment summarily concludes the State's case on the
                   charge. If the State has made no other charges within the indictment, then the
                   State is precluded from trying the defendant on a lesser offense. . . . a directed
                   verdict on an indictment for murder is a bar to trying the defendant on aggravated
                   assault, since he had not be indicted for the offense of aggravated assault.

Id. at 547-48. We further held that "[w]hen a trial court grants a defendant's motion for directed verdict,

the trial court should not thereafter be permitted to alter or modify its apparently unqualified acquittal by


                                                         4
permitting the State, through amendment of the accusatory pleading to charge necessarily included lesser

offenses." Id. at 548. We relied on URCCC 7.06 which states that "[t]he indictment upon which the

defendant is to be tried shall be a plain, concise and definite written statement of the essential facts

constituting the offense charged and shall fully notify the defendant of the nature and cause of the

accusation." We found that Harris was entitled to a grand jury indictment on aggravated assault. Id. We

stated that "[t]he State cannot be allowed to charge only the highest offense and then test the evidence as

it goes along until the burden for some lesser offense is met." Id. at 549.

¶7.     The State argues that a defendant under indictment for murder is sufficiently on notice that the

subsequent submission of the charge of manslaughter, for which the defendant is not under indictment, does

not prejudice the defendant. This argument fails for a couple of reasons.

¶8.     Under the Mississippi Constitution art. 3, §§ 26, 27, a defendant is entitled to notice through

indictment of the charges for which he is being prosecuted. See Hailey v. State, 537 So.2d 411, 416

(Miss. 1988) ; Grayer v. State, 519 So.2d 438, 439 (Miss. 1988). Likewise, indictments must "fully

notify the defendant of the nature of the cause of the accusation." URCCC 7.06. An indictment for

"murder" does not notify a defendant of a possible "manslaughter" conviction, because manslaughter is not

a lesser-included offense to murder. ¶9.         Shaw was indicted for murder under Miss. Code Ann. §

97-3-19(1)(a) which states:

                (1) The killing of a human being without the authority by law by any means or in
                any manner shall be murder in the following cases:

                        (a) When done with deliberate design to effect the death of the
                        person killed, or of any human being.

(emphasis added). The State now asserts that the trial judge should have been authorized to issue a

"limited" directed verdict as to the murder charge and allow the State to proceed on the lesser unindicted

                                                     5
offense of manslaughter under Miss. Code Ann. § 97-3-35 (Rev. 2000) which provides that "[t]he killing

of a human being, without malice, 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,

shall be manslaughter." (emphasis added). Murder requires "deliberate design" which implies some

form of malice. Miss. Code Ann. § 97-3-19. On the other hand, manslaughter requires "without

malice, in the heat of passion, but in a cruel or unusual manner; or by the use of a

dangerous weapon" which specifically excludes malice. Miss. Code Ann. § 97-3-35. A murder

indictment indicating malice does not place a defendant on notice of possible lesser charges without

malice. If that were the case, then a defendant could not argue in his defense of a murder indictment that

he lacked the requisite malice because in doing so he may be setting himself up for a manslaughter charge

for which he was never indicted.

¶10.    Furthermore, Miss. Code Ann. § 99-7-37 (Rev. 2000) provides separate requirements for

indictments for murder and manslaughter:

                 In an indictment for homicide it shall not be necessary to set forth the manner in
                 which or the means by which the death of the deceased was caused, but it shall be
                 sufficient to charge in an indictment for murder, that the defendant did feloniously,
                 wilfully, and of his malice aforethought, kill and murder the deceased. And it shall
                 be sufficient, in an indictment for manslaughter, to charge that the defendant did
                 feloniously kill and slay the deceased, concluding in all cases as required by the
                 constitution of this state.

It is clear that our Legislature did not intend that a murder indictment would give sufficient notice of the

possible charge of the separate crime of manslaughter.

¶11.    The State argues that since this Court has held that notice of a superior charge also includes notice

of lesser-included offenses, it should also find notice of a superior charge includes notice of lesser offenses.

See Payton v.State, 642 So.2d 1328 (Miss. 1994); Porter v. State, 616 So.2d 899 (Miss. 1993);


                                                       6
Harveston v. State, 493 So.2d 365 (Miss. 1986). Additionally, the State argues that since under Miss.

Code. Ann. § 99-19-5 (Rev. 2000), a jury can return a verdict on a lesser-included offense, it should also

be able to consider a lesser offense. Section 99-19-5 provides that "[o]n an indictment for any offense the

jury may find the defendant guilty of the offense as charged, or of any attempt to commit the same offense,

or may find him guilty of an inferior offense, or other offense, the commission of which is necessarily

included in the offense with which he is charged in the indictment, whether the same be a felony or

misdemeanor, without any additional count in the indictment for that purpose." The State's argument fails

because there is a difference between lesser-included offenses and lesser offenses.

¶12.    We have repeatedly allowed notice of a superior charge to stand for notice for lesser- included

offenses, but we have also refused to allow notice of a superior offense to suffice for a lesser unindicted

offense. In Hailey, we held that an indictment for forcible rape could not be submitted to the jury with an

instruction for child fondling as it is not a lesser- included offense. 537 So.2d at 412. We found that "the

indictment [for forcible rape] did not sufficiently inform Hailey that he might face a charge of child fondling.

Id. The elements of rape included (1) carnal knowledge; (2) without consent and by force; and (3) of a

female child age 12 years or upward. Id. at 414 (citing Miss. Code Ann. § 97-3-65(2) (1972)). The

elements of child fondling included (1) a handling or touching or rubbing; (2) of a child under the age of 14

years; (3) by a person above the age of 18 years; and (4) for purposes of gratifying lust or indulging

licentious sexual desires. Id. (citing Miss. Code Ann. § 97-5-23 (Supp. 1987)). Under Miss. Code Ann.

§ 99-19-5, the jury may only consider "inferior offenses 'necessarily included within the more serious

offense.' " Id. (quoting Sanders v. State, 479 So.2d 1097, 1105 (Miss. 1985); Gillum v. State, 468

So.2d 856, 861 (Miss. 1985); Cannaday v. State, 455 So.2d 713, 725 (Miss. 1984)).See also Biles

v. State, 338 So.2d 1004 (Miss. 1976); Gray v. State, 220 Miss. 220, 70 So.2d 524 (1954); Bogan

                                                       7
v. State, 176 Miss. 655, 170 So. 282 (1936); Brown v. State, 103 Miss. 664, 60 So. 727 (1913);

Bedell v. State, 50 Miss. 492 (1874). "[T]his section only authorize[s] convictions of inferior constituent

offenses unless there be an additional count in the indictment." 537 So.2d at 414-15 (citing Callahan

v. State, 419 So.2d 165, 176 (Miss. 1982)). This Court held that "[i]f under the statute (1) the lesser

offense is necessarily included within the statutory definition of the charged offense, or (2) the indictment

contains such allegations that a lesser offense is necessarily charged in the indictment, then the State may

receive the benefit of Miss. Code Ann. § 99-19-5 if the evidence supports an instruction on the lesser

offense." Id. at 416. Neither of these scenarios are present here. Shaw was indicted for murder the

elements of which do not include all the requisite elements for manslaughter. An indictment for murder does

not contain such allegations that would necessarily include the lesser charge of manslaughter.

¶13.    In Holmes v. State, 660 So.2d 1225, 1227 (Miss. 1995), we upheld the amendment of an

indictment from robbery to grand larceny. Relying on Miss. Code Ann. § 99-19-5, we found that "the

effect of the amendment at issue is the same as would result from submission of a lesser-included offense

instruction. . . . and caused Holmes to "suffer no prejudice." Id. Certainly Shaw would have been

prejudiced here if the State had been permitted to proceed on a charge of manslaughter.

¶14.    In Eakes v. State, 665 So.2d 852, 859-60 (Miss. 1995), we held that an indictment for sexual

battery could be amended to attempted sexual battery without the need for an additional indictment. We

relied on Miss. Code Ann. § 99-19-5 reasoning that since the elements of attempted sexual battery were

also contained in the elements for sexual battery, the defendant was sufficiently on notice that he could be

convicted of the attempt charge. Id. We further found that "Eakes' defense to the sexual battery charge

was still available to him with regard to the attempted sexual battery charge." Id. at 860. Under the



                                                     8
present facts Shaw's defense of lack of malice would not have been available to him if the State had been

allowed to proceed on a charge of manslaughter, which does not require malice.

¶15.    We have relied on Miss. Code Ann. § 99-19-5 and found that an indictment for felony child abuse

did not place a defendant on notice as to a possible charge of misdemeanor contributing to the neglect of

a child. Moore v. State, 799 So.2d 89, 90-91 (Miss. 2001). We found that " 'if the State proved the

elements of felonious child abuse, it would not follow a fortiori that all the elements of child neglect were

also proven. ' " Id. at 91. (quoting Payton, 642 So.2d at 1334). "A defendant in a criminal case can be

found guilty of a lesser-included offense, so long as it is necessarily a lesser-included offense of the offense

charged." Id. Under the present facts, manslaughter is not a lesser-included offense of murder. The

elements of murder and manslaughter are quite different. Notice to a defendant that he is required to

defend against the elements of murder does not provide notice that he may too be required to defend

against the elements of manslaughter.

¶16.    Additionally, the Court of Appeals has held that an indictment for armed robbery necessarily

included the offense of simple robbery; therefore, the jury could be instructed on the lesser-included offense

even though it was not contained in the indictment. Fulcher v. State, 805 So.2d 556, 560-61 (Miss. Ct.

App. 2001). " 'The purpose of an indictment is to put the defendant on notice of the nature and cause of

the charges against him.' " Id. (quoting Richardson v. State, 769 So.2d 230, 233 (Miss. Ct. App.

2000)). The Court of Appeals held that " '[a] lesser-included offense by definition is one in which all its

essential ingredients are contained in the offense for which the accused is indicted, but not all of the essential

ingredients of the indicted offense.' " Id. at 560 (citing Payton, 642 So.2d at1334 (quoting Porter, 616

So.2d at 909-10)). In rejecting the application of Harris, the Court of Appeals found that it dealt with

a lesser-included offense; therefore Harris was inapplicable. Id. at 561.

                                                        9
¶17.    In Odom v. State, 767 So.2d 242, 246 (Miss. Ct. App. 2000), the Court of Appeals held that

an instruction on the lesser-included offense of simple assault was proper when the indictment was for

aggravated assault. The Court found Harris, inapplicable since this case involved a lesser-included

offense, not a lesser offense. Id. at 245.

¶18.    A "lesser-included offense" is very different than a "lesser offense." The essential elements of a

lesser-included offense are among the essential elements of the superior offense. See Fulcher, 805 So.

2d at 560 (citing Payton, 642 So.2d at 1334 (quoting Porter, 616 So.2d at 909-10). In his specially

concurring opinion in Porter, Chief Justice Hawkins stated that:

                A lesser-included offense by definition is one in which all its essential ingredients
                are contained in the offense for which the accused is indicted, but not all of the
                ingredients of the indicted offense. An accused could not be guilty of the offense
                for which he is indicted without at the same time being guilty of the lesser-included
                offense. The lesser-included crime is encompassed within the crime for which the
                accused is indicted. Harper v. State, 478 So.2d 1017, 1021 (Miss. 1985).
                There may very well be a separate, distinct and less serious crime which the proof
                at trial shows the defendant committed, but this does not necessarily mean it is a
                lesser-included offense. To constitute a lesser-included offense, every one of the
                essential ingredients must also constitute essential ingredients of the more serious
                crime of which the accused is indicted.

616 So.2d at 909-10 (Hawkins, C.J., specially concurring) (emphasis in original). Here, we are dealing

with a lesser offense. A defendant cannot be held to be on notice of a potential charge the elements of

which are different and distinct from those laid out in the indictment charge. How would he formulate his

defense if he had to prepare for the possibility of being charged with unindicted lesser offenses? If Shaw's

defense to murder was based on lack of malice or mere negligence, would he not be prejudiced by the

State being allowed to proceed on the unindicted charge of manslaughter which required no malice and

which can be based on negligence?



                                                    10
¶19.       The State also argues that this Court's decision in Ostrander is contrary to the holding in Harris.

This argument fails because the charge of first offense DUI is necessarily a lesser-included offense of the

charge of second offense DUI; therefore, our ruling in Ostrander is consistent with this Court's past

rulings.

¶20.       In Ostrander, the defendant was indicted for second offense DUI. 803 So.2d at 1173. At the

conclusion of the State's evidence, Ostrander moved for a directed verdict claiming that the State had failed

to prove his prior DUI conviction, and as a result failed to prove a required element of its case. Id. The

trial judge overruled his motion as to the case as a whole, but ruled that the prosecution could proceed on

a charge of first offense DUI since it was a lesser-included offense of second offense DUI. Id. at 1174.

The judge stated that

                   The gist of this offense is operating a motor vehicle while impaired. The
                   enhancement provided by the first, second, and third offenses concerns
                   punishment. And amendments can be allowed to conform to the evidence and
                   proof here. And certainly first offense DUI or first conviction DUI is a lesser
                   offense of the second offense, which is a lesser offense of a third or felony offense.

Id. A jury found Ostrander guilty of first offense DUI. Id. On appeal, Ostrander argued that Harris

precluded the jury from convicted him of first offense DUI. We held that:

                   This Court's decision in Harris, does not prevent the jury from convicting
                   Ostrander of first offense DUI. In Harris, this Court concluded that "where the
                   accusatory pleading fails separately to charge lesser-included offenses, and the
                   court grants a motion for directed verdict of acquittal, the judge of acquittal on the
                   charged offense includes acquittal on all uncharged lesser-included felony
                   offenses." Id. at 549. This holding must not be interpreted outside the factual and
                   procedural context of Harris. In Harris, the trial court's grant of the defendant's
                   motion for directed verdict was an "apparently unqualified acquittal." Id. at 548.
                   This Court observed, "The difference between a directed verdict and a jury verdict
                   lies only in the source; the effect of the acquittal is the same in either case." Id.
                   (Citing State ex rel. Robinson v. Blackburn, 367 So.2d 360, 362-63 (La.
                   1979)). The Court also stated that "a judgment of acquittal, whether entered by


                                                        11
                jury verdict or by grant of a directed verdict should be accorded equal weight and
                consequences." Id. (Citing People v. McElroy, 208 Ca.App.3d 1415, 256
                Cal.Rptr. 853, 858 (1989)). In the case at bar, the trial judge expressly limited
                his directed verdict to the second offense DUI. Such an acquittal, accompanied
                by an indication that the judgment did not encompass acquittal of the lesser-
                included offense, does not protect Ostrander from liability from the lesser offense
                necessarily included in the second offense DUI.


803 So.2d at 1176-77. We noted that "[n]o facts were altered by the directed verdict, and no defense

was suddenly unavailable." Id. at 1177. Ostrander involved the acquittal of a superior offense and the

State's proceeding on a lesser-included offense. Here, the case involves two distinct offenses, murder and

manslaughter. There is no lesser-included offense; therefore, Ostrander is not contrary to the holding in

Harris. Furthermore, if the State had been allowed to suddenly proceed on a charge of manslaughter,

Shaw would have been denied the defense of lack of malice.

¶21.    Third, the State argues that our holdings on this issue are contrary to those of other jurisdictions.

The State cites People v. McElroy, 208 Cal. App. 3d 1415, 256 Cal. Rptr. 853 (Cal. Ct. App. 1989);

State v. Morris, 331 N.W. 2d 48 (N.D. 1983); and State v. Foster, 433 N.W.2d 168 (Neb. 1988).

¶22.    In McElroy, the defendant was convicted of fifteen counts of robbery with the personal use of

a firearm, ten counts of robbery while armed with a firearm, two counts of robbery, one count of attempted

robbery with personal use of a firearm, and one count of attempted robbery while armed with a firearm.

208 Ca. App. 3d at 1418-19. At the conclusion of the State's case, McElroy moved for acquittal as to

two of the counts of robbery claiming the evidence failed to show any property actually being taken. Id.

at 1422-23. The State moved to amend one of these counts to attempted robbery, which was granted.

Id. at 1423. On the other count, the State argued that property had been taken therefore a count of

robbery was justified. Id. The trial court disagreed and orally granted McElroy's motion for directed


                                                    12
verdict without qualification as to that count. Id. The State then moved to amend that count to attempted

robbery, which was granted over McElroy's objection. Id. In finding that the trial court's unqualified

acquittal prevented an attempted robbery conviction as to the one count, the court noted that "[o]ur

decision, of course, does not prohibit the trial court from appropriately limiting the impact of the grant of

[directed verdict] motion." Id. at 1424. One major difference between McElroy and Harris, is that

McElroy deals with lesser-included offenses, whereas Harris deals with lesser offenses.

¶23.    In Morris, the defendants were convicted of possession of a controlled substance with intent to

deliver and possession of less than one half ounce of marijuana. 331 N.W.2d at 48.

On appeal, the defendants argued that the trial court erred in denying their motion for judgment of acquittal

because there was insufficient evidence for which the jury could convict. Id. at 55. In finding that the trial

judge was empowered to give a limited acquittal, the court stated that "[a] trial court's granting of a motion

for judgment of acquittal with respect to the major offense charged does not preclude submission of the

case to the jury on the basis of the lesser-included offense instruction unless, of course, the granting of the

motion for acquittal extends to the lesser-included offenses." Id. at 56 (citing Howard v. United States,

237 F.2d 216 (D.C. Cir. 1956); State v. Marti, 290 N.W.2d 570 (Iowa 1980); State v. Strong, 339

S.W.2d 759 (Mo. 1960); State v. Vincent, 321 S.W.2d 439 (Mo. 1959)). Again, there is a major

difference between Morris and Harris. Morris addresses acquittal of superior offenses and submission

of lesser-included offenses to the jury. Harris addresses lesser offenses with different elements.

¶24.    In Foster, the defendant was indicted with one count of first degree assault. 433 N.W.2d at 168.

After closing arguments the judge noted that "there's a first degree assault charge against Mr. Foster, and

its my impression as a matter of law that that charge fails because I feel that the–that the evidence is



                                                      13
insufficient for any reasonable minds to conclude that there was a serious bodily injury." Id. at 168. The

Court found the defendant could not be guilty of first degree assault, but submitted to the jury attempted

first degree assault, a lesser-included offense. Id. at 168-69. The Court found that "where the State fails

to demonstrate a prima facie case on the crime charged, but does so on a lessor included offense, the trial

court in its discretion may direct a verdict on the crime charged and submit the evidence to the trier of fact

for consideration on the lesser-included offense." Id. at 169. Again, Foster is different from Harris.

Foster concerns a lesser-included offense, the elements of which are contained in the superior offense.

Harris contains a lesser offense, the elements of which are different than those of the charge in the

indictment.

¶25.    Fourth, the State argues that manslaughter is a lesser-included offense of murder, and, therefore,

it should have been permitted to proceed. The State cites Grayer v. State, 519 So.2d 438 (Miss. 1988).

The State's explanation of the law is incorrect.

¶26.    In Grayer, the defendant sought the vacation of his guilty plea to the crime of assault with intent

to rape. Id. Grayer argued that his "1970 conviction was unlawful because it was entered upon a plea of

guilty to a crime for which he had not been indicted." Id. We found that "assault with intent to rape . . .

is sufficiently a constituent offense of forcible rape such that a plea bargain induced guilty plea thereto under

an indictment charging forcible rape will withstand subsequent post-conviction attack." Id. at 440. In

footnote 3, we stated that:

                 By way of analogy, we consider heat of passion manslaughter a lesser-included
                 offense to the charge of murder, even though that particular form of manslaughter
                 contemplates proof of a fact inconsistent with the principle charge of murder. See
                 Isom v. State, 481 So.2d 820, 824-25 (Miss. 1985).




                                                      14
519 So.2d at 440 n.3.

¶27.    In Isom, the defendant was indicted for murder and convicted of manslaughter. 481 So.2d at 821.

On appeal, Isom argued that the trial court erred in giving the jury a special interrogatory and requiring the

jury to deliberate for excessive hours. Id. Justice Robertson, in his concurring opinion, found that the

elements of manslaughter and murder are different; therefore the trial judge's attempt to instruct the jury

through a special interrogatory was an attempt to give an instruction on the lesser crime of manslaughter

which was error. Id. at 825. Justice Robertson cited other opinions holding that there is a clear distinction

between murder and manslaughter. Id. (See Cook v. State, 467 So.2d 203 (Miss. 1985); Stevens v.

State, 458 So.2d 726 (Miss. 1984); Murphy v. State, 336 So.2d 213 (Miss. 1976); Jones v. State,

222 Miss. 387, 76 So.2d 201 (1954); Newell v. State, 209 Miss. 653, 48 So.2d 332 (1950); Adams

v. State, 175 Miss. 868, 167 So. 59 (1936)). Footnote 3 in Grayer is wrong. The majority in Grayer

inaccurately stated Justice Robertson's concurring opinion in Isom. Manslaughter is not a lesser-included

offense of murder.

¶28.    Fifth, the State argues that the facts in Harris are very different from the facts in the present case.

The State argues that the holding in Harris is inapplicable.

¶29.    The facts are not so different. Harris was indicted for murder, as was Shaw. After Harris was

given a directed verdict on the charge of murder, the prosecution asked the trial judge to proceed on the

unindicted charge of aggravated assault. After Shaw was given a directed verdict on the charge of murder,

the prosecution asked the trial judge to proceed on the unindicted charge of manslaughter. Manslaughter

and aggravated assault are not lesser- included offenses of murder. It follows that both prosecutors erred




                                                     15
in thinking that the trial judge should allow them to proceed on lesser charges for which neither defendant

was indicted.

¶30.    Sixth, the State argues that since this Court has power to correct a jury verdict and find a defendant

guilty of a lesser-included offense and remand for sentencing, this Court should find that a trial court upon

motion for a directed verdict can find a defendant guilty of a lesser-included offense. The State cites

Alford v. State, 656 So.2d 1186 (Miss. 1995).

¶31.    While it is true that this Court on appeal has found defendants guilty of lesser-included offenses,

that does not support the conclusion that a trial court should be able to give a charge of a lesser offense for

which a defendant has not been indicted. In Alford, the defendant was convicted of burglary of an

inhabited dwelling. 656 So.2d at 1187. We held that the State had failed to prove an essential element to

burglary, but Alford was guilty of the lesser-included offense of trespass. Id. at 1192. Again, we were

passing upon a lesser-included offense. Manslaughter is not a lesser-included offense of murder.

¶32.    Since manslaughter is not a lesser-included offense of murder, the trial judge was correct in denying

the State's motion to proceed on the unindicted crime of manslaughter after he directed verdict in favor of

Shaw on the indicted charge of murder.

                                             CONCLUSION

¶33.    We affirm the trial court in its application of our holding in Harris. A defendant under indictment

for murder is not sufficiently on notice of the possible submission of the charge of manslaughter. The fact

that a trial judge is permitted to submit to a jury a lesser- included charge does not justify the submission

of a purely "lesser charge." Our decision in Ostrander and case law from other jurisdictions are not

contrary to our holding in Harris. Contrary to the State's argument, manslaughter is not a lesser-included

offense of murder. The facts of this case are similar to Harris. Furthermore, our precedent of holding

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defendants guilty of lesser-included offenses does not justify proceeding on an unindicted lesser offense.



¶34.    PRESENTED QUESTION ANSWERED.

     PITTMAN, C.J., EASLEY AND CARLSON, JJ., CONCUR. WALLER, J.,
DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY SMITH, P.J., AND
COBB, J. DIAZ AND GRAVES, JJ., NOT PARTICIPATING.


        WALLER, JUSTICE, DISSENTING:

¶35.    Because the majority errs in concluding that manslaughter is not a lesser-included offense of murder,

I respectfully dissent.

¶36.    Manslaughter is a lesser-included offense of murder because: (1)Harris v. State, 723 So.2d 546

(Miss. 1997), does not apply; (2) our case law clearly states that manslaughter is a lesser-included offense

of murder; and (3) the applicable statute allows the jury to decide whether the defendant is guilty of a

lesser-included offense.

¶37.    Harris is inapplicable because manslaughter is a lesser-included offense of murder. The reliance

by the majority opinion on Harris is misplaced. Harris deals with a lesser offense and has no bearing

on a lesser-included offense because "[c]rucial to that decision [Harris] is the fact that, under our

longstanding precedents, assault is not viewed as a lesser-included offense to the crime of murder." Wolfe

v. State, 743 So. 2d 380, 387 (Miss. 1999) (Banks, J., dissenting). See also Fulcher v. State, 805

So. 2d 556, 560-61 (Miss. Ct. App. 2001).

¶38.    We have consistently held that an indictment for murder includes the lesser-included charge of

manslaughter:

                 The long-standing common-law rule is that an indictment for murder
                 includes all lower grades of felonious homicide. Under this general rule,

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                 "on an indictment charging murder generally an accused may be found
                 guilty of manslaughter . . . and, where manslaughter has been divided by
                 statute into degrees, of any of the statutory degrees." 42 C.J.S.
                 Indictments and Informations, § 280 (1944). This Court has repeatedly
                 applied the general rule and upheld convictions of manslaughter obtained
                 under an indictment for murder. Wells v. State, 305 So. 2d 333 (Miss.
                 1974); Roberson v. State, 257 So .2d 505 (Miss. 1972); King v.
                 State, 251 Miss. 161, 168 So. 2d 637 (1964); Calicoat v. State, 131
                 Miss. 169, 95 So. 318 (1922).

Kelly v. State, 463 So. 2d 1070, 1073 (Miss. 1985).

¶39.    The fact that manslaughter proof is inconsistent with that of murder is of no consequence. "[B]y

way of analogy, we consider heat of passion manslaughter a lesser-included offense to the charge of

murder, even though that particular form of manslaughter contemplates proof of facts inconsistent with the

principal charge of murder." Grayer v. State, 519 So. 2d 438, 440 n.3 (Miss. 1988) (quoting Isom v.

State, 481 So. 2d 820, 824-25 (Miss. 1985) (Robertson, J., concurring)). Manslaughter is a lesser-

included offense of murder. Id. at 825.

¶40. The Court of Appeals has also addressed the murder-manslaughter issue and stated, "[i]n order to

authorize [a lesser-included offense] instruction the more serious offense must include all the elements of

the lesser offense, that is, it is impossible to commit the greater offense without at the same time committing

the lesser-included offense." Hester v. State, 841 So. 2d 158, 162 (Miss. Ct. App. 2002) (quoting

Shannon v. State, 739 So. 2d 468 (Miss. Ct. App. 1999) (quoting Sanders v. State, 479 So. 2d

1097, 1098 (Miss. 1985))). The Court of Appeals found that manslaughter is a lesser-included offense

of murder under the Shannon test. Hester, 841 So. 2d at 162.

¶41.    Along with our case law, our statutory law clearly allows the jury to find a defendant guilty for an

"inferior offense" of the offense charged in the indictment.



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                On an indictment for any offense the jury may find the defendant guilty of
                the offense as charged, or of any attempt to commit the same offense, or
                may find him guilty of an inferior offense, or other offense, the
                commission of which is necessarily included in the offense with
                which he is charged in the indictment, whether the same be a felony
                or misdemeanor, without any additional count in the indictment for that
                purpose.

Miss. Code Ann. § 99-19-5 (2000) (emphasis added).

¶42.    Since manslaughter is a lesser-included offense of murder, the jury here should have been allowed

to decide whether Shaw is guilty of that lesser-included offense.

¶43.    For these reasons, I respectfully dissent.

        SMITH, P.J., AND COBB, J., JOIN THIS OPINION.




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