Chapter 1. Conspiracy, Accessories and Attempts

§ 97-1-1. Conspiracy.

  1. If two (2) or more persons conspire either:
    1. To commit a crime; or
    2. Falsely and maliciously to indict another for a crime, or to procure to be complained of or arrested for a crime; or
    3. Falsely to institute or maintain an action or suit of any kind; or
    4. To cheat and defraud another out of property by any means which are in themselves criminal, or which, if executed, would amount to a cheat, or to obtain money or any other property or thing by false pretense; or
    5. To prevent another from exercising a lawful trade or calling, or doing any other lawful act, by force, threats, intimidation, or by interfering or threatening to interfere with tools, implements, or property belonging to or used by another, or with the use of employment thereof; or
    6. To commit any act injurious to the public health, to public morals, trade or commerce, or for the perversion or obstruction of justice, or of the due administration of the laws; or
    7. To overthrow or violate the laws of this state through force, violence, threats, intimidation, or otherwise; or
    8. To accomplish any unlawful purpose, or a lawful purpose by any unlawful means; such persons, and each of them, shall be guilty of a felony and upon conviction may be punished by a fine of not more than Five Thousand Dollars ($5,000.00) or by imprisonment for not more than five (5) years, or by both.
  2. Where one (1) or more of the conspirators is a law enforcement officer engaged in the performance of official duty or a person acting at the direction of a law enforcement officer in the performance of official duty, any remaining conspirator may be charged under this section if the alleged conspirator acted voluntarily and willfully and was not entrapped by the law enforcement officer or person acting at the direction of a law enforcement officer.
  3. Where the crime conspired to be committed is capital murder or murder as defined by law or is a violation of Section 41-29-139(b)(1), Section 41-29-139(c)(2)(D) or Section 41-29-313(1), being provisions of the Uniform Controlled Substances Law, the offense shall be punishable by a fine of not more than Five Hundred Thousand Dollars ($500,000.00) or by imprisonment for not more than twenty (20) years, or by both.
  4. Where the crime conspired to be committed is a misdemeanor, then upon conviction said crime shall be punished as a misdemeanor as provided by law.

HISTORY: Codes, 1892, § 1006; 1906, § 1084; Hemingway’s 1917, § 810; 1930, § 830; 1942, § 2056; Laws, 1954, Ex. ch. 20; Laws, 1968, ch. 343, § 1; Laws, 1981, ch. 488, § 1; Laws, 2007, ch. 500, § 1, eff from and after July 1, 2007.

Amendment Notes —

The 2007 amendment added (2) and redesignated the former first paragraph as present (1) and the former second and third paragraphs as present (3) and (4); deleted “Provided that” from the beginning of (3) and (4); inserted “or Section 41-29-313(1)” in (3); and made a minor stylistic change.

Cross References —

Conspiracy under Mississippi Code of Military Justice, see §§33-13-461 et seq.

Conspiracy to obtain payment or allowance by false or fraudulent Medicaid claim, see §43-13-211.

Disqualification of persons convicted of conspiracy to commit crime to hold office in labor organizations, etc., see §71-1-49.

Prohibition against attorneys encouraging litigation, see §§73-3-57,73-3-59.

Trusts and combines in restraint or hindrance of trade, see §§75-21-1 et seq.

Conspiracy to defraud the state, see §§97-7-11 through97-7-15.

Conspiracy to prevent holding public office or discharging its duties, see §§97-7-17,97-7-19.

Conspiracy to stir up litigation, see §97-9-11.

Conspiracy by member or employee of Mississippi Transportation Commission, see §97-15-5.

Conspiracy to prevent persons from engaging in lawful work, see §97-23-41.

Conspiracy for unlawful restraint or boycott of trade or business, see §97-23-85.

Conspiracy to impede railroads, public utilities, and carriers, see §97-25-43.

Criminal enterprise under Racketeer Influenced and Corrupt Organization Act, see §§97-43-1 et seq.

Statute of limitation for prosecution for conspiracy, see §99-1-5.

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any felony violation, see §99-19-73.

JUDICIAL DECISIONS

1. In general; validity.

2. —First Amendment considerations.

3. Elements; generally.

4. —Overt act requirement.

5. Relation to underlying crime.

6. Relation to accessory before, after, fact.

7. Entrapment.

8. Indictment.

9. Evidence.

10. —Admissibility.

11. —Circumstantial.

12. —Hearsay.

13. —Proof of subsequent offense.

14. —Sufficiency.

15. —Sufficiency; conspiracy.

16. —Other.

17. Practice and procedure; trial.

18. —Jury instructions.

19. Penalties.

20. Sentencing.

1. In general; validity.

By its very nature, “conspiracy” is joint or group offense requiring concert of free will and, furthermore, conspiracy requires union of minds of conspirators. Franklin v. State, 676 So. 2d 287, 1996 Miss. LEXIS 308 (Miss. 1996).

A defendant’s convictions for both murder-for-hire capital murder under §97-3-19(2)(d) and conspiracy to commit capital murder under this section violated the constitutional protection against double jeopardy, since the definition of murder-for-hire in §97-3-19(2)(d) completely encompasses the agreement or conspiracy to commit capital murder. Colosimo v. Senatobia Motor Inn, 662 So. 2d 552, 1995 Miss. LEXIS 479 (Miss. 1995).

This section, in conjunction with §83-19-31 and former §83-19-73 [see now §83-19-31], is not void for vagueness due to the lack of written accounting procedures to be used to determine the minimum capital and surplus requirements of an insurance company. Gardner v. State, 531 So. 2d 805, 1988 Miss. LEXIS 481 (Miss. 1988).

In a prosecution for conspiracy to sell heroin, the trial court properly overruled defendant’s plea in bar based on the two year statute of limitations, where defendant was shown to be a conspirator in a drug-selling ring, and where the proof showed that a co-conspirator, tried jointly with defendant, had illegally sold heroin to a narcotics agent within the two-year span prior to the indictment of defendant; once a defendant is established as being a conspirator, he remains a part of the conspiracy until he has extricated himself therefrom by communicating his abandonment in a manner reasonably expected to reach his co-conspirators. Norman v. State, 381 So. 2d 1024, 1980 Miss. LEXIS 1922 (Miss. 1980).

When two or more persons are confederated for purpose of murdering another, and in furtherance of such common design such person is killed by one of the conspirators, the killing is the act of each regardless of which inflicted the mortal wound. Riley v. State, 208 Miss. 336, 44 So. 2d 455, 1950 Miss. LEXIS 252 (Miss. 1950).

2. —First Amendment considerations.

First Amendment precluded imposition of liability on participants in economic boycott against merchants in locality for all damages resulting from boycott, even though some of them engaged in violence and threats of violence, and even though such violence and threats contributed to success of boycott, because boycott was otherwise nonviolent, politically motivated, and designed to force governmental and economic change and to effectuate rights guaranteed by Constitution itself; however, First Amendment did not bar recovery from those who engaged in violence or threats of violence for losses proximately caused by their unlawful conduct. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 102 S. Ct. 3409, 73 L. Ed. 2d 1215, 1982 U.S. LEXIS 49 (U.S. 1982).

3. Elements; generally.

Conspiracy to commit armed robbery required only the agreement among two or more people to commit the crime, while armed robbery required the use of a deadly weapon which placed an individual in fear of immediate injury. Actual robbery required the establishment of several different facts than the agreement to commit the act; thus, the offenses were two separate crimes and defendant was not subjected to double jeopardy by convictions for both. Stovall v. State, 873 So. 2d 1056, 2004 Miss. App. LEXIS 454 (Miss. Ct. App. 2004).

This section does not require that all persons charged in the conspiracy be convicted for the conviction of one of the conspirators to be valid. Newell v. State, 754 So. 2d 1261, 1999 Miss. App. LEXIS 712 (Miss. Ct. App. 1999).

Crime of conspiracy to possess more than one kilogram of marijuana was complete upon agreement to exchange money for marijuana. Morgan v. State, 703 So. 2d 832, 1997 Miss. LEXIS 260 (Miss. 1997).

For there to be “conspiracy,” there must be recognition on part of conspirators that they are entering into common plan and knowingly intend to further its common purpose; conspiracy agreement need not be formal or express, but may be inferred from circumstances, particularly by declarations, acts, and conduct of alleged conspirators. Franklin v. State, 676 So. 2d 287, 1996 Miss. LEXIS 308 (Miss. 1996).

If there is an agreement, then knowledge of that agreement follows. The agreement need not be formal or express but may be inferred from the circumstances, particularly by declarations, acts, and conduct of the alleged conspirators. Ford v. State, 546 So. 2d 686, 1989 Miss. LEXIS 317 (Miss. 1989).

The crime of conspiracy is committed when 2 or more persons combine to accomplish an unlawful purpose. Each conspirator must recognize that he is entering into a common plan with the other and each must intend to further a common and unlawful purpose. Taylor v. State, 536 So. 2d 1326, 1988 Miss. LEXIS 609 (Miss. 1988).

In order for an individual to be a co-conspirator, there must be a recognition on his part that he is entering into some type of common plan, and knowingly intends to further its common purpose. Watson v. State, 521 So. 2d 1290, 1988 Miss. LEXIS 105 (Miss. 1988).

To constitute an individual a co-conspirator, there must be a recognition on his part that he is entering into some kind of common plan, and knowingly intends to further its common purpose. McDonald v. State, 454 So. 2d 488, 1984 Miss. LEXIS 1816 (Miss. 1984).

It is elementary that neither association with conspirators nor knowledge of illegal activity constitutes proof of participation in a conspiracy. McDonald v. State, 454 So. 2d 488, 1984 Miss. LEXIS 1816 (Miss. 1984).

At least 2 persons must agree for a conspiracy to exist. Moore v. State, 290 So. 2d 603, 1974 Miss. LEXIS 1705 (Miss. 1974).

A conspiracy to commit a crime is a complete offense, separate and distinct from, and does not become merged in, the commission of the crime contemplated by the conspiracy. Martin v. State, 197 Miss. 96, 19 So. 2d 488, 1944 Miss. LEXIS 277 (Miss. 1944).

4. —Overt act requirement.

The offense is complete without showing an overt act in furtherance of the conspiracy. Davis v. State, 485 So. 2d 1055, 1986 Miss. LEXIS 2778 (Miss. 1986).

Neither at common law nor under this section is an overt act pursuant to the conspiracy necessary for the completion of the crime. Moore v. State, 290 So. 2d 603, 1974 Miss. LEXIS 1705 (Miss. 1974).

Neither at common law nor under this section [Code 1942, § 2056] is an overt act pursuant to a conspiracy necessary for the completion of the crime. Martin v. State, 197 Miss. 96, 19 So. 2d 488, 1944 Miss. LEXIS 277 (Miss. 1944).

5. Relation to underlying crime.

Because the offenses of possession under Miss. Code Ann. §41-29-313 and conspiracy were considered separate criminal violations separately punishable, no double jeopardy principle was violated. Hunt v. State, 863 So. 2d 990, 2004 Miss. App. LEXIS 13 (Miss. Ct. App. 2004).

Although a substantive offense and a conspiracy to commit are 2 separate offenses, where there is a common nucleus of operative facts existing in both indictments, and where the ultimate fact has been determined in a prior acquittal of the substantive offense by a final judgment, a conspiracy trial is barred thereafter under the constitutional double jeopardy provision. Griffin v. State, 545 So. 2d 729, 1989 Miss. LEXIS 289 (Miss. 1989), limited, State v. Thomas, 645 So. 2d 931, 1994 Miss. LEXIS 554 (Miss. 1994).

The prosecution will not be permitted to convict an accused under the guise of a conspiracy charge where it could not proceed on, and convict for, the completed act, because of the entrapment defense. Barnes v. State, 493 So. 2d 313, 1986 Miss. LEXIS 2515 (Miss. 1986).

Conspiracy is a complete offense in itself, distinct from the commission of the crime contemplated by the conspiracy, and does not become merged with that crime. Davis v. State, 485 So. 2d 1055, 1986 Miss. LEXIS 2778 (Miss. 1986).

One who “conspires” with himself or with another who by law is precluded from coconspirator status is not guilty of crime of conspiracy in Mississippi; person who hires middleman to secure services of third person to commit murder, and middleman, may be convicted of conspiracy on basis of agreement with each other even though third person hired to actually carry out murder is in fact police confidential informant lacking coconspirator status. James v. State, 481 So. 2d 805, 1985 Miss. LEXIS 2358 (Miss. 1985).

Where one of 2 persons who conspired to do an illegal act is an officer who acted in the discharge of his duties, or is an informer for the state who entered into the conspiracy for the purpose of informing on the other party, such other person cannot be convicted of conspiracy. Moore v. State, 290 So. 2d 603, 1974 Miss. LEXIS 1705 (Miss. 1974).

Since a conspiracy to commit a crime is different from the crime that is the object of the conspiracy, the first necessarily involves joint action while the other does not. Moore v. State, 290 So. 2d 603, 1974 Miss. LEXIS 1705 (Miss. 1974).

6. Relation to accessory before, after, fact.

Use of the word “conspiracy” to label certain criminal conduct does not preclude use of the verb “to conspire” and the noun “conspiracy” to connote the sort of participation and involvement in the planning of a crime which is at least in part requisite to being guilty as an accessory before the fact. Malone v. State, 486 So. 2d 360, 1986 Miss. LEXIS 2419 (Miss. 1986).

Although defendant may very well have been an accessory after the fact under §97-1-5, the state never made a jury issue that he was engaged in a conspiracy under this section, where he had been trying to extricate his brother and a very good friend when he violated the law by possessing and transporting marijuana. Kennedy v. State, 454 So. 2d 495, 1984 Miss. LEXIS 2091 (Miss. 1984).

7. Entrapment.

Defendant who was charged with drug offenses following reverse sting operation wherein narcotics officers sold drugs owned by State was not entrapped as matter of law, as drug conspiracy in which defendant was allegedly involved was complete upon an agreement, between defendant and unindicted coconspirator, prior to involvement by law enforcement. Morgan v. State, 703 So. 2d 832, 1997 Miss. LEXIS 260 (Miss. 1997).

Adverse sale or reverse undercover operation, in which narcotics officers attempted to sell or furnish marijuana owned by the state to defendant and his colleagues, constituted entrapment, since the predisposition to commit the crime was instigated by the narcotics officers, and the defense of entrapment could be interposed to the charge of conspiracy to possess marijuana without the defendant taking the stand to testify. Barnes v. State, 493 So. 2d 313, 1986 Miss. LEXIS 2515 (Miss. 1986).

The prosecution will not be permitted to convict an accused under the guise of a conspiracy charge where it could not proceed on, and convict for, the completed act, because of the entrapment defense. Barnes v. State, 493 So. 2d 313, 1986 Miss. LEXIS 2515 (Miss. 1986).

8. Indictment.

Although defendant asserted that the indictment was fatally defective for failure to specify the contraband that defendant conspired to possess in a correctional facility, the two count indictment included the essential statutory elements of the charges against defendant and provided sufficient notice so that defendant suffered no prejudice in preparing a defense. Furthermore, defendant was procedurally barred from arguing an objection to a multi-count indictment on appeal because defendant failed to raise the objection at trial. Graham v. State, 204 So.3d 329, 2016 Miss. App. LEXIS 113 (Miss. Ct. App. 2016).

Indictment charging defendant conspiracy to posses precursors was not insufficient for failing to include the language “with the intent to unlawfully manufacture a controlled substance” because the crime of conspiracy and the crime of possession of precursors were inherently different and the crime of conspiracy did not merge with the crime of possession of precursors. While the State was required to inform a defendant of the underlying crime to which he conspired, the State did not have to prove every element of the underlying crime in order to prevail on a conspiracy charge; therefore, the indictment did not have to include language that defendant possessed precursors with the intent to manufacture a controlled substance or with knowledge that the precursor chemicals would be used to unlawfully manufacturer a controlled substance. Berry v. State, 996 So. 2d 782, 2008 Miss. LEXIS 604 (Miss. 2008).

Count I of the indictment charged defendant with conspiring to possess precursor chemicals which were not named or otherwise identified, but it did not charge him with conspiring to possess those unidentified precursors with either the intent to manufacture a controlled substance or with knowledge, or under circumstances where he reasonably should have known, that the precursor chemicals would be used to unlawfully manufacture a controlled substance, and thus the wording used in Count I failed to place defendant on notice as to whether he was being charged with conspiring to commit the crime specified in either Miss. Code Ann. §41-29-313(1)(a)(i), (1)(a)(ii), or (2)(c)(i); therefore, Count I of the indictment was defective because it failed to allege a crime, and the appellate court had to reverse and render defendant’s conviction in Count I. Berry v. State, 996 So. 2d 793, 2007 Miss. App. LEXIS 422 (Miss. Ct. App. 2007), rev'd, 996 So. 2d 782, 2008 Miss. LEXIS 604 (Miss. 2008).

Conspiracy count of the indictment was fatally defective where no crime was charged; in an assault case, the victim had to be identified in some manner as an essential fact describing the crime. Sanderson v. State, 881 So. 2d 878, 2004 Miss. App. LEXIS 35 (Miss. Ct. App.), aff'd in part and rev'd in part, 883 So. 2d 558, 2004 Miss. LEXIS 1199 (Miss. 2004).

It is not necessary that an indictment charging conspiracy include the penalty sections of the code applicable to the underlying crime in order to trigger the conspiracy provisions of this section, and to properly charge a felony. Gardner v. State, 531 So. 2d 805, 1988 Miss. LEXIS 481 (Miss. 1988).

Allegation of an overt act pursuant to a conspiracy, in a conspiracy indictment, does not convert the indictment into one for the commission of the crime contemplated by the conspiracy, even though the overt act charged is commission of the crime contemplated by it. Martin v. State, 197 Miss. 96, 19 So. 2d 488, 1944 Miss. LEXIS 277 (Miss. 1944).

An indictment charging two defendants with defrauding and conspiring to defraud the state out of the title to tax forfeited public lands by illegally purchasing such lands for a corporation in violation of the public policy of the state as exemplified by Code of 1930, § 6027, while not charging an offense under Code of 1930, § 833, was sufficient to charge a misdemeanor under this section [Code 1942, § 2056], the word “feloniously” in the indictment being mere surplusage. State v. Russell, 185 Miss. 13, 187 So. 540, 1939 Miss. LEXIS 144 (Miss. 1939).

An indictment charging the defendant with defrauding and conspiring to defraud the state out of tax forfeited public lands by illegally purchasing such lands for a corporation in violation of § 6027 of the Code of 1930, did not charge an offense under this section [Code 1942, § 2056], the words “shall conspire to defraud the state of Mississippi, or any department or political subdivision thereof, in any manner, or for any purpose,” under the rule of ejusdem generis limited their application to the specific acts made offenses under the statute which did not include that charged in the indictment. State v. Russell, 185 Miss. 13, 187 So. 540, 1939 Miss. LEXIS 144 (Miss. 1939).

9. Evidence.

Defendants’ conspiracy convictions were proper where the trial court did not err in admitting a letter to the first defendant, pursuant to Miss. R. Evid. 401 and 402, because the critical fact at issue was whether the first defendant was engaged in a conspiracy, and that letter was evidence that tended to make that fact more probable or less probable than without the evidence. Farris v. State, 906 So. 2d 113, 2004 Miss. App. LEXIS 1126 (Miss. Ct. App. 2004).

Where the victim claimed that defendant and his accomplice held her down, beat her in the face, and raped her, the trial court properly convicted defendant of two counts of sexual battery and one count of conspiracy to batter. Norris v. State, 893 So. 2d 1071, 2004 Miss. App. LEXIS 806 (Miss. Ct. App. 2004), cert. denied, 893 So. 2d 1061, 2005 Miss. LEXIS 122 (Miss. 2005).

In a case where defendant father and defendant adopted son were convicted of conspiracy to commit sexual battery, Miss. Code Ann. §§97-1-1 and97-3-95(1)(d), sexual battery, Miss. Code Ann. §97-3-95(1)(d), and contributing to the delinquency of a minor, Miss. Code Ann. §97-5-39(1), none of the issues raised by defendant father rose to the level of reversible error either standing alone or when considered together as the evidence supported the finding that defendant father was the ringleader of the abominable enterprise and he failed to demonstrate any procedural or substantive errors that warranted reversal; thus, defendant father’s convictions and sentences were affirmed. King v. State, 857 So. 2d 702, 2003 Miss. LEXIS 450 (Miss. 2003).

Defendant picked up drugs at a house, defendant in truck was stopped by the trooper, the trooper discovered the cocaine under the seat, and the truck belonged to defendant; thus, the evidence showed that defendant constructively possessed the drugs, that defendant was guilty of conspiracy to possess cocaine and of possession of cocaine with intent to sell, and that the trial court did not err in denying defendant’s motion for judgment notwithstanding the verdict or motion for new trial. Smith v. State, 839 So. 2d 489, 2003 Miss. LEXIS 65 (Miss. 2003).

10. —Admissibility.

Defendant’s convictions for capital murder in violation of Miss. Code Ann. §97-3-19(2)(e), aggravated assault in violation of Miss. Code Ann. §97-3-7(2), and conspiracy to commit aggravated assault were appropriate because the victim’s autopsy photographs were admissible since their probative value was not outweighed by any danger of undue prejudice and since there was a meaningful evidentiary purpose. Williams v. State, 3 So.3d 105, 2009 Miss. LEXIS 68 (Miss. 2009).

Evidence of an alleged assault on a police officer which occurred during a chase across state lines subsequent to the robbery of a store, was admissible in the ensuing prosecution for robbery and conspiracy to commit robbery, even though the assault charge was dismissed for lack of jurisdiction, since the assault was so interrelated with the events at the store that it constituted a single occurrence. Jones v. State, 567 So. 2d 1189, 1990 Miss. LEXIS 559 (Miss. 1990).

Statements made by co-conspirators after the objectives of the conspiracy have either succeeded or failed are inadmissible. Nixon v. State, 533 So. 2d 1078, 1987 Miss. LEXIS 2917 (Miss. 1987), cert. denied, 490 U.S. 1102, 109 S. Ct. 2458, 104 L. Ed. 2d 1012, 1989 U.S. LEXIS 2745 (U.S. 1989), overruled, Wharton v. State, 734 So. 2d 985, 1998 Miss. LEXIS 576 (Miss. 1998).

At the joint trial of 2 defendants charged with conspiracy to commit murder, admission, in prosecution’s case-in-chief, of co-conspirators’ post-arrest statements, wherein each co-defendant pointed a finger at the other, was reversible error, where these statements fell outside the co-conspirator’s exemption from the hearsay rule, did not interlock in substantial particulars, and were not attended by other indicia of reliability sufficient to satisfy the conspirators’ rights under the confrontation of witnesses clauses of federal and state constitutions. Mitchell v. State, 495 So. 2d 5, 1986 Miss. LEXIS 2659 (Miss. 1986), overruled in part, Smith v. State, 986 So. 2d 290, 2008 Miss. LEXIS 339 (Miss. 2008).

Threats made by conspirator out of presence of accused inadmissible before conspiracy is established. Rich v. State, 124 Miss. 272, 86 So. 770, 1920 Miss. LEXIS 506 (Miss. 1920).

11. —Circumstantial.

Circumstantial evidence is sufficient to establish the existence of a conspiracy. Watson v. State, 722 So. 2d 475, 1998 Miss. LEXIS 459 (Miss. 1998).

Existence of conspiracy, and defendant’s membership in it, may be proved entirely by circumstantial evidence. Franklin v. State, 676 So. 2d 287, 1996 Miss. LEXIS 308 (Miss. 1996).

The trial judge is given great discretion in receiving circumstantial evidence where a defendant is on trial for conspiracy. Peoples v. State, 501 So. 2d 424, 1987 Miss. LEXIS 2284 (Miss. 1987).

Conspiracy may be shown by circumstantial evidence. Pickett v. State, 139 Miss. 529, 104 So. 358, 1925 Miss. LEXIS 174 (Miss. 1925).

Criminal conspiracy may be proved by the acts of parties, or by circumstances as well as by their agreement. Osborne v. State, 99 Miss. 410, 55 So. 52, 1910 Miss. LEXIS 33 (Miss. 1910).

12. —Hearsay.

Statements made by a coconspirator of a party during the course and in furtherance of the conspiracy are not hearsay, but are factual elements of the criminal offense and not mere statements. Ponthieux v. State, 532 So. 2d 1239, 1988 Miss. LEXIS 483 (Miss. 1988).

13. —Proof of subsequent offense.

Subsequent offense may be proved, to show criminal knowledge or intent. King v. State, 123 Miss. 532, 86 So. 339, 1920 Miss. LEXIS 54 (Miss. 1920).

14. —Sufficiency.

Evidence was sufficient to support defendant’s conviction of conspiracy to commit robbery because it showed that he was not only present during the commission of the robbery but he also helped bring it about by knocking on the window of the victim’s bedroom to buy drugs, saw the shoe box where the victim kept drugs and money, he returned a second time, he was armed, and did nothing to stop the robbery. Defendant was later seen sorting the money and drugs from the shoe box at a friend’s house. Story v. State, — So.3d —, 2019 Miss. App. LEXIS 539 (Miss. Ct. App. Nov. 5, 2019).

Sufficient evidence supported defendant’s conviction for conspiracy to commit armed robbery because a reasonable juror could accept defendant’s confession that he conspired with his brother to rob the restaurant but still reject his claim that no gun was contemplated as a self-serving attempt to minimize his culpability the jury could go on to infer that an armed robbery was agreed as the brother did, in fact, bring a gun into the restaurant and use it in the robbery. Allen v. State, 212 So.3d 98, 2016 Miss. App. LEXIS 718 (Miss. Ct. App. 2016).

Evidence supported defendant’s conviction for conspiracy to possess marijuana because defendant confessed to ownership of marijuana that defendant had sent to a house for defendant to sell. Furthermore, the recipient of the package at the house said the recipient was expecting a package, the recipient used a false name to sign for the package, the recipient threw the package to the ground when the recipient spotted officers observing the recipient, defendant came to the house to get the package, and defendant admitted ownership of the package. Jefferson v. State, 214 So.3d 1071, 2016 Miss. App. LEXIS 705 (Miss. Ct. App. 2016), cert. dismissed, 229 So.3d 118, 2017 Miss. LEXIS 396 (Miss. 2017).

Evidence supported defendant’s conviction of conspiracy to possess a controlled substance inside a correctional facility because (1) an officer observed defendant and another inmate stand by the exterior door to a jail’s yard, bend down, and retrieve items from underneath the door; (2) an officer found a small opening that could allow someone to slip an item through the door; and (3) officers found marijuana in envelopes in a blanket that defendant tried to pass to the other inmate when the inmates were searched as they reentered the jail. Graham v. State, 204 So.3d 329, 2016 Miss. App. LEXIS 113 (Miss. Ct. App. 2016).

Evidence supported defendant’s conspiracy to commit armed robbery conviction because, after defendant lost money to the victim in a dice game, defendant got in a truck with the victim, while defendant’s coconspirators followed close behind as they planned on getting some money and dope from the victim, and, when the victim stopped in a driveway, a coconspirator pulled out a gun and demanded the victim’s money. After the victim was shot in a struggle, one of the coconspirator’s fled with some cash, which the coconspirators later split. Thomas v. State, 180 So.3d 756, 2015 Miss. App. LEXIS 609 (Miss. Ct. App. 2015).

Sufficient evidence existed that defendant did more than merely talk about killing the victim, and instead entered into an agreement that she would be killed; although the jury rejected a murder conviction, another defendant’s testimony supported a reasonable inference that this defendant had entered into a common plan to kill the victim and knowingly intended to further that plan’s purpose, and thus the evidence was sufficient to support his conviction of conspiracy to commit murder, and the conviction was not against the weight of the evidence. Hartfield v. State, 161 So.3d 125, 2015 Miss. LEXIS 125 (Miss. 2015).

Sufficient circumstantial evidence supported defendant’s conviction for conspiracy to distribute under Miss. Code Ann. §§97-1-1 (Supp. 2010) and41-29-139 (Rev. 2009) as the evidence showed that a witness had purchased marijuana at defendant’s house, that a large quantity of it was found in multiple locations throughout the house, that the house smelled strongly of it, and that digital scales and packaging materials were also found. Further, defendant admitted that the marijuana belonged to him. Jackson v. State, 73 So.3d 1176, 2011 Miss. App. LEXIS 296 (Miss. Ct. App.), cert. denied, 73 So.3d 1168, 2011 Miss. LEXIS 523 (Miss. 2011).

Verdict finding defendant guilty of selling cocaine in violation of Miss. Code Ann. §41-29-139(a)(1) and conspiracy to sell cocaine in violation of Miss. Code Ann. §97-1-1(a)(1) was not against the overwhelming weight of the evidence as there was testimony from several witnesses, including an accomplice, a narcotics agent, and a police officer, that defendant was involved in the drug sale. In addition, the jury was permitted to watch a video showing defendant’s physical behavior during the drug sale negotiations in which defendant was shown talking to the accomplice with his hand over his mouth as the accomplice negotiated with an informant about the price of the cocaine. Foriest v. State, 4 So.3d 385, 2009 Miss. App. LEXIS 36 (Miss. Ct. App. 2009).

Evidence was sufficient to sustain a conviction for conspiracy to commit armed robbery because defendant disguised himself as a woman, entered the bank with his co-defendants, and shuffled around nervously as another defendant attempted to hold up the teller with a handgun, all the while shielding his face from view. Thereafter, defendant was caught attempting to escape from the abandoned safe house and he was still wearing the same women’s skirt that he wore during the attempted robbery. Glenn v. State, 996 So. 2d 148, 2008 Miss. App. LEXIS 584 (Miss. Ct. App. 2008).

There was sufficient evidence to uphold a conviction for conspiracy to commit armed robbery under Miss. Code Ann. §97-1-1 where the evidence showed that defendant was in a casino with the other perpetrators, he stood behind one of them as a robbery took place, he ran out with them, and he received a portion of stolen money. Quawrells v. State, 938 So. 2d 370, 2006 Miss. App. LEXIS 689 (Miss. Ct. App. 2006).

Where defendant’s accomplice cooperated with police and stated in a recorded conversation that defendant had come to Mississippi “to pick up drugs,” the evidence was sufficient to support defendant’s conviction for conspiracy to distribute marijuana. Police found twenty-seven pounds of marijuana that had been transferred to defendant’s vehicle. Walker v. State, 911 So. 2d 998, 2005 Miss. App. LEXIS 698 (Miss. Ct. App. 2005).

Where defendant and a conspirator hid their car, attempted to remove tires from a vehicle in a car lot at two o’clock in the morning, and tried to escape when confronted by authorities, the evidence supported his conviction for conspiracy to commit grand larceny. A jury could reasonably infer that defendant lacked consent to remove the tires; the State was not required to present direct testimony that defendant lacked consent. Brownlee v. State, 912 So. 2d 1000, 2005 Miss. App. LEXIS 187 (Miss. Ct. App. 2005).

Court properly denied defendant’s motion for a judgment notwithstanding the verdict after he was convicted of conspiracy to commit armed robbery because there was nothing to indicate an insufficiency of evidence for fair-minded jurors to convict him of conspiracy pursuant to Miss. Code Ann. §97-1-1(a)-(h). One witness offered direct testimony as to having seen defendant place a stocking over his face before the commission of the crime; store clerk also identified defendant as one of her assailants. Young v. State, 910 So. 2d 26, 2005 Miss. App. LEXIS 5 (Miss. Ct. App. 2005).

There was sufficient evidence to support defendant’s conviction under Miss. Code Ann. §41-29-313 and for conspiracy given that defendant had purchased an unusually large number of pseudoephedrine packages, defendant attempted to conceal the packages from police, and defendant admitted that defendant was requested to purchase the packages by another individual in return for cash when defendant knew that the individual had been involved in the manufacturer of methamphetamine. Hunt v. State, 863 So. 2d 990, 2004 Miss. App. LEXIS 13 (Miss. Ct. App. 2004).

Although a witness was unable to testify about the correct color of a get-away car, there was sufficient evidence to support convictions for armed robbery and conspiracy to commit armed robbery based on the identification of witnesses and the testimony of another perpetrator. Quinn v. State, 873 So. 2d 1033, 2003 Miss. App. LEXIS 1006 (Miss. Ct. App. 2003), cert. denied, 873 So. 2d 1032, 2004 Miss. LEXIS 597 (Miss. 2004).

Defendant and the first co-defendant entered the car, the first co-defendant took the victim’s money at gunpoint which was divided equally, a second co-defendant then shot and killed the victim with the gun defendant had brought, and defendant and the first co-defendant testified that they had planned the robbery, thus, the evidence was sufficient to support defendant’s convictions for conspiracy to commit robbery with a deadly weapon, robbery with a deadly weapon, and manslaughter. Harrington v. State, 859 So. 2d 1054, 2003 Miss. App. LEXIS 1084 (Miss. Ct. App. 2003).

Defendant picked up drugs at a house, defendant in truck was stopped by the trooper, the trooper discovered the cocaine under the seat, and the truck belonged to defendant; thus, the evidence showed that defendant constructively possessed the drugs, that defendant was guilty of conspiracy to possess cocaine and of possession of cocaine with intent to sell, and that the trial court did not err in denying defendant’s motion for judgment notwithstanding the verdict or motion for new trial. Smith v. State, 839 So. 2d 489, 2003 Miss. LEXIS 65 (Miss. 2003).

Evidence that the defendant gave a gun to another man who had said he wanted to shoot the victim, told the man the victim was outside, was in the alley with the man who shot the victim when the victim was shot, was seen running from the alley with the other man after the shooting while they both carried guns, and asked the other man “Did you get him?” was sufficient to support a conviction for conspiracy to commit murder. Brown v. State, 796 So. 2d 223, 2001 Miss. LEXIS 176 (Miss. 2001).

Evidence was sufficient to establish a conspiracy to commit murder where a witness testified that (1) before the shooting, while he, the defendant, and a coconspirator were together, the coconspirator asked the defendant, “Are you going to do that?” and the defendant responded, “Yeah, I’m fixing to do that,” and (2) after the shooting, the coconspirator asked “‘did you do that?” and the defendant responded “Yeah, I got that m*****f*****.” Ellis v. State, 778 So. 2d 114, 2000 Miss. LEXIS 242 (Miss. 2000).

Evidence was sufficient to establish a conspiracy to sell cocaine where (1) a confidential informant testified that upon entering the coconspirator’s residence, he was directed to a bedroom, where he found the defendant and the coconspirator, (2) the coconspirator then asked the informant what he wanted, and the informant responded that he wanted to purchase two rocks of crack cocaine, (3) the defendant then retrieved a matchbox and directed the coconspirator to “serve” him, (4) the informant then purchased two rocks of cocaine for $25, and (5) a police officer listened to the transaction over a radio transmitter with which the informant had been equipped and testified to the events. Hervey v. State, 764 So. 2d 457, 2000 Miss. App. LEXIS 95 (Miss. Ct. App. 2000).

Testimony of a co-conspirator was not too late to establish the conspiracy where there was sufficient prior evidence of the existence of a conspiracy based on the testimony of the victims, the arresting officer’s investigation, and defendant’s own statement. Applewhite v. State, 753 So. 2d 1039, 2000 Miss. LEXIS 1 (Miss. 2000).

Conviction reversed where evidence was insufficient to show a recognition on the part of the two sets of conspirators that they were entering into a common plan, knowingly intending to further its common purpose. Lee v. State, 756 So. 2d 744, 1999 Miss. LEXIS 382 (Miss. 1999).

Evidence was sufficient to establish a conspiracy to defraud a conservatorship where (1) the defendant and others received what appeared to be an excessive and unreasonable amount of money from the conservatorship, (2) the defendant’s decisions with regard to expenditures for security were not warranted, especially as paying family and friends $25 per hour for questionable security was not justified, and (3) an attorney drafted and submitted petitions and orders for the defendant’s unjustifiable expenditures, and a chancellor with whom the defendant had a close personal relationship placed his stamp of approval and the appearance of legality on these conservatorship expenditures by signing the orders. Morgan v. State, 741 So. 2d 246, 1999 Miss. LEXIS 256 (Miss. 1999).

Evidence was insufficient to support a conviction for conspiracy to sell a controlled substance arising from the introduction by the defendant’s alleged coconspirator of a confidential informant to the defendant and negotiations for a sale of marijuana since one cannot be convicted of conspiring with a confidential informant and since there simply was no evidence that the defendant knew that his alleged coconspirator would bring potential customers to him in order to facilitate the sale of illegal drugs. McDougle v. State, 721 So. 2d 660, 1998 Miss. App. LEXIS 1128 (Miss. Ct. App. 1998).

As long as the defendant was furnishing the capital for the acquisition of illegal drugs and the drugs were being purchased at her specific direction or request, she came into constructive possession of the drugs at the time of purchase and was the “owner” of the drugs for purposes of analysis of whether she conspired to commit a crime. Martin v. State, 726 So. 2d 1210, 1998 Miss. App. LEXIS 1124 (Miss. Ct. App. 1998).

Evidence was insufficient to support a conviction for conspiracy to sell a controlled substance where a witness admitted that he knew that a third party wanted to buy marijuana and that the defendant was in the business of selling marijuana, but there was no evidence that the defendant knew that the witness would bring potential customers to him in order to facilitate a sale of marijuana. McDougle v. State, 721 So. 2d 660, 1998 Miss. App. LEXIS 1128 (Miss. Ct. App. 1998).

Defendant’s convictions for sale of controlled substance and conspiracy to sell controlled substance were supported by evidence that defendant sold two rocks of crack cocaine to undercover informant and that defendant conspired with relative to sell, and did sell, two rocks of crack cocaine to undercover officer next day. Herring v. State, 691 So. 2d 948, 1997 Miss. LEXIS 37 (Miss. 1997).

Sole evidence of conspiracy, that juvenile defendants went with other boys to “mess with” victim, was insufficient to support their convictions for conspiracy to commit murder; during period defendants and others threw rocks at victim and kicked him, one of boys in group left and returned with gun, with which he shot victim, and he thereafter pointed gun at one of defendants and another boy because “he knew [they were] gon’ to tell it.” Franklin v. State, 676 So. 2d 287, 1996 Miss. LEXIS 308 (Miss. 1996).

The evidence was insufficient to support a conviction for conspiracy to sell cocaine where the defendant directed the buyer to the seller’s house, accompanied the buyer to the door, knocked on the door, told the seller that they wanted to purchase cocaine, and remained with the buyer and seller while the sale took place, but there was no evidence that the seller knew that the defendant would bring the buyer to his home; although an agreement to sell cocaine could possibly be inferred, there was insufficient evidence of the alleged conspirators’ recognition that they were “entering into a common plan and knowingly intended to further its common purpose.” Johnson v. State, 642 So. 2d 924, 1994 Miss. LEXIS 443 (Miss. 1994).

The uncorroborated testimony of an alleged accomplice was insufficient to support a conviction for conspiracy to manufacture marijuana where the accomplice contradicted himself concerning payments allegedly made to him by the defendant, and another witness’ testimony substantially impeached that of the accomplice; although the other witness had reasons for bias and a fair-minded juror could reject his testimony as unconvincing, it could not be discarded so completely as to eliminate reasonable doubt, particularly when combined with the accomplice’s self-contradictory statements. Flanagan v. State, 605 So. 2d 753, 1992 Miss. LEXIS 449 (Miss. 1992).

Evidence that a police officer, while standing outside an apartment door, overheard a conversation between 3 people inside the apartment concerning a sale of cocaine, was insufficient to support a conviction for conspiracy to distribute the cocaine where the statements overheard by the officer were not identified as coming from any particular person. Mickel v. State, 602 So. 2d 1160, 1992 Miss. LEXIS 203 (Miss. 1992).

The evidence was insufficient to support a conviction of conspiracy with the intent to distribute cocaine where the only evidence of an agreement were statements made by unidentified occupants of an apartment–“pass me the pipe,” “we have got to get this stuff sold-I need the money,” and “there is plenty more where that came from”–which were heard by a police detective just before he entered the apartment, since this evidence did not prove that the defendant himself was engaged in a conspiracy to distribute cocaine, so that only surmise of a criminal conspiracy existed. Thomas v. State, 591 So. 2d 837, 1991 Miss. LEXIS 971 (Miss. 1991).

The evidence was sufficient to support a conviction of conspiracy to commit perjury with respect to the death of an infant at the defendant’s apartment, where there was testimony that the defendant stated that he didn’t want the police to know that he and a friend had been at the apartment, the defendant’s daughter, who also resided at the apartment, did not reveal to the police that the defendant had been at the apartment, the daughter stated that she had agreed to stick to that story and she continued in that agreement when she testified before the grand jury, the other resident of the apartment testified that the defendant did not want the police to know that he and a friend had been at the apartment, she did not tell the police that they had been there, and she understood that she and the others had an agreement not to mention that the defendant and his friend had been at the apartment after the baby’s death had been discovered. Smallwood v. State, 584 So. 2d 733, 1991 Miss. LEXIS 405 (Miss. 1991).

The evidence was insufficient to support a finding that the defendant conspired with her sister to sell cocaine where the only evidence regarding the sister showed that she was present at the time the police searched a trailer she owned and found residues of cocaine, she screamed when the police entered the trailer, she claimed that money found during the search was hers, and a broken test tube with cocaine residue was found in her purse; none of this evidence established an agreement, nor did it imply an agreement, since evidence that the defendant sold cocaine and that her sister may have possessed cocaine for personal use left too much to the realm of speculation and conjecture. Clayton v. State, 582 So. 2d 1019, 1991 Miss. LEXIS 366 (Miss. 1991).

The evidence was insufficient to support a conspiracy conviction stemming from attempts to influence jurors, where the only evidence which suggested that the defendant was a member of the conspiracy was that she accompanied her husband when he discussed the conspiracy with a coconspirator, and it was possible that the phraseology used was so general that a disinterested or unknowledgeable bystander would not have understood specifically what they were talking about. King v. State, 580 So. 2d 1182, 1991 Miss. LEXIS 319 (Miss. 1991).

The evidence was sufficient to support convictions of conspiracy and bribery stemming from attempts to influence jurors, where the secretary for one of the defendant’s attorneys testified that the defendant did some of the talking when he and his father asked her to type up a list containing the jurors’ names and that the defendant took the list from her and made photocopies of it, a witness testified that the defendant drove his father to the witness’ home where the father discussed the scheme to bribe a juror while the defendant listened, a juror testified that during the trial the defendant and his father entered the store where she worked, though they left without speaking to her, and an investigator testified that he discovered the photocopies of the jury list under the seat of the defendant’s truck. King v. State, 580 So. 2d 1182, 1991 Miss. LEXIS 319 (Miss. 1991).

The evidence was sufficient to support a conviction for conspiracy, in spite of the defendant’s argument that the evidence failed to prove beyond a reasonable doubt that he and the alleged co-conspirator ever agreed to commit a crime or were even acquainted and his suggestion that there was a lack of seriousness in his intentions, where the defendant made substantially incriminating statements to the sheriff, the record included a tape recording of the defendant’s conversations with a friend who was allegedly engaged to kill the victim, and the alleged co-conspirator appeared at the time suggested by the plan to find the victim’s body. Mitchell v. State, 572 So. 2d 865, 1990 Miss. LEXIS 722 (Miss. 1990).

The evidence was insufficient to support a verdict for conspiracy to commit robbery at a convenience store because there was neither proof of common design nor understood purpose to commit a robbery where the evidence showed only that there were 4 people riding in a car, the owner of the car testified that he stopped at the convenience store in order to let one man buy beer and to let the defendant use the rest room, and he testified that there were no conversations among the 4 before stopping at the store. Jones v. State, 567 So. 2d 1189, 1990 Miss. LEXIS 559 (Miss. 1990).

Defendant’s conviction of conspiracy to murder her husband was supported by evidence showing that up to 2 days before her husband disappeared she had been living with an alleged coconspirator; that she had kept letters written to her by the alleged coconspirator stating that he wished the husband could be taken out of the picture; that a couple days before the husband’s death she gave to the alleged coconspirator a gun her husband had bought for her, and had not questioned the coconspirator about the gun after her husband’s disappearance; and on the night when the husband was last seen alive, she had called the husband and told him that her car had stalled at a place not far from where the husband’s body was found 2 days later. Peoples v. State, 501 So. 2d 424, 1987 Miss. LEXIS 2284 (Miss. 1987).

Defendant’s conviction of conspiracy to possess heroin was sustained by evidence showing that she had traveled 2,000 miles from San Diego, California to Jackson, Mississippi with codefendant, that a telephone call to her parents’ home notified co-defendant of the arrival of the heroin, that she waited in the car while co-defendant picked up heroin, and that her purse contained a substance used as cutting agent for heroin. Davis v. State, 485 So. 2d 1055, 1986 Miss. LEXIS 2778 (Miss. 1986).

15. —Sufficiency; conspiracy.

Sufficient evidence was presented to allow a jury to infer that a conspiracy existed; co-defendant one testified that he, defendant, and co-defendant two had sex with the victim at some point throughout the night and that it happened all at the same time, and the evidence showed the victim’s surprise when learning of the incident, as well as the attempt by defendant and co-defendants to explain and cover-up the incident. Pugh v. State, 270 So.3d 949, 2018 Miss. App. LEXIS 455 (Miss. Ct. App. 2018).

State presented sufficient evidence for fair-minded jurors to convict defendant of conspiracy to commit armed robbery because the evidence clearly showed two men working in agreement with each other to rob a store; the men entered the store together, held up the employees at gunpoint, took the money, and ran off at the same time. Lenoir v. State, 224 So.3d 85, 2017 Miss. LEXIS 79 (Miss. 2017).

Evidence was sufficient to convict defendant of conspiracy because one of the co-conspirator’s was seen in defendant’s vehicle armed with a shotgun; she followed the instructions of another co-conspirator instructing her to block the road after the victims entered, ensuring that the victims would be exposed to an attack; she drove one of the co-conspirator’s away from the scene; and she returned later to look for one of the victims while evidencing hostile intent. Hayes v. State, 168 So.3d 1065, 2013 Miss. App. LEXIS 744 (Miss. Ct. App. 2013), cert. denied, 2014 Miss. LEXIS 297 (Miss. June 12, 2014), cert. denied, 140 So.3d 940, 2014 Miss. LEXIS 296 (Miss. 2014).

Defendant’s conspiracy conviction was not against the overwhelming weight of the evidence because there was strong circumstantial evidence of a prior understanding to kill in the coordinated actions of the participants. Hayes v. State, 168 So.3d 1065, 2013 Miss. App. LEXIS 744 (Miss. Ct. App. 2013), cert. denied, 2014 Miss. LEXIS 297 (Miss. June 12, 2014), cert. denied, 140 So.3d 940, 2014 Miss. LEXIS 296 (Miss. 2014).

Sufficient evidence supported defendant’s conviction for conspiracy to commit murder, even though there was no express agreement between defendant and two co-defendants, because the evidence showed that defendant and co-defendants, while engaged in different acts, all pursued the common object of the victim’s death, and the State was not required to prove the existence of an express agreement to murder the victim. Graham v. State, 120 So.3d 382, 2013 Miss. LEXIS 339 (Miss. 2013).

Evidence supported defendant’s conviction of conspiracy, as defendant admitted at trial that defendant intended to cook methamphetamine, in a bedroom where defendant’s associates were sleeping police officers found 156 dosage units of pseudoephedrine, and in one associate’s truck officers found a receipt for the purchase of pseudoephedrine. Edmonds v. State, 125 So.3d 98, 2013 Miss. App. LEXIS 529 (Miss. Ct. App. 2013).

Weight of the evidence was sufficient to convict defendant of conspiracy to commit arson in violation of Miss. Code Ann. §97-1-1 and attempted arson in violation of Miss. Code Ann. §97-17-9 because an accomplice’s testimony that he and defendant entered into an agreement for him to burn the victim’s vehicle was uncontradicted; in addition to the testimony of the accomplice was the of other witnesses who provided additional evidence of defendant’s animosity towards the victim. Bradford v. State, 102 So.3d 312, 2012 Miss. App. LEXIS 505 (Miss. Ct. App. 2012).

Evidence was sufficient to convict defendant of conspiracy to commit arson in violation of Miss. Code Ann. §97-1-1 and attempted arson in violation of Miss. Code Ann. §97-17-9 because the jury could conclude from an accomplice’s testimony that he and defendant entered into an agreement for him to burn the victim’s vehicle; the accomplice told the same basic story to the police that he told to the jury, and nothing in the record indicated that the accomplice’s testimony was unreasonable, inconsistent, or impeached. Bradford v. State, 102 So.3d 312, 2012 Miss. App. LEXIS 505 (Miss. Ct. App. 2012).

Defendant’s conviction for conspiracy under Miss. Code Ann. §97-1-1(i) was proper because there was direct evidence that defendant and two others walked into the store, while one served as lookout, one took beer, and the other took money. The three argued over who had whose back while robbing the store and later, the three divided the money. Taylor v. State, 62 So.3d 962, 2011 Miss. LEXIS 272 (Miss. 2011).

Evidence was sufficient to support defendant’s conviction, pursuant to Miss. Code Ann. §97-1-1(1)(a), for conspiracy to bring a controlled substance into a jail; defendant’s letters to his girlfriend clearly indicated such a conspiracy and showed that the girlfriend was trying to comply with defendant’s request for the contraband. Green v. State, 25 So.3d 1086, 2010 Miss. App. LEXIS 3 (Miss. Ct. App. 2010).

Evidence, including the testimony of defendant’s co-conspirator and other witnesses, as well as written statement by defendant and physical evidence, was sufficient to support defendant’s conviction of of conspiracy to sell a controlled substance, in violation of Miss. Code Ann. §97-1-1. Anderson v. State, 23 So.3d 1087, 2009 Miss. App. LEXIS 842 (Miss. Ct. App. 2009).

Defendant’s convictions for uttering a forgery under Miss. Code Ann. §97-21-1 and for conspiracy under Miss. Code Ann. §97-1-1 were affirmed because there was sufficient evidence for the jury to find that defendant possessed the forged checks and attempted to pass these checks off as true and although the co-conspirator was an admitted drug addict, his testimony was not self-contradictory or thoroughly impeached. Nelson v. State, 32 So.3d 534, 2009 Miss. App. LEXIS 601 (Miss. Ct. App. 2009), cert. denied, 31 So.3d 1217, 2010 Miss. LEXIS 186 (Miss. 2010).

Evidence was sufficient that defendant possessed and conspired to possess illegal amounts of pseudoephedrine intending to use them in an unlawful manner in violation of Miss. Code Ann. 97-1-1(a) because his passenger had an illegal amount of pseudoephedrine, and defendant admitted that he drove her to purchase pills to sell for the eventual manufacture of methamphetamine. Gales v. State, 29 So.3d 65, 2009 Miss. App. LEXIS 629 (Miss. Ct. App. 2009).

Defendant’s conviction for conspiracy to commit capital murder was proper pursuant to Miss. Code Ann. §97-1-1(1)(a) because a witness testified that he scouted the victims’ property, arranged a meeting between defendant and another individual, and participated with that individual in an attempt to murder the victims. Vickers v. State, 994 So. 2d 200, 2008 Miss. App. LEXIS 208 (Miss. Ct. App.), cert. denied, 998 So. 2d 1010, 2008 Miss. LEXIS 675 (Miss. 2008).

Because there was sufficient evidence to support a conviction on the conspiracy to possess marijuana with intent to sell more than five kilograms of marijuana, the necessary nexus existed to link defendant to the possession of the 25 pounds of marijuana bricks found in the co-conspirator’s vehicle; thus, there was sufficient evidence to support her conviction for possession of more than five kilograms of marijuana. Williams v. State, 984 So. 2d 989, 2007 Miss. App. LEXIS 376 (Miss. Ct. App. 2007), cert. dismissed, 2008 Miss. LEXIS 332 (Miss. June 26, 2008).

Evidence was sufficient to convict defendant of conspiracy to possess marijuana with intent to sell more than five kilograms of marijuana under Miss. Code Ann. §97-1-1(a) because a co-conspirator’s vehicle contained more than 25 pounds of marijuana, the mere amount of marijuana was sufficient to support a charge of possession with intent to transfer, sell, or distribute more than five kilograms of marijuana, and defendant blocked a deputy’s attempt to pull over a co-conspirator’s vehicle. Williams v. State, 984 So. 2d 989, 2007 Miss. App. LEXIS 376 (Miss. Ct. App. 2007), cert. dismissed, 2008 Miss. LEXIS 332 (Miss. June 26, 2008).

Evidence was sufficient to convict defendant of conspiracy where witness testimony indicated that defendant and another person formed a union of the minds intent on selling cocaine to the agent, and defendant’s conduct amounted to circumstantial evidence of an agreement with the other person to sell cocaine. Dear v. State, 960 So. 2d 542, 2006 Miss. App. LEXIS 931 (Miss. Ct. App. 2006), cert. denied, 959 So. 2d 1051, 2007 Miss. LEXIS 396 (Miss. 2007).

State’s theory of the case was that defendant and the driver of the car that pulled into the victim’s driveway had engaged in a prior conspiracy to steal the victim’s truck rims, but there was no evidence of a “union of the minds” of defendant and the driver because the evidence showed that (1) when the car pulled into the driveway, defendant ran and hid behind the house and, clearly, if the two parties had been acting in concert defendant would have recognized his co-conspirator and not hid; (2) defendant left on foot and not in the car, even though the car was still in the driveway; and (3) although the rims were removed from the truck, defendant made no attempt to put them into the car that was in the driveway; thus, although the appearance of the car in the victim’s driveway was somewhat puzzling, a finding that its appearance was due to the furtherance of a conspiracy to steal the rims off of the truck would be an impermissible stretch. Therefore, the evidence was insufficient to support defendant’s conviction for conspiracy to commit grand larceny. Smith v. State, 881 So. 2d 908, 2004 Miss. App. LEXIS 401 (Miss. Ct. App. 2004).

16. —Other.

Evidence against defendant did not preponderate so heavily against the verdict that the failure to grant a new trial would sanction an unconscionable injustice because the weight of the evidence suggested that store employees should have recognized defendant’s voice during the commission of the robbery; though the employees knew defendant from prior encounters, the robber alleged to be defendant wore a hooded sweatshirt partially covering his face when he entered the dimly lit store. Lenoir v. State, 224 So.3d 85, 2017 Miss. LEXIS 79 (Miss. 2017).

Conviction of conspiracy was not supported by evidence which, although raising strong suspicions that defendant and others were illegally involved in drug related activities, failed to show that they had intended or agreed to sell, barter, transfer, and distribute marijuana. McCray v. State, 486 So. 2d 1247, 1986 Miss. LEXIS 2888 (Miss. 1986).

17. Practice and procedure; trial.

Issue was never framed for the jury to determine appellant’s guilt or lack thereof as to the charge of conspiracy. Appellant’s contention that the crime of conspiracy to commit armed robbery was presented to the jury and subsequently dismissed by the jury in his first trial such that double jeopardy and collateral estoppel would attach was unfounded. Newell v. State, 180 So.3d 701, 2015 Miss. App. LEXIS 236 (Miss. Ct. App. 2015).

Defendants were properly convicted of conspiracy to commit armed robbery because defendant’s did not fail to receive a fair and impartial trial due to juror misconduct. James v. State, 146 So.3d 985, 2014 Miss. App. LEXIS 66 (Miss. Ct. App.), cert. denied, 146 So.3d 981, 2014 Miss. LEXIS 463 (Miss. 2014).

Defendants were properly convicted of conspiracy to commit armed robbery because the form of the verdict constituted an intelligent answer to the issues submitted to the jury and allowed the jury’s intent to be understood in a reasonably clear manner. James v. State, 146 So.3d 985, 2014 Miss. App. LEXIS 66 (Miss. Ct. App.), cert. denied, 146 So.3d 981, 2014 Miss. LEXIS 463 (Miss. 2014).

Trial court had jurisdiction over conspiracy charge, although defendant allegedly agreed with coconspirator to rob victim while they were in Louisiana, where victim was robbed in Mississippi. Taylor v. State, 682 So. 2d 359, 1996 Miss. LEXIS 532 (Miss. 1996).

In a prosecution for capital murder and conspiracy to commit capital murder, the trial court committed reversible error in failing to place the initial burden on the State to establish a prima facie case of racial discrimination in the defendant’s use of his peremptory challenges, before concluding that the defendant failed to offer a race-neutral reason for challenging one of the jurors, since the defendant was arbitrarily and erroneously denied the use of one of his peremptory challenges, and the composition of the jury was directly altered as a result. Colosimo v. Senatobia Motor Inn, 662 So. 2d 552, 1995 Miss. LEXIS 479 (Miss. 1995).

Since conspiracy and burglary are separate and distinct crimes requiring proof of different elements, a defendant did not have a double jeopardy claim based on the prosecution of these 2 crimes arising from the same incident, despite the fact that the prosecution chose to prosecute the defendant for these crimes at separate trials. House v. State, 645 So. 2d 931, 1994 Miss. LEXIS 537 (Miss. 1994).

At trial of charge of conspiracy to distribute cocaine, a series of questions posed by the prosecutor on cross-examination of defendant as to his involvement with selling cocaine did not require the trial court to grant a mistrial on its own motion, where the prosecutor stayed within the latitude allowed for cross-examination and the trial was conducted in conformity with the law. Temple v. State, 498 So. 2d 379, 1986 Miss. LEXIS 2834 (Miss. 1986).

In an action to enjoin enforcement of the statute, the court, in lieu of injunctive relief, declared the rights of complainants to the use of public facilities. Clark v. Thompson, 206 F. Supp. 539, 1962 U.S. Dist. LEXIS 3769 (S.D. Miss. 1962), aff'd, 313 F.2d 637, 1963 U.S. App. LEXIS 5965 (5th Cir. Miss. 1963).

In an action for an injunction restraining defendants from enforcing or executing subsection (1) of Code 1942, § 2046.5, subsection (7) of this section [Code 1942, § 2056] and Code 1942, § 4065.3 against the plaintiffs by preventing them from using public recreational facilities on an integrated and equal basis solely on the ground of race and color, the federal three-judge statutory court would be dissolved and the case left for decision of a single federal district judge, where it appeared that what plaintiffs actually sought was to attack a pattern or practice rather than the constitutional validity of a statute or actions under it. Clark v. Thompson, 204 F. Supp. 30, 1962 U.S. Dist. LEXIS 3102 (S.D. Miss. 1962).

18. —Jury instructions.

Because the record provided evidence corroborating an accomplice’s testimony, the trial court was not required to instruct the jury to regard the accomplice’s testimony with great caution and suspicion. James v. State, 146 So.3d 985, 2014 Miss. App. LEXIS 66 (Miss. Ct. App.), cert. denied, 146 So.3d 981, 2014 Miss. LEXIS 463 (Miss. 2014).

Trial court properly refused a requested instruction because, reading all the given instructions together, the jury was fairly, fully, and accurately instructed regarding its duty to consider and weigh the credibility of witness testimony. James v. State, 146 So.3d 985, 2014 Miss. App. LEXIS 66 (Miss. Ct. App.), cert. denied, 146 So.3d 981, 2014 Miss. LEXIS 463 (Miss. 2014).

Trial court did not err by refusing a proposed theory-of-the-case instruction because the instruction was redundant. James v. State, 146 So.3d 985, 2014 Miss. App. LEXIS 66 (Miss. Ct. App.), cert. denied, 146 So.3d 981, 2014 Miss. LEXIS 463 (Miss. 2014).

In a prosecution for conspiracy to commit grand larceny involving the stealing of a portable generator, a requested instruction, which stated that before the defendant could be found guilty of conspiracy, the evidence had to show that the defendants “did willfully, unlawfully and feloniously conspire, confederate and agree together and with each other to unlawfully commit grand larceny by stealing a generator . . . ” was properly denied since it misstated the law in that it stated that the defendant must have agreed to steal the generator by a more formal agreement than is required. Rose v. State, 556 So. 2d 728, 1990 Miss. LEXIS 37 (Miss. 1990).

On trial of felony charge of conspiring to distribute more than one kilogram of marijuana, giving of instructions which would allow the jury to find defendants guilty based on acts in furtherance of the conspiracy without requiring a separate finding that they knowingly became a part of the agreement to commit the crime, while erroneous, did not require reversal, where defendants failed to object, and the deficiency of the instructions was cured by other instructions given. Gray v. State, 487 So. 2d 1304, 1986 Miss. LEXIS 2441 (Miss. 1986).

Giving of conspiracy instruction which allows jury to convict alleged conspirator upon finding that conspirator has conspired only with person legally precluded from coconspirator status, rather than with coconspirator, is reversible error. James v. State, 481 So. 2d 805, 1985 Miss. LEXIS 2358 (Miss. 1985).

Where evidence also shows an assault and battery, an instruction permitting a conviction thereon is error. King v. State, 123 Miss. 532, 86 So. 339, 1920 Miss. LEXIS 54 (Miss. 1920).

19. Penalties.

Circuit court erred when it found that a truck had been forfeited, when defendant and a codefendant had cocaine in their possession while they were traveling in the truck, because the forfeiture of the truck was an excessive and grossly disproportionate fine for the non-adjudicated offense of conspiracy to possess cocaine, as neither the instrumentality test, nor the proportionality test favored forfeiture. One (1) 2011 Chevrolet Silverado 1500 v. Panola County Narcotics Task Force, 169 So.3d 967, 2014 Miss. App. LEXIS 682 (Miss. Ct. App. 2014), cert. denied, 168 So.3d 962, 2015 Miss. LEXIS 370 (Miss. 2015).

In a case where defendant father and defendant adopted son were convicted of conspiracy to commit sexual battery, Miss. Code Ann. §§97-1-1 and97-3-95(1)(d), sexual battery, Miss. Code Ann. §97-3-95(1)(d), and contributing to the delinquency of a minor, Miss. Code Ann. §97-5-39(1), defendant father was sentenced to five years and a $ 5,000 fine on the conspiracy count; 30 years and a $ 10,000 fine on the sexual battery count; and one year and a $ 1,000 fine on the contributing to the delinquency of a minor charge and the trial court ordered that the prison time be served consecutively; however, nothing in the record or presented by defendant father warranted reversal or reduction of his sentence because his sentence was within the statutory limits and it was a just punishment for the despicable crimes for which he was found guilty by a fair and impartial jury. King v. State, 857 So. 2d 702, 2003 Miss. LEXIS 450 (Miss. 2003).

Sentences of 20 years for conspiracy to sell controlled substance and 30 years on each of two counts of sale of controlled substance, all to run consecutively, did not constitute cruel and unusual punishment, given defendant’s extensive juvenile record that began when he was ten years old. Herring v. State, 691 So. 2d 948, 1997 Miss. LEXIS 37 (Miss. 1997).

No minimum sentence exists for crime of conspiracy. Simpson v. State, 678 So. 2d 712, 1996 Miss. LEXIS 413 (Miss. 1996).

Defendant could not be sentenced to greater penalty than 5 years and/or $5,000 fine as allowed under general conspiracy statutory provision, and could not be sentenced for conspiracy as first-offender to sell greater than one ounce but less than one kilogram of marijuana, despite defendant’s involvement in sale of more than one ounce but less than one kilogram of marijuana, where indictment as to charged conspiracy was silent as to quantity of marijuana involved. Clubb v. State, 672 So. 2d 1201, 1996 Miss. LEXIS 143 (Miss. 1996).

Section41-29-139(a)(1) is merely the provision that defines the prohibitive acts and §41-29-139(b)(1) is the sentencing provision for subsection (a); the penalty section for a violation of section (a)(1) is in section (b)(1). The discrepancy in the code section is due to the fact that the conspiracy statute section dealing with enhanced sentencing for controlled substances–this section–directly refers to the sentencing provision under § 41-29-139. Thus, a sentence of 20 years imprisonment with 5 years suspended and a fine of $10,658.50 did not exceed that provided for in this section where the defendant was convicted of conspiracy to possess cocaine with intent to sell, barter, transfer or distribute, since this section provides for a fine not to exceed $500,000 and/or imprisonment for not more than 20 years where the crime conspired to be committed is a violation of §41-29-139(b)(1). Lane v. State, 562 So. 2d 1235, 1990 Miss. LEXIS 234 (Miss. 1990).

Trial court’s imposition of 10 year prison sentence and a $10,000 fine on a defendant convicted of conspiracy to sell cocaine, who contended that he had had an opportunity to plead guilty to the charge for which he was convicted, and in return receive a recommendation for a 3 year sentence with no fine, was not a proscribed enhancement of sentence because defendant exercised his right to a jury trial where the record reflected that the trial judge, who was unaware of the guilty plea negotiation, remained circumspect and unbiased. Temple v. State, 498 So. 2d 379, 1986 Miss. LEXIS 2834 (Miss. 1986).

20. Sentencing.

In a case where defendant was convicted of several crimes relating to the arson and burglary of a residence, his double jeopardy rights were not violated due to the fact that some of the elements of the crimes overlapped; each of the crimes involved required proof of an additional fact that the other did not. McCollins v. State, 952 So. 2d 305, 2007 Miss. App. LEXIS 167 (Miss. Ct. App. 2007).

Trial court did not err by imposing sentences of five years for conspiracy, 25 years for burglary of a dwelling, five years for grand larceny, and 20 years for first degree arson, as these were all the maximum sentences allowed for these crimes. McCollins v. State, 952 So. 2d 305, 2007 Miss. App. LEXIS 167 (Miss. Ct. App. 2007).

Appellate court affirmed the denial of an inmate’s motion for post-conviction relief on the grounds that her sentences were excessive as the sentences imposed for her conviction for Miss. Code Ann. §97-1-1 were within the statutory range. Lee v. State, 918 So. 2d 87, 2006 Miss. App. LEXIS 23 (Miss. Ct. App. 2006).

Where defendant was convicted for conspiracy to commit grand larceny based on evidence that he and a conspirator attempted to remove tires from a vehicle in a car lot at two o’clock in the morning, the trial court properly sentenced defendant to five years, with three suspended. His sentence was clearly within statutory limits and not disproportionate to the crimes for which he was convicted. Brownlee v. State, 912 So. 2d 1000, 2005 Miss. App. LEXIS 187 (Miss. Ct. App. 2005).

Where appellant pled guilty to the armed robbery of a fast food restaurant, and his accomplice pled guilty to conspiracy to commit armed robbery for driving the “getaway car;” the trial court did not err in sentencing appellant to seven years while his accomplice only received an effective sentence of one year. The men performed different tasks in the crime. Edmond v. State, 906 So. 2d 798, 2004 Miss. App. LEXIS 1135 (Miss. Ct. App. 2004).

Maximum sentence allowed by law for conspiracy to manufacture methamphetamine is 20 years in prison and a fine of $ 500,000. Hence, defendant’s sentence of 20 years in prison, with 12 years suspended and five years of post-release supervision, upon his plea of guilty to conspiracy to manufacture methamphetamine, did not exceed the statutory minimum punishment. Sweat v. State, 910 So. 2d 12, 2004 Miss. App. LEXIS 1110 (Miss. Ct. App. 2004), aff'd in part and rev'd in part, 912 So. 2d 458, 2005 Miss. LEXIS 661 (Miss. 2005).

Defendant’s sentence after pleading guilty to one count of sale of a controlled substance and one count of conspiracy was proper where his sentence was only one-fifth of the maximum permitted, Miss. Code Ann. §§41-29-139(b)(1),97-1-1(h); further, he failed to object to the sentence imposed upon him by the trial court and was attempting to attack his conspiracy and sale convictions in one post-conviction filing that was not permitted, Miss. Code Ann. §99-39-9(2), therefore, his claim was not properly presented and was procedurally barred. McMinn v. State, 867 So. 2d 268, 2004 Miss. App. LEXIS 187 (Miss. Ct. App. 2004).

RESEARCH REFERENCES

ALR.

Criminal conspiracy between spouses. 46 A.L.R.2d 1275.

Conviction or acquittal of attempt to commit particular crime as bar to prosecution for conspiracy to commit same crime, or vice versa. 53 A.L.R.2d 622.

When does statute of limitations begin to run against civil action or criminal prosecution for conspiracy. 62 A.L.R.2d 1369.

Criminal conspiracies as to gambling. 91 A.L.R.2d 1148.

Admissibility of statements of coconspirators made after termination of conspiracy and outside accused’s presence. 4 A.L.R.3d 671.

Jurisdiction to prosecute conspirator who was not in state at time of substantive criminal act, for offense committed pursuant to conspiracy. 5 A.L.R.3d 887.

Impossibility of consummation of substantive crime as defense in criminal prosecution for conspiracy or attempt to commit crime. 37 A.L.R.3d 375.

Necessity and sufficiency of independent evidence of conspiracy to allow admission of extrajudicial statements of coconspirators. 46 A.L.R.3d 1148.

Criminal conspiracy between spouses. 74 A.L.R.3d 838.

When statute of limitations begins to run on charge of obstructing justice or of conspiring to do so. 77 A.L.R.3d 725.

Antagonistic defenses as ground for separate trials of codefendants in criminal case. 82 A.L.R.3d 245.

Right of defendants in prosecution for criminal conspiracy to separate trials. 82 A.L.R.3d 366.

Prosecution or conviction of one conspirator as affected by disposition of case against coconspirators. 19 A.L.R.4th 192.

Criminal liability under state laws in connection with application for, or receipt of, public welfare payments. 22 A.L.R.4th 534.

Adverse presumption or inference based on failure to produce or examine codefendant or accomplice who is not on trial–modern criminal cases. 76 A.L.R.4th 812.

Criminality of act of directing to, or recommending, source from which illegal drugs may be purchased. 34 A.L.R.5th 125.

Am. Jur.

16 Am. Jur. 2d, Conspiracy §§ 1, 2, 3, 5.

7 Am. Jur. Pl & Pr Forms (Rev), Conspiracy, Forms 1 et seq. (general); Forms 11 et seq. (particular conspiracies).

8 Am. Jur. Proof of Facts 2d, Withdrawal from or Abandonment of Criminal Enterprise, §§ 6 et seq. (proof of defendant’s withdrawal from and abandonment of criminal enterprise).

49 Am. Jur. Proof of Facts 2d 473, Civil Conspiracy to Deny First-Party Insurance Benefits.

50 Am. Jur. Proof of Facts 2d 455, Tortious Interference with Employment Relationship.

20 Am. Jur. Trials, handling the defense in a conspiracy prosecution, §§ 1 et seq.

CJS.

15A C.J.S., Conspiracy §§ 94-96, 98-102, 104.

Practice References.

Paul Marcus, Prosecution and Defense of Criminal Conspiracy Cases (Matthew Bender).

Ronald L. Schoenberg, Criminal Law Deskbook (Matthew Bender).

§ 97-1-3. Accessories before the fact.

Every person who shall be an accessory to any felony, before the fact, shall be deemed and considered a principal, and shall be indicted and punished as such; and this whether the principal have been previously convicted or not.

HISTORY: Codes, Hutchinson’s 1848, ch. 64, art. 12, Title 8 (6); 1857, ch. 64, art. 2; 1871, § 2484; 1880, § 2698; 1892, § 950; 1906, § 1026; Hemingway’s 1917, § 751; 1930, § 769; 1942, § 1995.

Cross References —

Requirements of certain contracts being in writing, see §15-3-1.

Person acting as agent in effecting sale of liquor, see §97-31-29.

JUDICIAL DECISIONS

1. In general.

2. Misdemeanors.

3. Participation.

4. Defenses.

5. Evidence.

6. Instructions.

7. Conviction.

1. In general.

Whether defendant was classified as an accessory before the fact or an aider and abettor to the gunman was irrelevant where his role was tantamount to that of the principal; therefore, there was no error in the sentence that was given based on his guilty plea for murder. Walton v. State, 752 So. 2d 452, 1999 Miss. App. LEXIS 692 (Miss. Ct. App. 1999).

Defendant’s role in murder was the same as role of principal, whether he was accessory before the fact or accomplice, aiding and abetting principal. Pleasant v. State, 701 So. 2d 799, 1997 Miss. LEXIS 534 (Miss. 1997).

Adequate, credible, and substantial evidence supported defendant’s capital murder conviction; there was substantial, credible evidence defendants intended to rob convenience store, even if jury found there was not enough evidence to prove underlying crime of armed robbery, jury was instructed on lesser-included offense of simple murder, and defendant could be convicted as a principal whether characterized as accessory before the fact or accomplice. Pleasant v. State, 701 So. 2d 799, 1997 Miss. LEXIS 534 (Miss. 1997).

Accessory to any felony before the fact is a principal and may be convicted as principal in indictment charging him or her as principal. Hoops v. State, 681 So. 2d 521, 1996 Miss. LEXIS 433 (Miss. 1996).

The primary distinction between an accessory-before-the-fact and an aider and abettor is the actual or constructive presence of the party. If a person was actually or constructively present at the offense, due to his or her participation he or she is an aider and abettor. If he or she was not present, he or she is an accessory-before-the-fact. Sayles v. State, 552 So. 2d 1383, 1989 Miss. LEXIS 472 (Miss. 1989).

One of the critical distinctions between being an accessory before and after the fact is whether the felony is complete at the time assistance is rendered. One is an accessory before the fact when assistance is rendered the principal before the felony is completed in order to help the principal in the commission or completion of the offense; this would include entering into a pre-arranged plan for escape of the principals. An accessory before the fact necessarily participates in the design of the felony while an accessory after the fact is a person assisting one, who has completed the commission of a felony, to avoid being apprehended, arrested, convicted, etc. Gangl v. State, 539 So. 2d 132, 1989 Miss. LEXIS 93 (Miss. 1989).

The requirements of this section, were not incorporated into former §23-9-703 but, instead, former §23-9-703 created a separate offense of vote fraud. Van Buren v. State, 498 So. 2d 1224, 1986 Miss. LEXIS 2858 (Miss. 1986).

A defendant who was not indicted for aiding and abetting the crime of vote fraud but, rather, was indicted for vote fraud for aiding, abetting or assisting or causing a named voter to violate the provisions of former §23-9-605(2), was indicted as a principal. Van Buren v. State, 498 So. 2d 1224, 1986 Miss. LEXIS 2858 (Miss. 1986).

Status as either accessory before fact or principal to crime is distinction without difference. State v. Peoples, 481 So. 2d 1069, 1986 Miss. LEXIS 2337 (Miss. 1986).

In a prosecution for sale of marijuana, the trial court properly permitted the state to try the case as a “conspiracy” without stating that word in the indictment, where it was clear from the indictment that all three indictees were indicted as principals in the offense, within the meaning of this section, and where it was clear from the record that there was sufficient evidence to convict all three co-indictees as principals in the crime. Sanders v. State, 439 So. 2d 1271, 1983 Miss. LEXIS 2979 (Miss. 1983).

In a prosecution for false pretenses, the trial court properly refused to quash the indictment, despite defendant’s contention that the indictment charged only conspiracy, a crime not excepted from the two year statute of limitations, and that the prosecution was thus barred; conspiracy is a complete offense in itself and does not merge with the underlying crime, and the fact that a conspiracy is committed along with the crime does not change the nature of the offense nor lessen exposure to punishment. Furthermore, the prosecution was not time barred even though defendant was charged with being an accessory only, which is a separate crime not excepted from the statute, since an accessory before the fact to an excepted felony is treated as a principal. Harrigill v. State, 381 So. 2d 619, 1980 Miss. LEXIS 1887 (Miss.), cert. denied, 446 U.S. 939, 100 S. Ct. 2159, 64 L. Ed. 2d 792, 1980 U.S. LEXIS 1596 (U.S. 1980).

A man who agreed to purchase goods which others intended to steal, who supplied a tractor to be used during the theft, who was not present during the commission of the crime, but who received stolen goods, could be convicted both as an accessory before the fact and as a receiver of stolen property. Knowles v. State, 341 So. 2d 913, 1977 Miss. LEXIS 2283 (Miss. 1977).

Where three teenagers were actively engaged in committing the felony of stealing guns, and where their sole purpose at the time of the accidental shooting of one of them was to finish the job by hiding the guns, the three were jointly and collectively engaged in the commission of a criminal act and all had to bear equal responsibility for what happened, so that the injured one could not recover in damages from the other two, each being a principal to the act. Parkinson v. Williamson, 262 So. 2d 777, 1972 Miss. LEXIS 1324 (Miss. 1972).

To convict under this section [Code 1942, § 1995] it is necessary to prove beyond reasonable doubt that the alleged crime has actually been committed and that accused aided and abetted its commission. Smith v. State, 237 Miss. 498, 115 So. 2d 318, 1959 Miss. LEXIS 496 (Miss. 1959).

In prosecution for grand larceny of articles which accused alleged to have been given them by wife of victim so that they could assist her in eloping, whether it was crime for wife to steal from husband held immaterial, since accused if they assisted in theft were principals and not accessories, regardless of whether other person was responsible. Tatum v. State, 171 Miss. 336, 157 So. 892, 1934 Miss. LEXIS 263 (Miss. 1934).

What constitutes “aiding and abetting” in commission of crime stated. Crawford v. State, 133 Miss. 147, 97 So. 534, 1923 Miss. LEXIS 124 (Miss. 1923).

Party actually committing felony must be proved guilty before evidence of guilt of accessories admissible. Osborne v. State, 99 Miss. 410, 55 So. 52, 1910 Miss. LEXIS 33 (Miss. 1910).

One aiding and abetting offense is indictable as principal. Kittrell v. State, 89 Miss. 666, 42 So. 609, 1906 Miss. LEXIS 66 (Miss. 1906).

One who aids, assists and encourages a murder is a principal and not an accessory, and his guilt in no wise depends upon the guilt or innocence, the conviction or acquittal of any other alleged participant in the crime. Dean v. State, 85 Miss. 40, 37 So. 501, 1904 Miss. LEXIS 133 (Miss. 1904).

2. Misdemeanors.

In misdemeanors, all who aid, incite, participate or abet the commission of such crime, as well as those who perpetrate the crime are guilty as principals and it is not necessary that a person convicted of such misdemeanor be present at the commission of the crime. State v. Labella, 232 So. 2d 354, 1970 Miss. LEXIS 1620 (Miss. 1970).

There are no accessories in misdemeanors, but all who aid in and incite their commission are principals. Johns v. State, 78 Miss. 663, 29 So. 401, 1900 Miss. LEXIS 153 (Miss. 1900); State v. Treweilder, 103 Miss. 859, 60 So. 1015, 1912 Miss. LEXIS 241 (Miss. 1912).

3. Participation.

Defendant’s actions in referring the deceased for silicone injections for a buttocks enhancement were inconsistent with putting defendant on the path of conscious and wanton or reckless disregard of the possibilities of fatal consequences to others as the result of the willful creation of an unreasonable risk, as she did not jointly engage in administering the silicone injections, and thus, defendant was not an accessory before the fact. Stewart v. State, 211 So.3d 724, 2016 Miss. App. LEXIS 344 (Miss. Ct. App. 2016), cert. denied, 209 So.3d 431, 2017 Miss. LEXIS 48 (Miss. 2017).

If the jury believed all of the testimony offered by the first witness, including defendant’s confession to which she testified, then there was sufficient evidence to support a finding that defendant was the principal in the robbery and murder of the victim; if the jury chose to disregard the confession and believe only the testimony of the second witness regarding the bloody clothes and the testimony of the first witness regarding what she overheard about the planning of the crime, then the evidence was sufficient to support an accomplice jury instruction and defendant’s conviction for capital murder as a principal under Miss. Code Ann. §97-1-3. Johnson v. State, 956 So. 2d 358, 2007 Miss. App. LEXIS 333 (Miss. Ct. App. 2007).

Where the victim testified that defendant directed the victim’s attackers away from the victim’s brother-in-law and towards the victim and that after the attack the victim heard, one of the attackers ask defendant for payment, there was sufficient evidence to find that defendant was an accessory before the fact under Miss. Code Ann. §97-1-3. Brown v. State, 864 So. 2d 1009, 2004 Miss. App. LEXIS 55 (Miss. Ct. App. 2004).

Defendant was indicted as a principal on a charge of capital murder where defendant provided the gun and discussed robbing the taxi driver before the fact, and as an indicted principal, defendant faced the same possible punishment as the person who did the actual killing; had defendant gone to trial on the capital murder charge, defendant would have faced the potential imposition of a death penalty. Bolton v. State, 831 So. 2d 1184, 2002 Miss. App. LEXIS 693 (Miss. Ct. App. 2002).

Defendant who willingly participated in a bank robbery by driving the robbers to the bank, waiting outside while the robbery was committed, and serving as the get-away driver was properly sentenced for armed robbery pursuant to defendant’s guilty plea and did not have to be sentenced as an accessory. McCuiston v. State, 791 So. 2d 315, 2001 Miss. App. LEXIS 291 (Miss. Ct. App. 2001).

One who is an accessory before the fact or one who aids and abets necessarily enters into an agreement that an unlawful act will be done; he participates in the design of the crime. Malone v. State, 486 So. 2d 360, 1986 Miss. LEXIS 2419 (Miss. 1986).

Defendant was properly convicted of selling more than one kilogram of marijuana to an undercover agent, even though he did not personally deliver the marijuana to the agent, where the proof showed his participation as an accessory before the fact, thus rendering him subject to indictment and punishment as a principal. McGowan v. State, 375 So. 2d 987, 1979 Miss. LEXIS 2415 (Miss. 1979).

Appellant was properly convicted of rape where the evidence showed that while he did not himself commit the sex act, he was armed with a gun and was effectively instrumental in forcing the prosecutrix to submit to the advances of another and thereby aided, assisted and abetted the commission of the rape. Pilcher v. State, 296 So. 2d 682, 1974 Miss. LEXIS 1527 (Miss. 1974), cert. denied, 420 U.S. 938, 95 S. Ct. 1149, 43 L. Ed. 2d 415, 1975 U.S. LEXIS 702 (U.S. 1975).

Where the evidence proved a combination or conspiracy entered into by the defendant and others to commit armed robbery, and the victim was thereafter shot to death by a codefendant at a time when all conspirators were present and each was doing his or her assigned part in the conspiracy to rob, the defendant became an accessory to armed robbery before the fact, and under the specific provisions of Code 1942, § 1995 was deemed and considered a principal so that every essential element of the crime of murder listed in Code 1942, § 2215 was proved by the state against the defendant. Alexander v. State, 250 So. 2d 629, 1971 Miss. LEXIS 1185 (Miss. 1971).

A defendant who was shown by testimony to have induced another to forge the name of the payee on a check, was not entitled to acquittal of the forgery charged in the indictment on the theory that the indictment did not inform the defendant that he was being tried as an accessory before the fact of forgery, since, as an accessory before the fact, the defendant was considered a principal under Code 1942, § 1995. Bell v. State, 255 So. 2d 325, 1971 Miss. LEXIS 1288 (Miss. 1971).

One who instigates a theft of specific property on his behalf, though not present, is liable as a principal. James v. State, 248 Miss. 777, 160 So. 2d 695, 1964 Miss. LEXIS 303 (Miss. 1964).

One who was present and initiated the pointing of a gun at another was a principal. Hathorn v. State, 246 Miss. 135, 149 So. 2d 845, 1963 Miss. LEXIS 429 (Miss. 1963).

A father pursued by a patrolman because of driving without lights is properly convicted of negligent manslaughter where he instructed his 16-year-old son to drive as fast as possible and not stop, and the car struck another. Griffin v. State, 242 Miss. 376, 135 So. 2d 198, 1961 Miss. LEXIS 572 (Miss. 1961).

One may be convicted as accessory to a burglary at which he was not present, if he was party to a design to commit it. Kennard v. State, 242 Miss. 691, 128 So. 2d 572, 1961 Miss. LEXIS 596 (Miss.), cert. denied, 368 U.S. 869, 82 S. Ct. 111, 7 L. Ed. 2d 66, 1961 U.S. LEXIS 791 (U.S. 1961).

Aiding and abetting involves some participation in the criminal act and this may be evidenced by some word, act or deed. West v. State, 233 Miss. 730, 103 So. 2d 437, 1958 Miss. LEXIS 434 (Miss. 1958).

Where the accused was present at the taking and participated in the asportation and where he was in the company of his co-indictees practically all the night of the larceny, he was an accessory. Hollis v. State, 221 Miss. 677, 74 So. 2d 747, 1954 Miss. LEXIS 577 (Miss. 1954).

Where two or more persons act in concert to accomplish the common purpose of robbery, the act of one in taking the property is the act of all. Noble v. State, 221 Miss. 339, 72 So. 2d 687, 1954 Miss. LEXIS 543 (Miss. 1954).

In order to be guilty of robbery, one need not necessarily be present at the commission of the crime, and persons absent from the scene of the robbery may be liable to prosecution therefore if they were particeps criminis before or after the commission of robbery. Noble v. State, 221 Miss. 339, 72 So. 2d 687, 1954 Miss. LEXIS 543 (Miss. 1954).

Where the indictment charged burglary but the evidence, chiefly circumstantial, indicated that the defendant was at least an accessory, the defendant was liable as principal. Wages v. State, 210 Miss. 187, 49 So. 2d 246, 1950 Miss. LEXIS 335 (Miss. 1950).

One who drives his car to seed house door, after midnight, and assists in loading fertilizer in car after two other persons have unlocked door, entered seed house and brought fertilizer to door, is actually present, aiding, abetting, and participating in theft of fertilizer and is principally guilty of larceny and not of receiving stolen property. Thomas v. State, 205 Miss. 653, 39 So. 2d 272, 1949 Miss. LEXIS 456 (Miss. 1949).

A taxicab driver who, without knowledge of the larcenous intent of his passengers, drove them to the scene of their burglary and drove them away after being advised of their true completed mission was not an accessory before the fact. Mullen v. State, 202 Miss. 795, 32 So. 2d 874, 1947 Miss. LEXIS 341 (Miss. 1947).

Under statutes, assistance rendered principal before felony is completed to avoid arrest therefor makes person rendering assistance an “accessory before and not after the fact.” Crosby v. State, 179 Miss. 149, 175 So. 180, 1937 Miss. LEXIS 27 (Miss. 1937).

Accessory before fact to robbery is indictable and punishable as principal in county wherein robbery was consummated, though not in such county at time. Watson v. State, 166 Miss. 194, 146 So. 122, 1933 Miss. LEXIS 335 (Miss. 1933).

Each person present consenting to and doing any act leading to commission of crime is principal. Moore v. State, 91 Miss. 250, 44 So. 817, 1907 Miss. LEXIS 148 (Miss. 1907).

4. Defenses.

A defendant was not immune from prosecution under §97-3-99 for a sexual battery on his wife committed by another person, even though he may have been immune from prosecution had he alone committed the battery; §97-3-99 did not give the defendant immunity since the sexual battery was committed by someone else and the defendant had aided and abetted its commission. Davis v. State, 611 So. 2d 906, 1992 Miss. LEXIS 802 (Miss. 1992).

5. Evidence.

Evidence was sufficient to sustain defendant’s conviction for aggravated assault because rational jurors could find that defendant acted in concert with his father to commit the assault; though defendant never specifically admitted that he encouraged or asked the father to shoot the victim, the evidence permitted a reasonable inference that he encouraged the father to do so, and the evidence indicated that defendant personally continued the assault and ultimately stabbed the victim to death. Pointer v. State, 202 So.3d 210, 2016 Miss. App. LEXIS 567 (Miss. Ct. App. 2016).

Evidence was sufficient to establish defendant’s guilt of conspiracy because the evidence showed that defendant – knowing of the plan to rob the bank – drove the co-defendant’s to the bank, waited for them outside, and then served as the getaway driver. Glenn v. State, 996 So. 2d 148, 2008 Miss. App. LEXIS 584 (Miss. Ct. App. 2008).

Defendant’s claim that the State had failed to prove that he had acted as an aider and abetter was without merit where the law was clear that any person who was present at the commission of a criminal offense and aided, counseled, or encouraged another in the commission of that offense was an aider and a better and was equally guilty with the principal offender; the State presented evidence that defendant was present during the commission of the crime and actively assisted codefendant in the commission of the crime. Schankin v. State, 910 So. 2d 1113, 2005 Miss. App. LEXIS 169 (Miss. Ct. App.), cert. denied, 920 So. 2d 1008, 2005 Miss. LEXIS 566 (Miss. 2005).

A murder defendant’s actions met the requirements for aiding and abetting, and therefore her conviction for murder would be affirmed, where she was present when her boyfriend shot the victim, she arranged for the victim to be at the location of the killing, she testified that she suspected trouble when she saw her boyfriend arrive with a gun, she admitted that she did nothing while her boyfriend stood talking with the victim for approximately 30 minutes, and there was testimony that she knew of the plan to kill the victim. Swinford v. State, 653 So. 2d 912, 1995 Miss. LEXIS 90 (Miss. 1995).

The evidence was sufficient to support a conviction of accessory before the fact of sale of cocaine where the defendant approached a vehicle that an undercover agent and an informant were driving, and told them that they were late and the cocaine had been “sent back,” but to wait and someone would “take care” of them. It was not necessary for the prosecution to prove that the defendant exercised dominion and control over the cocaine or that he personally profited from its sale. Turner v. State, 573 So. 2d 1340, 1990 Miss. LEXIS 832 (Miss. 1990).

The evidence was insufficient to support a conviction for armed robbery as an accessory before the fact where none of the witnesses who testified at trial saw the defendant prior to or during the armed robbery, the first time anyone saw the defendant was approximately 20 minutes after the commission of the armed robbery, and there was no evidence showing that the defendant was aware of his companions’ activities prior to the actual commission of the armed robbery and no reasonable inference from other evidence to show any such knowledge by the defendant. Gangl v. State, 612 So. 2d 333, 1992 Miss. LEXIS 562 (Miss. 1992).

The evidence was sufficient to support a conviction of the defendant for aiding and abetting his brother in the sale of cocaine, despite the defendant’s defense that he had no idea what was happening though he was present during the sale, where the defendant drove his brother to meet a confidential informant and 2 undercover narcotics agents for the purpose of making the sale of cocaine, the defendant then drove his brother to another location where he remained with the informant and the two agents while his brother went to get the cocaine, and the defendant was present when his brother returned and completed the sale. Gowdy v. State, 592 So. 2d 29, 1991 Miss. LEXIS 841 (Miss. 1991).

Jury verdict finding defendant guilty of armed robbery as an accessory before the fact was amply supported by testimony of state’s principal witness, the person who actually assaulted and wrestled jewels from the victim, that defendant masterminded the crime, which testimony was corroborated by another witness, and by testimony of the defendant placing himself with the co-defendants before the fact and with the stolen jewels on the evening of the crime. Malone v. State, 486 So. 2d 360, 1986 Miss. LEXIS 2419 (Miss. 1986).

Evidence that defendant was aware of possibility that future sale of narcotics would be made is insufficient to render defendant criminally accountable as principal in sale of substance. Clemons v. State, 482 So. 2d 1102, 1985 Miss. LEXIS 2356 (Miss. 1985).

Evidence in the record that established that the defendant participated in the advance planning of the robbery of the victim, furnished codefendant the knife used in the murder, and that, after the victim had been killed, he took charge of dividing the “take” and assisted in disposing of the body, was sufficient to support a conviction under this section. Fairchild v. State, 459 So. 2d 793, 1984 Miss. LEXIS 1983 (Miss. 1984).

Although defendant may very well have been an accessory after the fact under §97-1-5, the state never made a jury issue that he was engaged in a conspiracy under §97-1-1, where he had been trying to extricate his brother and a very good friend when he violated the law by possessing and transporting marijuana. Kennedy v. State, 454 So. 2d 495, 1984 Miss. LEXIS 2091 (Miss. 1984).

Evidence that the defendant in a prosecution for robbery of a jewelry store had accompanied the principal when he robbed the store and that, upon the return of an employee to the store, the defendant had stated “there she is”, established the defendant’s participation as a full-fledged accessory in the crime despite her contention that she had not exhibited a pistol, made any threats, or participated in tying up the employees. Sanders v. State, 403 So. 2d 1288, 1981 Miss. LEXIS 2191 (Miss. 1981).

Within the purview of this section defendant was at least an accessory before the fact to murder and as such was subject to indictment and punishment as a principal where defendant had given two confessions, revealing that he had been drinking alcoholic beverages at the time of the murder, admitting going in the murder victim’s house, and giving conflicting statements as to whether anyone else had accompanied him and as to whether or not he had shot the victims. Lee v. State, 338 So. 2d 395, 1976 Miss. LEXIS 1623 (Miss. 1976).

In a prosecution for murder growing out of a shootout between police officers and the defendant and others, evidence that the defendant had an opportunity to give himself up but chose not to do so and that he fired upon the officers was sufficient to bring defendant within the purview of this section [Code 1972, §97-1-3]. James v. State, 307 So. 2d 549, 1975 Miss. LEXIS 1823 (Miss.), cert. denied, 423 U.S. 848, 96 S. Ct. 88, 46 L. Ed. 2d 70, 1975 U.S. LEXIS 2560 (U.S. 1975).

In a prosecution for setting fire to a field, where the defendant was tried as a principal on a theory that he was an accessory before the fact, but the only evidence of his participation in the crime consisted in the fact that he was observed sitting with another in an automobile stopped adjacent to a field which two other men were in the act of firing, and when someone gave an order to put out the fire, the two young men returned to defendant’s car and he drove away, such evidence, while sufficient for submission of the case to the jury, left the defendant’s guilt in such serious doubt that he would be granted a new trial. Russell v. Ralston Purina Co., 234 So. 2d 50, 1970 Miss. LEXIS 1398 (Miss. 1970).

Where it was shown that the defendant was an accessory before the fact, and as such, a principal, evidence as to the act of his companion at the time the victim was shot was admissible against the defendant in a prosecution for intentionally pointing and aiming a pistol and wounding the victim. Blackwell v. State, 231 So. 2d 790, 1970 Miss. LEXIS 1608 (Miss.), cert. denied, 400 U.S. 848, 91 S. Ct. 43, 27 L. Ed. 2d 86, 1970 U.S. LEXIS 1188 (U.S. 1970).

Where an accused admitted that he drove three companions in his automobile to a service station, and then drove the car away after the companions broke into the station and took several cartons of cigarettes and other items, the evidence was sufficient to support his conviction of burglary, since any person acting with others in the commission of a crime and aiding and abetting therein is responsible as a principal for the offense. Bass v. State, 231 So. 2d 495, 1970 Miss. LEXIS 1594 (Miss. 1970).

6. Instructions.

Defendant was not erroneously convicted of aggravated assault because the evidence supported the giving by the trial judge of an accomplice-liability jury instruction, given the conflicting testimony as to whether defendant or another person with defendant shot the victim, and the instruction did not constructively amend the indictment. Moreover, the trial judge did abuse the judge’s discretion in additionally giving a cautionary instruction as to accomplice testimony. Jones v. State, 238 So.3d 1235, 2016 Miss. App. LEXIS 408 (Miss. Ct. App. 2016), cert. denied, 237 So.3d 1269, 2018 Miss. LEXIS 148 (Miss. 2018).

At defendant’s trial for capital murder during the commission of a robbery, defendant was not entitled to a lesser-offense instruction of accessory-after-the-fact; the proposed instruction lacked an evidentiary basis. Defendant said that he became uncomfortable about the incident only later that evening, but remained unaware that any felony had been committed; therefore, he could not be an accessory under Miss. Code Ann. §97-1-3. Dampier v. State, 973 So. 2d 221, 2008 Miss. LEXIS 57 (Miss. 2008).

Three defendants’ capital-murder convictions were appropriate because, although a limiting instruction given to the jury regarding confessions by defendants was not sufficient, no prejudice or manifest injustice resulted as to any defendant; each of the defendants gave sufficient evidence of his individual participation in the robbery of a gun store in his separate statements to support a capital-murder charge. Anderson v. State, 5 So.3d 1088, 2007 Miss. App. LEXIS 677 (Miss. Ct. App. 2007), cert. denied, 11 So.3d 1250, 2009 Miss. LEXIS 171 (Miss. 2009), cert. denied, 11 So.3d 1250, 2009 Miss. LEXIS 184 (Miss. 2009), cert. denied, 11 So.3d 1250, 2009 Miss. LEXIS 177 (Miss. 2009).

Language of Miss. Code Ann. §97-1-3, as well as the holdings of the appellate court and the supreme court interpreting and applying that provision, provide sufficient notice to felony defendants that although they may be indicted as a principal, a jury instruction based on accomplice liability is proper provided that the evidence presented supports the instruction given; thus, defendant could not claim prejudice by a jury instruction that properly instructed the jury in accordance with Miss. Code Ann. §97-1-3 simply because the indictment did not contain any allegations regarding accomplice liability. Johnson v. State, 956 So. 2d 358, 2007 Miss. App. LEXIS 333 (Miss. Ct. App. 2007).

Where defendant was charged as a principal in a drug charge and the evidence showed that defendant had acted as an accessory before the fact, a jury instruction for accessory was properly given under Miss. Code Ann. §97-1-3, even though defendant was not charged as an accessory. Pratt v. State, 870 So. 2d 1241, 2004 Miss. App. LEXIS 273 (Miss. Ct. App. 2004).

Jury instruction stating that “each person present at the time of, or consenting to and encouraging, aiding or assisting in any material manner in the commission of a crime, or knowingly and wilfully doing any act which is an ingredient in the crime, is . . . a principal” did not deem mere knowledge or unknowing assistance sufficient to find one guilty; phrase “knowingly and wilfully” contemplated that accused acted with knowledge and deliberation, and assistance in commission of crime had to be major. Hoops v. State, 681 So. 2d 521, 1996 Miss. LEXIS 433 (Miss. 1996).

In a prosecution for accessory before the fact of sale of cocaine, an instruction was sufficient to advise the jury that, before it could find the defendant guilty as an accessory before the fact, it also had to find the fact, where the instruction stated that the jury was required to find that the defendant arranged for the sale of cocaine “and that this occurred in Lauderdale County, Mississippi”; although the quoted language intended to address the point of venue, it sufficiently informed the jury that, before convicting, it was required to find that the sale had occurred in fact. Turner v. State, 573 So. 2d 1340, 1990 Miss. LEXIS 832 (Miss. 1990).

A jury instruction on accessory before the fact was inadequate where it did not instruct the jury to find beyond a reasonable doubt that the crime was actually committed, but only instructed the jury to determine whether the defendant was an accessory before the fact, leaving them to assume that the occurrence of the crime was an established fact. Wilson v. State, 592 So. 2d 993, 1991 Miss. LEXIS 962 (Miss. 1991).

An instruction in a murder prosecution, in which the defendant was tried as an accessory before the fact, stating that “even if the defendant was frightened, coerced, or forced, such is not to be considered by you and is no defense in this case” was erroneous. To be convicted as an accessory, the defendant must possess the mens rea for the commission of the crime, and the precise state of mind of the defendant has great significance in determining the degree of his or her guilt; an accomplice may be convicted of accomplice liability only for those crimes as to which he or she personally has the requisite mental state. The cumulative effect of the instruction was that the defendant was guilty of murder regardless of his mental state; the instruction affirmatively negated the mens rea requirement and should not have been given. Welch v. State, 566 So. 2d 680, 1990 Miss. LEXIS 152 (Miss. 1990).

In a prosecution for being an accessory before the fact of armed robbery, use of terms usually associated with “conspiracy” in one of the state’s instructions was not fatal, especially where any alleged deficiency in the matter of advising the jury of the concepts of aiding and abetting and specific intent was cured by 2 other instructions, as the reviewing court does not examine jury instructions in isolation but, rather, reads all instructions as a whole to determine whether the jury has been correctly instructed. Malone v. State, 486 So. 2d 360, 1986 Miss. LEXIS 2419 (Miss. 1986).

Use of the word “conspiracy” to label certain criminal conduct does not preclude use of the verb “to conspire” and the noun “conspiracy” to connote the sort of participation and involvement in the planning of a crime which is at least in part requisite to being guilty as an accessory before the fact. Malone v. State, 486 So. 2d 360, 1986 Miss. LEXIS 2419 (Miss. 1986).

Where there was testimony showing that three persons including the accused, acted in concert in committing a robbery, each was responsible and accountable for the wrongful actions of the other two, including the use of a knife during the armed robbery by one of the codefendants, and the trial court was justified in refusing an unarmed robbery instruction requested by the defendant, who did not himself use a knife during the incident. Ivey v. State, 232 So. 2d 368, 1970 Miss. LEXIS 1626 (Miss. 1970).

In a prosecution for intentionally pointing and aiming a pistol and wounding the victim, an instruction was proper which permitted the jury to convict the defendant if they should find that he himself fired the shot that wounded the victim, or if the shot was fired by the defendant’s companion at that time, where the defendant was an accessory before the fact and, as such, a principal. Blackwell v. State, 231 So. 2d 790, 1970 Miss. LEXIS 1608 (Miss.), cert. denied, 400 U.S. 848, 91 S. Ct. 43, 27 L. Ed. 2d 86, 1970 U.S. LEXIS 1188 (U.S. 1970).

Where the accused was prosecuted under an indictment charging him, jointly with two others, with murder, accused’s tendered instruction that since he was charged by the indictment with the killing of the deceased with malice aforethought with a certain gun, unless the state had proved the charge beyond all reasonable doubt, the jury should find the defendant not guilty, was properly refused, since it was not supported by the evidence and was contrary to the provisions of this section Code 1942, § 1995. West v. State, 233 Miss. 730, 103 So. 2d 437, 1958 Miss. LEXIS 434 (Miss. 1958).

Where accused was prosecuted under an indictment charging him, jointly with two others, with murder, state’s instruction that if one of the others murdered the deceased, and accused, without being forced or coerced, transported the others in his automobile to where they obtained rifles, knowing full well that the others intended to murder deceased, and aided, assisted and encouraged them therein, the accused was guilty as charged, was not erroneous. West v. State, 233 Miss. 730, 103 So. 2d 437, 1958 Miss. LEXIS 434 (Miss. 1958).

In a prosecution for grand larceny an instruction to the jury that if the woman and the accused conspired together to steal money and then, pursuant to said conspiracy or agreement, the woman stole the money, then the accused was guilty of grand larceny, was proper. Shedd v. State, 228 Miss. 381, 87 So. 2d 898, 1956 Miss. LEXIS 524 (Miss.), cert. denied, 352 U.S. 944, 77 S. Ct. 262, 1 L. Ed. 2d 237, 1956 U.S. LEXIS 60 (U.S. 1956).

In murder prosecution instruction for state that if jury believe from evidence beyond reasonable doubt that defendant did wilfully, unlawfully, feloniously and of his malice aforethought shoot deceased with pistol at time deceased received wounds that caused his death, jury should find defendant guilty even though jury believed that another person was at same time shooting at deceased and jury do not know which person fired shot or shots that actually killed deceased is not objectionable as assuming a conspiracy when evidence shows that defendant was a principal since he was present, aiding and abetting others and evidence is adequate to show defendant guilty individually. Merrell v. State, 39 So. 2d 306 (Miss. 1949); Porter v. State, 39 So. 2d 307 (Miss. 1949).

An instruction in a prosecution for unlawful possession of whiskey, which based defendant’s responsibility upon the relation of master and servant did not misapply the civil doctrine of respondeat superior, but properly recognized that in criminal cases such relationship may constitute both as principals. Grantham v. State, 190 Miss. 887, 2 So. 2d 150, 1941 Miss. LEXIS 106 (Miss. 1941).

Refusal of peremptory instruction and of instruction ignoring law authorizing punishment of persons who are accessories to felony was not error, where evidence showed defendant furnished still used in unlawful manufacture of liquor. Bailey v. State, 143 Miss. 210, 108 So. 497, 1926 Miss. LEXIS 257 (Miss. 1926).

Defendant not present could only be convicted as accessory before the fact; instruction should define accessory before the fact. Williams v. State, 128 Miss. 271, 90 So. 886, 1922 Miss. LEXIS 113 (Miss. 1922).

7. Conviction.

In a prosecution for armed robbery, the defendant was properly convicted as a principal where he had aided and abetted the person who actually robbed the bank in question. Anderson v. State, 397 So. 2d 81, 1981 Miss. LEXIS 1988 (Miss. 1981).

Where the defendants falsely represented to seller of paint that they were working for a certain person and wanted paint purchased charged to his account, the defendants by implication falsely represented that they were authorized to have the paint so charged and where after receiving the paint they deposited it as a security for a loan thereby establishing an intent to defraud, this was sufficient to support conviction of obtaining property by false pretenses. Fortenberry v. State, 213 Miss. 116, 56 So. 2d 56, 1952 Miss. LEXIS 338 (Miss. 1952).

One who steals property, or who is accessory before fact to grand larceny cannot be convicted of receiving, concealing, or aiding in concealing, the property stolen. Thomas v. State, 205 Miss. 653, 39 So. 2d 272, 1949 Miss. LEXIS 456 (Miss. 1949).

Accused indicted as principal may be convicted as accessory before fact. Goss v. State, 205 Miss. 177, 38 So. 2d 700, 1949 Miss. LEXIS 424 (Miss. 1949).

Accessory before the fact may be convicted of higher degree than was party who actually committed the felony, if latter, on trial of former, is shown guilty of higher degree. Fleming v. State, 142 Miss. 872, 108 So. 143, 1926 Miss. LEXIS 134 (Miss. 1926).

RESEARCH REFERENCES

ALR.

Who other than actor if liable for manslaughter. 95 A.L.R.2d 175.

Criminality of act of directing to, or recommending, source from which illicit drugs may be purchased. 42 A.L.R.3d 1072.

Offense of aiding and abetting illegal possession of drugs or narcotics. 47 A.L.R.3d 1239.

Acquittal of principal, or his conviction of lesser degree of offense, as affecting prosecution of accessory, or aider and abettor. 9 A.L.R.4th 972.

Adverse presumption or inference based on failure to produce or examine codefendant or accomplice who is not on trial–modern criminal cases. 76 A.L.R.4th 812.

Criminality of act of directing to, or recommending, source from which illegal drugs may be purchased. 34 A.L.R.5th 125.

Criminal responsibility under 18 USCS § 2(b) of one who lacks capacity to commit an offense but who causes another to do so. 52 A.L.R. Fed. 769.

Am. Jur.

21 Am. Jur. 2d, Criminal Law § 169.

CJS.

22 C.J.S., Criminal Law §§ 176-178.

Law Reviews.

1979 Mississippi Supreme Court Review: Criminal Law and Procedure. 50 Miss. L. J. 763, December, 1979.

Practice References.

Ronald L. Schoenberg, Criminal Law Deskbook (Matthew Bender).

§ 97-1-5. Accessories after the fact; punishment.

  1. Every person who shall be convicted of having concealed, received, or relieved any felon, or having aided or assisted any felon, knowing that the person had committed a felony, with intent to enable the felon to escape or to avoid arrest, trial, conviction or punishment after the commission of the felony, on conviction thereof shall be imprisoned in the custody of the Department of Corrections as follows:
    1. If the felony was a violent crime:
      1. If the maximum punishment was life, death or twenty (20) years or more, for a period not to exceed twenty (20) years; or
      2. If the maximum punishment for the violent felony was less than twenty (20) years, for a period not to exceed the maximum punishment.
    2. If the felony was a nonviolent crime:
      1. If the maximum punishment for the nonviolent felony was ten (10) years or more, for a period not to exceed ten (10) years; or
      2. If the maximum punishment for the nonviolent felony was less than ten (10) years, for a period not to exceed the maximum punishment.
  2. For the purposes of this section, “violent crime” means homicide, robbery, manslaughter, sex crimes, burglary of an occupied dwelling, aggravated assault, kidnapping, drive-by shooting, armed robbery, felonious abuse of a vulnerable person, felonies subject to an enhanced penalty, felony child abuse or exploitation, or any violation of Section 97-5-33 relating to exploitation of children, Section 97-5-39(1)(b), 97-5-39(1)(c) or 97-5-39(2) relating to child neglect or abuse, or Section 63-11-30(5) relating to aggravated DUI.
  3. In the prosecution of an offense under this section, it shall not be necessary to aver in the indictment or to prove on the trial that the principal has been convicted or tried.

HISTORY: Codes, Hutchinson’s 1848, ch. 64, art. 12, Title 8 (7); 1857, ch. 64, art. 3; 1871, § 2485; 1880, § 2699; 1892, § 951; 1906, § 1027; Hemingway’s 1917, § 752; 1930, § 770; 1942, § 1996; Laws, 2012, ch. 496, § 1, eff from and after passage (approved April 30, 2012.).

Amendment Notes —

The 2012 amendment added “custody of the Department of Corrections as follows:” at the end of (1); added (1)(a) and (2); added “of an offense under this section” following “prosecution” at the beginning of (3).

Cross References —

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any felony violation, see §99-19-73.

JUDICIAL DECISIONS

1. In general.

2. Evidence; generally.

3. —Sufficiency.

4. Instructions.

1. In general.

Defendant was properly convicted of attempted accessory after the fact and hindering the prosecution because she knew that her passenger had a gun, heard him say that he planned on killing the police officers who had pulled their car over, and when the passenger shot one of the officers, defendant offered him a means of escape, she later gave a false description of the passenger to law enforcement and maintained that she did know his name or whereabouts. Calloway v. State, 281 So.3d 909, 2019 Miss. App. LEXIS 85 (Miss. Ct. App. 2019).

Because the coconspirator asserted that she had assisted a plea-bargaining defendant involved in this case with covering up the crime, the coconspirator confessed to some elements of acting as an accessory after the fact, but her confession indicated duress, and if true, this asserted a defense to liability; her letters were nothing more than an attempt to exonerate herself from her pending murder charge and place blame elsewhere, and the fact that she may also have implicated herself in a much lesser crime was of no consequence, her statements were not against her penal interest, and they were not admissible. Hartfield v. State, 161 So.3d 125, 2015 Miss. LEXIS 125 (Miss. 2015).

By defendant’s own admission, corroborated by testimony, defendant was a principal to the crime of murder and thus he could not have been at the same time an accessory after the fact under Miss. Code Ann. §97-1-5 and defendant was not entitled to an instruction on such. Williams v. State, 994 So. 2d 808, 2008 Miss. App. LEXIS 183 (Miss. Ct. App.), cert. denied, 998 So. 2d 1010, 2008 Miss. LEXIS 665 (Miss. 2008).

Attorney’s disbarment was appropriate pursuant to Miss. R. Disc. St. Bar 6 because the attorney had pled guilty to the crime of accessory after the fact in violation of Miss. Code Ann. §97-1-5 and she had been ordered to voluntarily surrender her license to practice law; all procedural prerequisites had been met and disbarment was required. Miss. Bar v. Smith-Miller, 962 So. 2d 545, 2007 Miss. LEXIS 185 (Miss. 2007).

Where there was a conflict between the sentencing order and the commitment order, the sentencing order that stated that the inmate was to serve three years in prison and two years on supervised release controlled; thus, the five year sentence was valid under Miss. Code Ann. §97-1-5 for his conviction of accessory after the fact to murder. Fuller v. State, 914 So. 2d 1230, 2005 Miss. App. LEXIS 858 (Miss. Ct. App. 2005).

The indictment for accessory-after-the-fact properly charged defendant with the completed crime for which she was convicted, rather than an attempted crime, because the indictment tracked the language of Miss. Code Ann. §97-1-5 and the use of the language “in an attempt to assist” her son described the mental state required for a conviction of accessory-after-the fact, which was that the defendant acted with “intent to enable” a felon to escape or avoid arrest, trial, conviction or punishment as provided in §97-1-5. There was overwhelming evidence that defendant’s son had committed a felony, that defendant knew her son was wanted by authorities, and that defendant aided her son in evading justice by harboring him and concealing him from law enforcement. Young v. State, 908 So. 2d 819, 2005 Miss. App. LEXIS 445 (Miss. Ct. App. 2005).

One cannot be both a principal in the crime and an accessory after the fact. Hoops v. State, 681 So. 2d 521, 1996 Miss. LEXIS 433 (Miss. 1996).

One of the critical distinctions between being an accessory before and after the fact is whether the felony is complete at the time assistance is rendered. One is an accessory before the fact when assistance is rendered the principal before the felony is completed in order to help the principal in the commission or completion of the offense; this would include entering into a pre-arranged plan for escape of the principals. An accessory before the fact necessarily participates in the design of the felony while an accessory after the fact is a person assisting one, who has completed the commission of a felony, to avoid being apprehended, arrested, convicted, etc. Gangl v. State, 539 So. 2d 132, 1989 Miss. LEXIS 93 (Miss. 1989).

Under this section, the state must prove (1) that a completed felony has been committed; (2) that the accused concealed, received, relieved, aided or assisted a felon, knowing that such person had committed a felony; and (3) that such aid or assistance was rendered with intent to enable such felon to escape or to avoid arrest, trial, conviction or punishment after the commission of such felony. Redevelopment Authority of Kosciusko v. Sewell, 290 So. 2d 924, 1974 Miss. LEXIS 1719 (Miss. 1974).

When one is accused of aiding a felon after the commission of a felony, such felon should be identified, either by name or in some other manner, so the accused might know with certainty the person he is charged with aiding or assisting, and such identity should be set forth in the indictment and proved. Redevelopment Authority of Kosciusko v. Sewell, 290 So. 2d 924, 1974 Miss. LEXIS 1719 (Miss. 1974).

Owner of automobile who loaned his automobile to killer and his brother in county of owner’s residence, adjoining county in which killing took place, was not subject to prosecution as an accessory after the fact in county in which killing occurred because killer and his brother, who drove the automobile, thereafter drove through such county on the way to the killer’s home, where, although defendant was aware of the crime, he had no connection therewith, and killer’s brother, in driving the automobile, was not the agent of the owner. Washington v. State, 196 Miss. 293, 17 So. 2d 203, 1944 Miss. LEXIS 189 (Miss. 1944).

A person cannot be both a principal and an accessory after the fact. Crosby v. State, 179 Miss. 149, 175 So. 180, 1937 Miss. LEXIS 27 (Miss. 1937).

Assistance rendered principal before felony is completed to avoid arrest therefor makes person rendering assistance an “accessory before and not after the fact.” Crosby v. State, 179 Miss. 149, 175 So. 180, 1937 Miss. LEXIS 27 (Miss. 1937).

One indicted as a participant in or accessory before the fact to a murder cannot be convicted as an accessory after the fact. Harper v. State, 83 Miss. 402, 35 So. 572, 1903 Miss. LEXIS 59 (Miss. 1903).

2. Evidence; generally.

Defendant’s 20-year sentence for attempted accessory after the fact did not create an inference of gross disproportionality under the Eighth Amendment because it clearly fell within the statutory limits and she failed to make a threshold comparison of the crime committed to the sentence imposed. Calloway v. State, 281 So.3d 909, 2019 Miss. App. LEXIS 85 (Miss. Ct. App. 2019).

Defendant pointed out that he had not taken the victim’s money, rather, that it was a co-defendant who took it, and that the State’s evidence did not introduce him on the scene of the robbery until after it had been completed by his co-defendant. He also argued that the State had failed to prove that the victim had been kidnapped before he was killed, and therefore, the State had failed to prove the corpus delicti of kidnapping; however, considering all of the evidence in the light most favorable to the State, the trial court did not err in denying defendant’s motion for judgment notwithstanding the verdict with respect to the accessory to armed robbery and kidnapping charges, as defendant assisted his co-defendant by holding a gun on the victim’s friend and prevented that friend from assisting the victim or escaping to obtain assistance before the victim was transferred to another location and then repeatedly shot by his co-defendant. Parks v. State, 884 So. 2d 738, 2004 Miss. LEXIS 1165 (Miss. 2004).

Defendant pointed out that he had not taken the victim’s money, rather, that it was a co-defendant who took it, and that the State’s evidence did not introduce him on the scene of the robbery until after it had been completed by his co-defendant. He also argued that the State had failed to prove that the victim had been kidnapped before he was killed, and therefore, the State had failed to prove the corpus delicti of kidnapping; however, considering all of the evidence in the light most favorable to the State, the trial court did not err in denying defendant’s motion for judgment notwithstanding the verdict with respect to the accessory to armed robbery and kidnapping charges, as defendant assisted his co-defendant by holding a gun on the victim’s friend and prevented that friend from assisting the victim or escaping to obtain assistance before the victim was transferred to another location and then repeatedly shot by his co-defendant. Parks v. State, 884 So. 2d 738, 2004 Miss. LEXIS 1165 (Miss. 2004).

Indictment charging making of lewd suggestion by defendant to victim and violent making of attack or assault upon victim properly charges attempted rape under §97-3-65, rather than assault with intent to rape under §97-3-71, where indictment accurately tracks §97-3-65 by omitting mention of “previous chaste character” and affirmatively asserts “carnally know,” and where, at trial, at specific request of defendant, defendant is informed that prosecution is under § 97-3-65 and defendant makes no objection to being tried under that statute. Harden v. State, 465 So. 2d 321, 1985 Miss. LEXIS 1959 (Miss. 1985).

Although defendant may very well have been an accessory after the fact under this section, the state never made a jury issue that he was engaged in a conspiracy under §97-1-1, where he had been trying to extricate his brother and a very good friend when he violated the law by possessing and transporting marijuana. Kennedy v. State, 454 So. 2d 495, 1984 Miss. LEXIS 2091 (Miss. 1984).

In a prosecution for conspiracy to sell heroin, the trial court properly overruled defendant’s plea in bar based on the two year statute of limitations, where defendant was shown to be a conspirator in a drug-selling ring, and where the proof showed that a co-conspirator, tried jointly with defendant, had illegally sold heroin to a narcotics agent within the two-year span prior to the indictment of defendant; once a defendant is established as being a conspirator, he remains a part of the conspiracy until he has extricated himself therefrom by communicating his abandonment in a manner reasonably expected to reach his co-conspirators. Norman v. State, 381 So. 2d 1024, 1980 Miss. LEXIS 1922 (Miss. 1980).

Evidence that defendant was himself a principal in the felonious killing of the woman was not admissible. Crosby v. State, 179 Miss. 149, 175 So. 180, 1937 Miss. LEXIS 27 (Miss. 1937).

Evidence that defendant procured pistol with which woman was killed without knowledge or consent of its owner and gave it to murderer, and that defendant, with knowledge that murderer had killed woman, surreptitiously returned pistol to the place from which he had procured it, was competent as bearing on defendant’s knowledge that murderer had killed woman with the pistol. Crosby v. State, 179 Miss. 149, 175 So. 180, 1937 Miss. LEXIS 27 (Miss. 1937).

Evidence that defendant knew when he gave pistol to murderer that murderer intended to kill woman with pistol was admissible. Crosby v. State, 179 Miss. 149, 175 So. 180, 1937 Miss. LEXIS 27 (Miss. 1937).

Admission of defendant’s confession that he concealed pistol was not error, in view of evidence as to concealment of pistol. Crosby v. State, 179 Miss. 149, 175 So. 180, 1937 Miss. LEXIS 27 (Miss. 1937).

Admission of evidence as to defendant’s burning of overalls worn by murderer at time of killing was not error. Crosby v. State, 179 Miss. 149, 175 So. 180, 1937 Miss. LEXIS 27 (Miss. 1937).

Proof of murder by alleged principal as original proposition, was not error, notwithstanding defendant’s admission of murder by alleged principal. Crosby v. State, 179 Miss. 149, 175 So. 180, 1937 Miss. LEXIS 27 (Miss. 1937).

Evidence that defendant at first denied any knowledge of murder when questioned by police shortly thereafter, and that he subsequently admitted that he was present and saw the murder, was not admissible where defendant was charged with the homicide at time of questioning. Crosby v. State, 179 Miss. 149, 175 So. 180, 1937 Miss. LEXIS 27 (Miss. 1937).

3. —Sufficiency.

Defendant’s conviction for being an accessory after the fact to her husband’s crime of statutory rape by assisting her daughter in obtaining an abortion was appropriate because defendant had concealed, received, relieved, aided, or assisted her husband and those actions were sufficient under Miss. Code Ann. §97-1-5 to support the conviction. Sherron v. State, 959 So. 2d 30, 2006 Miss. App. LEXIS 832 (Miss. Ct. App. 2006), cert. denied, 958 So. 2d 1232, 2007 Miss. LEXIS 375 (Miss. 2007).

Evidence was sufficient to support defendant’s conviction for accessory-after-the-fact of the crime of possession of marijuana with intent to distribute pursuant to Miss. Code Ann. §97-1-5 where the evidence showed that defendant failed to call police as she had been instructed if her son, who was wanted on a marijuana conviction, returned to her home, and she failed to answer the door when police came back to the house and found defendant’s son inside. There was overwhelming evidence that defendant’s son had committed a felony, that defendant knew her son was wanted by authorities, and that defendant aided her son in evading justice by harboring him and concealing him from law enforcement. Young v. State, 908 So. 2d 819, 2005 Miss. App. LEXIS 445 (Miss. Ct. App. 2005).

Because the evidence showed that defendant accompanied others in retrieving stolen property and disposing of it, there was sufficient evidence to support defendant’s conviction of accessory after the fact to burglary. Martin v. State, 834 So. 2d 727, 2003 Miss. App. LEXIS 7 (Miss. Ct. App. 2003).

The evidence was sufficient to support a conviction of accessory after the fact of robbery where the defendant was a part of the robbery plans in the beginning, she kept and provided the get-away automobile after the bank was robbed but before the active robbers had completed their flight, and she gave orders to her confederates after all of them were apprehended. Harrell v. State, 583 So. 2d 963, 1991 Miss. LEXIS 457 (Miss. 1991).

A jury would have been warranted in finding the defendant guilty as an accessory after the fact to burglary or larceny, but not as a principal to burglary, where the defendant was present at the time of the burglary of a store but neither assisted nor encouraged the perpetrator of the burglary by any word or act to commit the crime. Smith v. State, 523 So. 2d 1028, 1988 Miss. LEXIS 190 (Miss. 1988).

Evidence was sufficient to support guilty verdict of accessory after the fact of larceny where defendant assisted in disposition of items of personal property taken in course of burglary. Buckley v. State, 511 So. 2d 1354, 1987 Miss. LEXIS 2646 (Miss. 1987).

Facts and circumstances known to accused at time of his arrest while aiding in transportation of stolen tires, were insufficient to support conclusion that he knew a felony had been committed or that he was assisting the felon (whoever he might have been) dispose of tires. Redevelopment Authority of Kosciusko v. Sewell, 290 So. 2d 924, 1974 Miss. LEXIS 1719 (Miss. 1974).

State must prove that the alleged principal feloniously killed the woman and that thereafter the defendant, with actual knowledge thereof, committed specific acts with intent thereby to enable the alleged principal to escape or to avoid arrest, trial, conviction, or punishment. Crosby v. State, 179 Miss. 149, 175 So. 180, 1937 Miss. LEXIS 27 (Miss. 1937).

Whether murder by alleged principal should be proved as original proposition in prosecution for statutory offense of being accessory after the fact to a murder, wherein defendant admitted murder by alleged principal, rested in trial court’s sound discretion, which would not be interfered with in absence of manifest abuse. Crosby v. State, 179 Miss. 149, 175 So. 180, 1937 Miss. LEXIS 27 (Miss. 1937).

4. Instructions.

Circuit court did not err when it refused a proposed accessory after the fact instruction because there was no evidence that defendant acted to help an accomplice avoid being punished for killing the victim as the accomplice testified that defendant shot the victim twice in the back, but defendant chose not to testify. Leagea v. State, 138 So.3d 184, 2013 Miss. App. LEXIS 692 (Miss. Ct. App. 2013), cert. denied, 139 So.3d 74, 2014 Miss. LEXIS 251 (Miss. 2014).

Defendant juvenile was not entitled to an accessory-after-the-fact instruction since defendant’s involvement in the underlying robbery began earlier in the day when the group decided to go “hit a lick” and headed to the gas station where the victim was killed. Hye v. State, 162 So.3d 818, 2013 Miss. App. LEXIS 292 (Miss. Ct. App. 2013), aff'd in part, vacated in part, 162 So.3d 750, 2015 Miss. LEXIS 69 (Miss. 2015).

Trial judge did not err in denying defendant’s request for lesser offense instructions on accessory after the fact and/or receiving stolen goods, Miss. Code Ann. §§97-17-70 and97-1-5, as these lesser offenses were separate and distinct from those charged, and there was no evidentiary basis to support the requisite knowledge element for either instruction. Brazzle v. State, 13 So.3d 810, 2009 Miss. LEXIS 339 (Miss. 2009).

Trial court did not err by refusing to give defendant’s requested accessory-after-the-fact jury instruction because considering the evidence in the light most favorable to defendant, a reasonable jury could not have found defendant guilty as an accessory after the fact. There was no evidence that defendant acted with the intent to enable the man with the crooked eye to escape or avoid arrest, trial, conviction, or punishment for the victim’s murder. Brown v. State, 19 So.3d 85, 2008 Miss. App. LEXIS 789 (Miss. Ct. App. 2008), cert. denied, 19 So.3d 82, 2009 Miss. LEXIS 489 (Miss. 2009).

At defendant’s trial for capital murder during the commission of a robbery, defendant was not entitled to a lesser-offense instruction of accessory-after-the-fact under Miss. Code Ann. §97-1-5. The proposed instruction lacked an evidentiary basis; defendant said that he became uncomfortable about the incident only later that evening, but remained unaware that any felony had been committed. Dampier v. State, 973 So. 2d 221, 2008 Miss. LEXIS 57 (Miss. 2008).

In a capital murder case, the trial court did not err in refusing defendant’s requested jury instruction concerning accessory after the fact as the evidence clearly demonstrated defendant’s involvement prior to the crime, that she was the mastermind of the plot to kill her husband, that she gave incriminating statements to law enforcement that described her conversations with a co-conspirator and others regarding having her husband killed, and her son’s statement revealed that defendant told him where his father had hidden the pistol that was used to kill him. Byrom v. State, 863 So. 2d 836, 2003 Miss. LEXIS 535 (Miss. 2003), cert. denied, 543 U.S. 826, 125 S. Ct. 71, 160 L. Ed. 2d 40, 2004 U.S. LEXIS 5754 (U.S. 2004).

In a prosecution for capital murder, the trial court properly refused to instruct the jury regarding accessory after the fact where the defendant’s two coperpetrators both testified that the defendant took part in designing the attempted robbery and escape and one of them placed the defendant as the “getaway” driver, and the only contrary evidence was the defendant’s own in which he claimed that he was never involved in planning any crime and that he never assisted either coperpetrator afterwards in any way. Mangum v. State, 762 So. 2d 337, 2000 Miss. LEXIS 163 (Miss. 2000).

An indispensable element of the crime of concealing, receiving, or relieving a felon, or aiding or assisting a felon, with the intent to enable such felon to escape or to avoid arrest, trial, conviction, or punishment after the commission of a felony, is guilty knowledge on the part of the one charged with the crime. Matula v. State, 220 So. 2d 833, 1969 Miss. LEXIS 1480 (Miss. 1969).

From the mere fact that the defendant traveled with the perpetrator of an attempted burglary, it could not be inferred that the defendant had committed the offense of feloniously concealing, receiving, or relieving a felon, or aiding or assisting him in the attempted burglary with the intent to enable such felon to escape or to avoid indictment, trial, conviction, or punishment. Matula v. State, 220 So. 2d 833, 1969 Miss. LEXIS 1480 (Miss. 1969).

In prosecution for statutory offense of being an accessory after the fact to the murder of a woman, instruction that principal in commission of felony cannot thereafter become an accessory after the fact, and that defendant could not be convicted of being an accessory after the fact if he himself murdered woman or assisted another so to do, should have been granted. Crosby v. State, 179 Miss. 149, 175 So. 180, 1937 Miss. LEXIS 27 (Miss. 1937).

RESEARCH REFERENCES

ALR.

Offense of aiding and abetting illegal possession of drugs or narcotics. 47 A.L.R.3d 1239.

Acquittal of principal, or his conviction of lesser degree of offense, as affecting prosecution of accessory, or aider and abettor. 9 A.L.R.4th 972.

Adverse presumption or inference based on failure to produce or examine codefendant or accomplice who is not on trial–modern criminal cases. 76 A.L.R.4th 812.

Am. Jur.

21 Am. Jur. 2d, Criminal Law § 170.

CJS.

22 C.J.S., Criminal Law §§ 179-181.

Practice References.

Ronald L. Schoenberg, Criminal Law Deskbook (Matthew Bender).

§ 97-1-6. Directing or causing felony to be committed by person under age of seventeen years.

In addition to any other penalty and provision of law, any person over the age of seventeen (17) who shall direct or cause any person under the age of seventeen (17) to commit any crime which would be a felony if committed by an adult shall be guilty of a felony and upon conviction shall be fined not more than Ten Thousand Dollars ($10,000.00) or imprisoned for not more than twenty (20) years, or both.

HISTORY: Laws, 1994, ch. 595, § 7, eff from and after July 1, 1994.

JUDICIAL DECISIONS

1. Evidence sufficient to sustain conviction.

2. Evidence insufficient to sustain a conviction.

1. Evidence sufficient to sustain conviction.

The evidence was sufficient to support the defendant’s conviction under the statute where one of his coperpetrators, who was under 17 years of age, testified that the defendant planned the crime and that he would not have committed the crime if the defendant had not planned it, and where the evidence showed that the coperpetrator actually assisted in the crime. Mamon v. State, 724 So. 2d 878, 1998 Miss. LEXIS 602 (Miss. 1998).

2. Evidence insufficient to sustain a conviction.

Miss. Code Ann. §97-1-6 pertains to persons over the age of seventeen and not persons who are seventeen at the time a crime is committed. Therefore, a conviction for directing or causing a minor to commit a felony was based on insufficient evidence because appellant was only 17 when a crime was committed; moreover, the jury instructions failed to include the necessary language that appellant be over seventeen at the time of the crime. Armstead v. State, 80 So.3d 112, 2011 Miss. App. LEXIS 365 (Miss. Ct. App. 2011), cert. denied, 80 So.3d 111, 2012 Miss. LEXIS 77 (Miss. 2012).

RESEARCH REFERENCES

ALR.

Validity, Construction, and Application of 18 U.S.C.S. 373, Proscribing Solicitation to Commit Crime of Violence. 49 A.L.R. Fed 2d 333.

§ 97-1-7. Attempt to commit offense; punishment.

  1. Every person who shall design and endeavor to commit an offense, and shall do any overt act toward the commission thereof, but shall fail therein, or shall be prevented from committing the same, on conviction thereof, shall, where no other specific provision is made by law for the punishment of the attempt, be punished by imprisonment and fine for a period and for an amount not greater than is prescribed for the actual commission of the offense so attempted.
  2. Every person who shall design and endeavor to commit an act which, if accomplished, would constitute an offense of murder under Section 97-3-19, but shall fail therein, or shall be prevented from committing the same, shall be guilty of attempted murder and, upon conviction, shall be imprisoned for life in the custody of the Department of Corrections if the punishment is so fixed by the jury in its verdict after a separate sentencing proceeding. If the jury fails to agree on fixing the penalty at imprisonment for life, the court shall fix the penalty at not less than twenty (20) years in the custody of the Department of Corrections.

HISTORY: Codes, Hutchinson’s 1848, ch. 64, art. 12, Title 8 (3); 1857, ch. 64, art. 20; 1871, § 2809; 1880, § 2713; 1892, § 973; 1906, § 1049; Hemingway’s 1917, § 777; 1930, § 793; 1942, § 2017; Laws, 2013, ch. 510, § 1, eff from and after July 1, 2013.

Amendment Notes —

The 2013 amendment in (1), inserted “other specific” preceding “provision is made by law for the punishment of,” substituted “the attempt” for “such offense,” substituted “by imprisonment and fine” for “as follows: If the offense attempted to be committed be capital, such offense shall be punished by imprisonment in the penitentiary not exceeding ten years; if the offense attempted be punishable by imprisonment in the penitentiary, or by fine and imprisonment in the county jail, then the attempt to commit such offense shall be punished”; added (2); and made minor stylistic changes.

Cross References —

Murder, as provided in subsection (2) of this section, defined as crime of violence, see §97-3-2.

Mandatory reporting of offense under this section relating to the attempt to commit any of the offenses listed in §97-5-51(1) when committed by an adult against a minor under the age of sixteen, see §97-5-51.

Arrests without warrant, see §99-3-7.

An insane person charged with crime, see §99-13-3.

Conviction of attempt as constituent of offense charged, see §99-19-15.

JUDICIAL DECISIONS

1. In general.

2. Indictment.

3. Particular offenses.

4. —Burglary.

5. —Embezzlement.

6. —False pretenses.

7. —Homicide.

8. —Sexual offenses.

9. — —Evidence.

10. — Miscellaneous.

11. Sentence.

12. Instructions

1. In general.

Defendant was properly convicted of attempted accessory after the fact and hindering the prosecution because she knew that her passenger had a gun, heard him say that he planned on killing the police officers who had pulled their car over, and when the passenger shot one of the officers, defendant offered him a means of escape, she later gave a false description of the passenger to law enforcement and maintained that she did know his name or whereabouts. Calloway v. State, 281 So.3d 909, 2019 Miss. App. LEXIS 85 (Miss. Ct. App. 2019).

Defendant was wrongly convicted of attempted aggravated assault because the doctrine of transferred intent was not applicable as defendant deliberately shot and killed the intended victim, but the unintended victim was unharmed when the bullet landed near the unintended victim. Defendant had no intention to harm the unintended victim, defendant was not aware of the unintended victim’s presence, and there was no evidence that the unintended victim was in any fear of harm. Craig v. State, 201 So.3d 1108, 2016 Miss. App. LEXIS 598 (Miss. Ct. App. 2016).

Defendant’s right against double-jeopardy was not violated because, while the counts for fondling, under Miss. Code Ann. §97-5-23(1), and the attempted-sexual-battery, under Miss. Code. Ann. §97-1-7, stemmed from the same encounter, the elements of the crimes were not the same as each count contained an element not contained in the other. Attempted sexual battery did not contain the element of gratification of lust, while fondling did not require the element of penetration. Moore v. State, 112 So.3d 1084, 2013 Miss. App. LEXIS 207 (Miss. Ct. App. 2013).

Defendant was not entitled to instruction on abandonment as a defense to a charge of attempted carjacking where defendant ceased effort to steal a sports utility vehicle only after defendant’s efforts to unlock the vehicle’s doors were thwarted by a passenger sitting inside the vehicle. Kizart v. State, 795 So. 2d 582, 2001 Miss. App. LEXIS 366 (Miss. Ct. App. 2001).

Generally, attempt to commit a crime is an indictable offense, which is separate and distinct from the crime itself. Eakes v. State, 665 So. 2d 852, 1995 Miss. LEXIS 555 (Miss. 1995).

In general, this section requires a showing of 3 elements: (1) an attempt to commit a particular crime, (2) a direct ineffectual act done toward its commission, and (3) the failure to consummate its commission. McGowan v. State, 541 So. 2d 1027, 1989 Miss. LEXIS 180 (Miss. 1989).

In order to prove abandonment as a defense to the crime of attempt, the defendant must prove that he voluntarily abandoned his intent and did not have his intent frustrated by the resistance of the victim or the intervention of a third party. Pruitt v. State, 528 So. 2d 828, 1988 Miss. LEXIS 339 (Miss. 1988).

The 3 elements of an attempt to commit a specific crime are an intent to commit the crime, a direct ineffectual act done towards its commission, and the failure to consummate its commission. Edwards v. State, 500 So. 2d 967, 1986 Miss. LEXIS 2775 (Miss. 1986).

An attempt is an offense separate from the completed offense and it is indictable and punishable as such. McCullum v. State, 487 So. 2d 1335, 1986 Miss. LEXIS 2457 (Miss. 1986).

An attempt to commit a crime is an indictable offense separate and distinct from the crime itself, and failure to commit the target crime is an essential element of an attempt; accordingly, it was error to prosecute defendant on the charge of attempted armed robbery where there was conclusive proof that the robbery had been consummated. Mason v. State, 430 So. 2d 857, 1983 Miss. LEXIS 2612 (Miss. 1983).

Mere acts of preparation do not constitute an attempt; there must be some overt act which goes beyond mere preparation or planning. Smith v. State, 279 So. 2d 652, 1973 Miss. LEXIS 1491 (Miss. 1973).

The gravamen of the offense of an attempt to commit a crime is fixed by the statutory requirement that the defendant must do an overt act toward the commission thereof and be prevented from its consummation. State v. Lindsey, 202 Miss. 896, 32 So. 2d 876, 1947 Miss. LEXIS 353 (Miss. 1947).

Under the attempt statute no greater punishment may be administered than that prescribed for the actual commission of the offense attempted. Grillis v. State, 196 Miss. 576, 17 So. 2d 525, 1944 Miss. LEXIS 237 (Miss. 1944).

Whenever the design of a person to commit crime is clearly shown, slight acts done in furtherance will constitute an attempt. Dill v. State, 149 Miss. 167, 115 So. 203, 1928 Miss. LEXIS 15 (Miss. 1928).

In prosecution for attempt to commit offense, state must charge and prove overt act. Dill v. State, 149 Miss. 167, 115 So. 203, 1928 Miss. LEXIS 15 (Miss. 1928).

Necessary elements constituting crime are, intent to commit, and overt act. Miller v. State, 130 Miss. 730, 95 So. 83, 1922 Miss. LEXIS 255 (Miss. 1922).

The rule that the act attempted must be a possibility has no application where it merely becomes impossible for the crime to be committed. Stokes v. State, 92 Miss. 415, 46 So. 627, 1908 Miss. LEXIS 245 (Miss. 1908).

2. Indictment.

Defendant’s 20-year sentence for attempted accessory after the fact did not create an inference of gross disproportionality under the Eighth Amendment because it clearly fell within the statutory limits and she failed to make a threshold comparison of the crime committed to the sentence imposed. Calloway v. State, 281 So.3d 909, 2019 Miss. App. LEXIS 85 (Miss. Ct. App. 2019).

Amended indictment sufficiently charged the essential elements of attempted murder because the indictment charged that defendant attempted to kill and murder the victim; there was no need for the indictment to also specify that defendant failed or were prevented from completing the act. Pickett v. State, 252 So.3d 40, 2018 Miss. App. LEXIS 54 (Miss. Ct. App.), cert. denied, 250 So.3d 1271, 2018 Miss. LEXIS 374 (Miss. 2018), cert. denied, — So.3d —, 2018 Miss. LEXIS 376 (Miss. 2018).

Amendment to the indictment reflected the language used at trial and did not prejudice the defense because the amendment did not change the nature of the charges and thus, did not deprive defendants of a fair opportunity to present their defense; defendants could not claim unfair surprise, as they knew at all times that the victim was not actually shot, only shot at, and that was the basis for the charges of attempted murder. Pickett v. State, 252 So.3d 40, 2018 Miss. App. LEXIS 54 (Miss. Ct. App.), cert. denied, 250 So.3d 1271, 2018 Miss. LEXIS 374 (Miss. 2018), cert. denied, — So.3d —, 2018 Miss. LEXIS 376 (Miss. 2018).

Defendant’s indictment sufficiently notified him of the charge against him of attempted murder, given that the indictment used the word attempt and contained the language that the crime, if accomplished, would have constituted an offense of murder, which indicated the incompleteness of the attempted crime. Morton v. State, 246 So.3d 895, 2017 Miss. App. LEXIS 649 (Miss. Ct. App. 2017), cert. denied, 246 So.3d 886, 2018 Miss. LEXIS 295 (Miss. 2018).

Variance between the indictment and the jury instructions did not substantially alter the elements of proof necessary for a conviction, as the jury was charged that to convict defendant of attempted murder, it had to find that he intended to commit murder, attempted to do so, and failed to do so, and thus the jury was instructed on all the elements of proof necessary for a conviction. Morton v. State, 246 So.3d 895, 2017 Miss. App. LEXIS 649 (Miss. Ct. App. 2017), cert. denied, 246 So.3d 886, 2018 Miss. LEXIS 295 (Miss. 2018).

Indictment was not defective for failing to include the third element of attempted burglary: the failure to consummate its commission. The use of the word “attempt” gave defendant sufficient notice that the State would prove that the crime was not successfully committed. Spearman v. State, 2010 Miss. App. LEXIS 107 (Miss. Ct. App. Mar. 2, 2010), rev'd, 58 So.3d 30, 2011 Miss. App. LEXIS 277 (Miss. Ct. App. 2011).

Indictment was not defective for failing to include the third element of attempted burglary: the failure to consummate its commission. The use of the word “attempt” gave defendant sufficient notice that the State would prove that the crime was not successfully committed. Spearman v. State, 2010 Miss. App. LEXIS 107 (Miss. Ct. App. Mar. 2, 2010), rev'd, 58 So.3d 30, 2011 Miss. App. LEXIS 277 (Miss. Ct. App. 2011).

Indictment for aggravated assault, Miss. Code Ann. §97-3-7 (Rev. 2006), was not fatally defective because it did not need to specify an overt act of attempt where defendant was not indicted under the general attempt statute, Miss. Code Ann. §97-1-7 (Rev. 2006). Thus, the previous decision in Joshua v. State, 445 So. 2d 221 (Miss. 1984), which held that that the separate elements of attempt had to be set out in a criminal indictment for aggravated assault, was expressly overruled. Brooks v. State, 18 So.3d 833, 2009 Miss. LEXIS 471 (Miss. 2009).

Indictment against defendant described the charge of attempted burglary by citing the burglary statute, providing the details of the alleged attempted burglary, and supplying the details concerning the failure to complete the burglary; thus, the indictment against defendant stated the essential facts, and fully notified him of the nature and cause of the charges brought against him, and therefore the trial court did not err in denying the motion to quash the indictment. Brown v. State, 961 So. 2d 720, 2007 Miss. App. LEXIS 13 (Miss. Ct. App. 2007).

Defendant was originally indicted for attempted breaking and entering, but the indictment was properly amended when the amendment was one of form, not substance, and defendant had notice, and the indictment never made reference to Miss. Code Ann. §97-1-7; had the original indictment stated “Attempted Burglary, Miss. Code Ann. §97-1-7” or failed to provide “Burglary of a Dwelling, Miss. Code Ann. §97-17-23,” then unquestionably the amendment would have been one of substance rather than form, and the supreme court would have been compelled to reverse the trial court’s conviction and sentence. This indictment, however, was styled and read “Burglary of a Dwelling, Miss. Code Ann. §97-17-23.” Spears v. State, 942 So. 2d 772, 2006 Miss. LEXIS 656 (Miss. 2006).

Because the information did not sufficiently charge defendant with armed robbery, as it did not charge the overt act as the display of a weapon by another perpetrator and then the shooting of the victim, defendant’s armed robbery conviction, the result of a guilty plea, was reversed; however, because there was a sufficient charge of simple robbery, if not for the word “attempt,” the court affirmed a conviction of robbery, and remanded for sentencing on that count. Neal v. State, 936 So. 2d 463, 2006 Miss. App. LEXIS 589 (Miss. Ct. App. 2006).

Miss. Code Ann. §41-29-313 made possession of precursor chemicals unlawful, and Miss. Code Ann. §97-1-7 (the attempt statute), and Miss. Code Ann. §41-29-313, when viewed together, gave the elements of the crime of attempted possession of precursor drugs or chemicals. Thus, where defendant was charged with attempted possession of precursor chemicals, his argument that the trial court had erred in allowing him to plead guilty to a nonexistent statute of attempted possession of precursor chemicals was rejected. Green v. State, 880 So. 2d 377, 2004 Miss. App. LEXIS 808 (Miss. Ct. App. 2004).

Indictment had to set out with certainty the specific conduct that the State asserted to be the overt act undertaken by the defendant in order to indict for an attempt; the indictment was rendered void where it did not contain a plain, concise and definite written statement of the essential facts constituting the offense charged because of its failure to set out with any certainty defendant’s overt act intended to aid the felon’s escape. White v. State, 851 So. 2d 400, 2003 Miss. App. LEXIS 671 (Miss. Ct. App. 2003).

Since the principal offenses of welfare fraud as defined in Mississippi Code §97-19-71 include attempts, an indictment for a principal welfare fraud offense is in no way defective because it employs the word “attempt,” and the state is not limited at trial to proof only of the attempt. McCullum v. State, 487 So. 2d 1335, 1986 Miss. LEXIS 2457 (Miss. 1986).

Indictment charging attempted child abuse may be amended to reflect code section under which defendant is charged and need not use precise words of statute. Watson v. State, 483 So. 2d 1326, 1986 Miss. LEXIS 2366 (Miss. 1986).

Prior to adoption of Uniform Criminal Rules of Circuit Court Practice, an indictment charging that defendant “did unlawfully, wilfully, feloniously and forcibly attempt to rape and ravage. . . a female above the age of 12 years, without the consent and against the will of. . . ” was insufficient; the defect was not waived by defendant’s failure to demur, and his conviction was reversed. Maxie v. State, 330 So. 2d 277, 1976 Miss. LEXIS 1845 (Miss. 1976).

An indictment which charged the defendant with intent to murder, designating the intended victim as well as charging overt acts of arming himself with a rifle and transporting himself to a point where he expected to find the victim, charged an intent to commit an offense, as well as an overt act toward its commission, and was not demurrable. Ford v. State, 218 So. 2d 731, 1969 Miss. LEXIS 1616 (Miss. 1969).

In an indictment charging the accused with the crime of attempting to commit false pretenses or cheats by organizing a group of people who attempted to defraud insurance companies by staging a fake or false wreck with automobiles, a statement that certain named individuals involved in the scheme bought insurance contracts to indemnify themselves from loss arising out of automobile accidents sufficiently described the insurance policies by designation and type and thereby indicated their purport within the meaning of Code 1942, § 2453. Prisock v. State, 244 Miss. 408, 141 So. 2d 711, 1962 Miss. LEXIS 463 (Miss. 1962).

Indictment properly charged the offense of an attempt to commit the crime of sodomy. Taurasi v. State, 233 Miss. 330, 102 So. 2d 120, 1958 Miss. LEXIS 385 (Miss. 1958).

An indictment for attempted rape is subject to demurrer where the alleged overt act described could have applied equally to other crimes. State v. Lindsey, 202 Miss. 896, 32 So. 2d 876, 1947 Miss. LEXIS 353 (Miss. 1947).

Indictment charging attempt to obtain money by false pretenses held to charge member of board of supervisors as well as road contractor with false pretenses. State v. Fitzgerald, 151 Miss. 229, 117 So. 517, 1928 Miss. LEXIS 289 (Miss. 1928).

Indictment charging attempt to obtain money by false pretenses by virtue of contract with county held fatally defective because not setting forth contract. State v. Fitzgerald, 151 Miss. 229, 117 So. 517, 1928 Miss. LEXIS 289 (Miss. 1928).

Allegation that alleged false account by contractor was prepared, signed and approved and filed with board of supervisors, charged overt act. State v. Fitzgerald, 151 Miss. 229, 117 So. 517, 1928 Miss. LEXIS 289 (Miss. 1928).

Chastity of female not element of defense and need not be alleged in prosecution for attempt to rape female of previous chaste character; separate offense from assault to rape female not of previous chaste character. Watkins v. State, 134 Miss. 211, 98 So. 537, 1923 Miss. LEXIS 242 (Miss. 1923); Hicks v. State, 130 Miss. 411, 94 So. 218, 1922 Miss. LEXIS 211 (Miss. 1922).

Accused entitled to have particulars alleged to constitute overt act of crime stated in the indictment. Stapleton v. State, 130 Miss. 737, 95 So. 86, 1922 Miss. LEXIS 257 (Miss. 1922).

It is sufficient to charge an attempt to commit a crime, coupled with an act towards it, falling short of the thing intended. State v. Wade, 102 Miss. 711, 59 So. 880, 1912 Miss. LEXIS 110 (Miss. 1912).

3. Particular offenses.

Where defendant confessed that he attacked the victim when she would not lend him money, and then searched the house for money after the victim was dead, sufficient evidence existed, at a minimum, to support a finding of attempted armed robbery, which under Miss. Code Ann. §97-3-79, supported a conviction for armed robbery. Carr v. State, 880 So. 2d 1079, 2004 Miss. App. LEXIS 849 (Miss. Ct. App. 2004).

Victim’s father testified that he had paid between $ 3,000 and $ 4,000 for the truck rims; although this was not direct testimony as to the value of the rims, it circumstantially provided a basis for the jury to infer that the rims were worth at least $ 250; defendant’s conviction for attempt to commit grand larceny was therefore appropriate and the trial court did not err in denying defendant’s motion for judgment notwithstanding the verdict, or in the alternative, a new trial. Smith v. State, 881 So. 2d 908, 2004 Miss. App. LEXIS 401 (Miss. Ct. App. 2004).

Evidence that defendants broke into a hotel room, assaulted one of the occupants with a gun, but aborted their plans after encountering unexpected resistance, was sufficient to establish that they possessed the requisite intent to commit an armed robbery; a victim’s watch was found on the floor, and the jury could have found that defendants removed the watch with the intent to take it. Broomfield v. State, 878 So. 2d 207, 2004 Miss. App. LEXIS 1182 (Miss. Ct. App.), cert. denied, 878 So. 2d 66, 2004 Miss. LEXIS 935 (Miss. 2004).

Evidence was sufficient to prove beyond a reasonable doubt that defendant committed attempted sexual battery, Miss. Code Ann. §97-1-7, because the second victim testified that (1) defendant attempted to engage in sexual penetration with the second victim by trying to insert defendant’s penis into the second victim’s mouth; (2) defendant was 24 or more months older than the second victim; and (3) the second victim was under the age of 14 years. Bell v. State, 835 So. 2d 953, 2003 Miss. App. LEXIS 214 (Miss. Ct. App. 2003).

4. —Burglary.

Evidence was sufficient to convict defendant of attempted burglary of a truck because the owner of the truck provided his eyewitness account, stating that he saw defendant trying to get into his truck; an officer testified that, when he arrived, defendant was walking away from the vehicle; the officer arrested defendant based on the incident report; a copy of the owner’s original title was admitted into evidence; and, while defendant stated that he had bought the truck, the owner testified that he had never seen defendant before that day and that his truck was not for sale. Anderson v. State, 201 So.3d 497, 2016 Miss. App. LEXIS 13 (Miss. Ct. App.), cert. denied, 203 So.3d 1133, 2016 Miss. LEXIS 431 (Miss. 2016).

Evidence was sufficient to support a guilty verdict for attempted burglary because, inter alia: (1) the victim testified that she heard someone removing the screen from her bedroom window and breathing heavily; (2) once the scene was investigated by the victim and the officers, the screen was found removed from the window; and (3) the victim testified to having seen defendant in her backyard shortly after hearing the window screen tampering; thus, the trial court did not err in denying defendant’s motion for a directed verdict, his request for a peremptory jury instruction, and his motion for a judgment notwithstanding the verdict. Brown v. State, 961 So. 2d 720, 2007 Miss. App. LEXIS 13 (Miss. Ct. App. 2007).

Indictment for attempted burglary must set forth an overt act toward the commission of the offense and where indictment fails to set forth such, indictment is defective. Durr v. State, 446 So. 2d 1016, 1984 Miss. LEXIS 1668 (Miss. 1984).

The overt act of the defendant in moving a display stand and placing it in a position so that he could obtain access to the roof of a drug store was in furtherance of a design and constitutes an attempt to commit burglary under the provisions of this section [Code 1942, § 2017]. Hendrix v. State, 206 So. 2d 328, 1968 Miss. LEXIS 1564 (Miss. 1968).

Attempted burglary of a store building is a felony. McCollum v. State, 197 So. 2d 252, 1967 Miss. LEXIS 1523 (Miss. 1967).

In prosecution for attempt to commit burglary with intent to steal, drunkenness of accused, while no defense, remained a factor in adjudging whether there was present a definite intent to steal. Bullock v. State, 195 Miss. 340, 15 So. 2d 285, 1943 Miss. LEXIS 142 (Miss. 1943).

“Intent” to commit burglary implies purpose only, while “attempt” to do so implies both purpose and actual effort to carry such purpose into effect. Jones v. State, 172 Miss. 597, 161 So. 143, 1935 Miss. LEXIS 178 (Miss. 1935).

Conviction of attempt to commit burglary will be sustained, if method employed was calculated to carry out such unlawful purpose, though not most sensible or usual method. Jones v. State, 172 Miss. 597, 161 So. 143, 1935 Miss. LEXIS 178 (Miss. 1935).

Intent to commit burglary was essential, indispensable element of crime charged by indictment for attempting to break and enter dwelling house by breaking or forcing window thereof, with intent to take, steal, and carry away personal property therein. Jones v. State, 172 Miss. 597, 161 So. 143, 1935 Miss. LEXIS 178 (Miss. 1935).

Mere fact that one charged with attempt to commit burglary rattled window of dwelling “like he was trying to get in” raised no presumption that he intended to commit such crime. Jones v. State, 172 Miss. 597, 161 So. 143, 1935 Miss. LEXIS 178 (Miss. 1935).

Design to effect entrance into dwelling unlawfully may be shown by circumstances in trial for attempt to commit burglary. Jones v. State, 172 Miss. 597, 161 So. 143, 1935 Miss. LEXIS 178 (Miss. 1935).

An act may be sufficient in and of itself to warrant jury in finding that one charged with attempt to commit burglary intended to commit such crime. Jones v. State, 172 Miss. 597, 161 So. 143, 1935 Miss. LEXIS 178 (Miss. 1935).

Evidence, in trial for attempt to commit burglary, that defendant rattled window of dwelling house “like he was trying to get in” and falsely stated that cook thereat had told him to bring some eggs there, held insufficient to sustain conviction. Jones v. State, 172 Miss. 597, 161 So. 143, 1935 Miss. LEXIS 178 (Miss. 1935).

5. —Embezzlement.

The crime of attempted embezzlement is not established where the evidence fails to show an overt act on the part of the defendant to commit the crime charged before he abandoned his alleged purpose. Kern v. Noble, 206 So. 2d 200, 1968 Miss. LEXIS 1557 (Miss. 1968).

6. —False pretenses.

Evidence, including the testimony of eight accomplices who testified for the state, sustained the conviction of an attorney for an attempt to commit the crime of false pretenses or cheats by organizing a group of people who attempted to defraud insurance companies by staging a fake or false wreck with automobiles, after having obtained hospitalization insurance on the participants and liability insurance on the offending vehicle. Prisock v. State, 244 Miss. 408, 141 So. 2d 711, 1962 Miss. LEXIS 463 (Miss. 1962).

Attempt to commit false pretenses is indictable offense. State v. Fitzgerald, 151 Miss. 229, 117 So. 517, 1928 Miss. LEXIS 289 (Miss. 1928).

7. —Homicide.

Evidence supported defendant’s convictions for second degree murder and multiple counts of attempted murder because witnesses to the shooting said that defendant was in a vehicle seated on the passenger side of the vehicle behind a codefendant, two of the victims said defendant shot at them while passing their vehicle, and the driver of the vehicle in which defendant was a passenger said in a statement before the driver’s death that defendant was instrumental in getting rid of the driver’s vehicle after the shooting. Holland v. State, — So.3d —, 2020 Miss. App. LEXIS 23 (Miss. Ct. App. Feb. 4, 2020).

Trial court did not abuse its discretion in admitting prior-assault evidence as proof of defendant’s intent because it found the testimony and exhibits showing his wife’s bruises from that prior assault were probative to prove defendant intent, a necessary element of attempted murder; after filtering the evidence, the trial court found it was more probative than prejudicial. Bowman v. State, 283 So.3d 154, 2019 Miss. LEXIS 359 (Miss. 2019).

Jury was correctly instructed on the elements of attempted-murder because defendants’ acts of shooting at the victim with a firearm with the deliberate design to effect his death were acts, which, if accomplished, would constitute first-degree murder; not only did defendants approach the victim with guns drawn, verbally threaten to kill him, and say that they wanted him dead, they fired multiple shots at him as he tried to hide and escape. Pickett v. State, 252 So.3d 40, 2018 Miss. App. LEXIS 54 (Miss. Ct. App.), cert. denied, 250 So.3d 1271, 2018 Miss. LEXIS 374 (Miss. 2018), cert. denied, — So.3d —, 2018 Miss. LEXIS 376 (Miss. 2018).

Attempted-murder statute was intended to punish the crimes committed, and no person of common intelligence would have to guess at its meaning or would differ as to its application, nor does the statute encourage arbitrary and erratic arrests; thus, the statute is not unconstitutionally vague. Pickett v. State, 252 So.3d 40, 2018 Miss. App. LEXIS 54 (Miss. Ct. App.), cert. denied, 250 So.3d 1271, 2018 Miss. LEXIS 374 (Miss. 2018), cert. denied, — So.3d —, 2018 Miss. LEXIS 376 (Miss. 2018).

Attempted-murder statute was not overly broad, as it did not sweep within its ambit other protected rights. Pickett v. State, 252 So.3d 40, 2018 Miss. App. LEXIS 54 (Miss. Ct. App.), cert. denied, 250 So.3d 1271, 2018 Miss. LEXIS 374 (Miss. 2018), cert. denied, — So.3d —, 2018 Miss. LEXIS 376 (Miss. 2018).

Verdicts finding defendants guilty of attempted murder were not against the weight or sufficiency of the evidence because the victim testified defendants fired multiple rounds at him after he exited a garbage truck and that all shots were directed at him; a witness corroborated the testimony, and investigators recovered thirteen shell casings near the garbage truck and discovered eight bullet holes in the hood, side mirror, windshield, and side window. Pickett v. State, 252 So.3d 40, 2018 Miss. App. LEXIS 54 (Miss. Ct. App.), cert. denied, 250 So.3d 1271, 2018 Miss. LEXIS 374 (Miss. 2018), cert. denied, — So.3d —, 2018 Miss. LEXIS 376 (Miss. 2018).

Evidence was sufficient to convict defendant of the attempted murder of the victim, his wife, as any alleged abandonment by defendant did not bar his conviction because the jury heard testimony that defendant intended to murder the victim, as the victim testified that defendant had told her that he was going to kill her with a machete, and that he took action to carry out the crime, well beyond mere preparation, by repeatedly striking her with the machete; and, even if defendant prevented the victim from succumbing to the wounds he inflicted by calling 911 after he left the home, he completed the crime of attempted murder when he proceeded beyond mere preparation in carrying out his intent to kill the victim. Green v. State, 269 So.3d 75, 2018 Miss. LEXIS 413 (Miss. 2018).

Evidence was sufficient to support a conviction for attempted murder where (1) the defendant tracked his targets, traveled the substantial distance necessary to furnish himself direct access to the victims, and procured the very weapon and abundant ammunition with which to accomplish his deadly mission, and (2) when the victims confronted him as to his purpose for being in Mississippi, he threatened to use the weapon to kill them. Morris v. State, 745 So. 2d 862, 1999 Miss. App. LEXIS 286 (Miss. Ct. App. 1999).

The difference between attempted murder and aggravated assault is the specific intent requirement, for the former, and the element of deadly weapon use, for the latter. In many fact scenarios, both charges are established by the same evidence. McGowan v. State, 541 So. 2d 1027, 1989 Miss. LEXIS 180 (Miss. 1989).

A defendant who was convicted of aggravated assault and sentenced to 15 years imprisonment was not entitled to a jury instruction on attempted murder which carries a maximum sentence of 10 years imprisonment, even though the evidence would have supported a conviction for either offense, since there was no view of the evidence under which the defendant might have been found guilty of attempted murder and not guilty of aggravated assault. McGowan v. State, 541 So. 2d 1027, 1989 Miss. LEXIS 180 (Miss. 1989).

Evidence sustained conviction of attempted murder where defendant had the intent to murder his intended victim, and had committed overt acts toward the consummation of the crime by attempting to forceably enter the victim’s home after arming himself with a deadly weapon, and was prevented from carrying out his intent to murder only because his intended victim shot him first. Ledet v. State, 286 So. 2d 817, 1973 Miss. LEXIS 1320 (Miss. 1973).

An instruction to the jury in a prosecution for murder that even if the deceased attempted to have unnatural intercourse with the defendant, but the danger of accomplishment of the crime by the deceased was over and at a time when such danger was not imminent or impending the defendant tied and gagged the deceased, and if the jury finds robbery, then the crime was murder, was proper in presenting defendant’s theory of self-defense and the state’s theory of felony murder. Burns v. State, 228 Miss. 254, 87 So. 2d 681, 1956 Miss. LEXIS 510 (Miss. 1956).

Where it was reported to officers that a man of certain description had attempted to steal an automobile and defendant answered the description and the officers had good ground to believe that a felony had been committed and the defendant was person who committed the crime, and consequently arrested the defendant without warrant and searched him, the evidence obtained incident to the search was admissible in prosecution for murder. Wheeler v. State, 219 Miss. 129, 63 So. 2d 517, 1953 Miss. LEXIS 377 (Miss.), cert. denied, 346 U.S. 852, 74 S. Ct. 67, 98 L. Ed. 367, 1953 U.S. LEXIS 1649 (U.S. 1953).

An indictment charging the defendant with an assault “with the intent and in the attempt to kill and murder,” and the proof in the record charged an offense with intent to kill and murder under Code 1930, § 787 (Code 1942, § 2011), and not an offense under this section [Code 1942, § 2017]. Norwood v. State, 182 Miss. 898, 183 So. 523, 1938 Miss. LEXIS 205 (Miss. 1938).

The distinction between the mere attempt to commit the offense of murder, and the offense with assault with intent to kill and murder, is that in the attempt statute any attempt by overt act to do an act that would, if completed, amount to murder, regardless of the specific intent to kill a specific person, is made out by doing such acts as, if consummated, would amount to murder; such, for instance, as shooting in a public place where there are many people, without specific intent to kill any one of them or to kill anybody; the act being predicated upon recklessness and disregard of social duty, and fatally bent on mischief. Norwood v. State, 182 Miss. 898, 183 So. 523, 1938 Miss. LEXIS 205 (Miss. 1938).

Where defendant attempted to procure R to kill a third party, and in furtherance of the purpose took a gun, loaded it, and started with R to the point where the killing was to occur, but was arrested, the act was an “attempt” within this section [Code 1942, § 2017]. Stokes v. State, 92 Miss. 415, 46 So. 627, 1908 Miss. LEXIS 245 (Miss. 1908).

8. —Sexual offenses.

Trial court did not err in accepting appellant’s guilty plea because the indictment, the prosecutor’s statement, and appellant’s testimony all established a sufficient factual basis for the crimes of kidnapping, armed robbery, and attempted sexual battery; substantial evidence was presented that appellant committed the crimes to which he pleaded guilty. Green v. State, — So.3d —, 2019 Miss. App. LEXIS 73 (Miss. Ct. App. Feb. 19, 2019), cert. denied, 276 So.3d 660, 2019 Miss. LEXIS 298 (Miss. 2019), cert. denied, — U.S. —, 205 L. Ed. 2d 494, 2020 U.S. LEXIS 324 (U.S. 2020).

Trial court did not commit plain error when it gave an instruction on attempted rape because the instruction included the intent to commit the offense of rape, stated the overt acts toward the commission of rape, and dictated that defendant was prevented from consummating the crime of rape; thus, the instruction properly recited the law on attempted rape, and it defined attempt. Scott v. State, 231 So.3d 1024, 2016 Miss. App. LEXIS 404 (Miss. Ct. App. 2016), aff'd, 231 So.3d 995, 2017 Miss. LEXIS 440 (Miss. 2017).

Evidence was sufficient to convict defendant of attempted sexual battery pursuant to Miss. Code Ann. §97-1-7 and Miss. Code Ann. §97-3-95(1)(a) and (d) because, inter alia: (1) there was evidence that defendant intended to penetrate the six-year-old victim’s privates with his privates, which satisfied the definition of penetration under Miss. Code Ann. §97-3-97(a); and (2) at the time of the incident, defendant, who was 18, was more than two years older than the victim. Bracken v. State, 939 So. 2d 826, 2006 Miss. App. LEXIS 742 (Miss. Ct. App. 2006).

Indictment was sufficient to put defendant on notice that he was being charged with attempted rape, and the indictment specifically set forth the conduct which the State planned to use as evidence; defendant failed to complete the crime of rape because he was unable to get an erection, and consequently unable to penetrate the victim’s vagina, so that the record supported a conviction of attempted rape. Purnell v. State, 878 So. 2d 124, 2004 Miss. App. LEXIS 24 (Miss. Ct. App.), cert. denied, 878 So. 2d 67, 2004 Miss. LEXIS 938 (Miss. 2004).

Evidence was sufficient to convict defendant of attempted sexual battery of a female minor where the victim testified that defendant asked her to get into a car with him and to lie down in the back of the car, and asked her if “he was going to get him some sex,” and when they arrived at a hotel room, defendant announced to other men there that the victim was there to have sex with them. Quarles v. State, 863 So. 2d 987, 2004 Miss. App. LEXIS 2 (Miss. Ct. App. 2004).

Evidence was sufficient to prove beyond a reasonable doubt that defendant committed attempted sexual battery, Miss. Code Ann. §97-1-7, because the second victim testified that (1) defendant attempted to engage in sexual penetration with the second victim by trying to insert defendant’s penis into the second victim’s mouth; (2) defendant was 24 or more months older than the second victim; and (3) the second victim was under the age of 14 years. Bell v. State, 835 So. 2d 953, 2003 Miss. App. LEXIS 214 (Miss. Ct. App. 2003).

In a prosecution for attempted rape, the court’s instruction to the jury on attempt was insufficient where it did not mention the requirement that the defendant be found either to have failed or was prevented from completing the act. Armstead v. State, 716 So. 2d 576, 1998 Miss. LEXIS 281 (Miss. 1998).

Instruction on attempted sexual battery that required jury to find, as overt act, defendant’s attempt to place his penis into victim’s anus, in combination with instruction that charged jury that “in order to prove an attempt to commit sexual penetration, the State must prove that the intended act was prevented from taking place by resistance or other means,” fully and correctly charged jury on elements of the crime. Eakes v. State, 665 So. 2d 852, 1995 Miss. LEXIS 555 (Miss. 1995).

Conviction for sexual battery and attempted sexual battery was supported by victim’s testimony that described anal and digital penetration, attempted anal penetration, and attempted cunnilingus, victim’s testimony that defendant had threatened to harm other members of her family if she told anyone about the abuse, corroboration by other witnesses, and evidence that immediately after alleged abuse, victim had been treated for gonorrhea and chlamydia. Eakes v. State, 665 So. 2d 852, 1995 Miss. LEXIS 555 (Miss. 1995).

Trial court acted within its discretion by imposing 2 consecutive 20-year sentences for 2 sexual battery convictions and concurrent 20-year sentence for attempted sexual battery conviction. Eakes v. State, 665 So. 2d 852, 1995 Miss. LEXIS 555 (Miss. 1995).

The elements required to prove attempted capital rape are: (1) a design and endeavor to rape one less than 14 years old by one at least 18 years old, (2) an overt act toward the commission of rape, and (3) failure to complete the rape or prevention of completion. Henderson v. State, 660 So. 2d 220, 1995 Miss. LEXIS 390 (Miss. 1995).

A trial court committed reversible error in failing to adequately instruct the jury on the elements of attempted capital rape where the instructions did not mention the element of failure to complete the rape or prevention of completion. Henderson v. State, 660 So. 2d 220, 1995 Miss. LEXIS 390 (Miss. 1995).

At defendant’s trial for attempted rape, admission, over defense’s objections, of alleged victim’s earring, and of testimony concerning earring, constituted reversible error where earring had not been made available to defense for inspection before trial under motion for discovery. Thomas v. State, 488 So. 2d 1343, 1986 Miss. LEXIS 2475 (Miss. 1986).

Attempted sexual battery is a criminal offense by virtue of Mississippi Code §97-1-7. Gill v. State, 485 So. 2d 1047, 1986 Miss. LEXIS 2378 (Miss. 1986).

Person who attempts to perform anal intercourse on another person but is prevented from doing so when other person flees may be convicted of attempted unnatural intercourse. Haymond v. State, 478 So. 2d 297, 1985 Miss. LEXIS 2269 (Miss. 1985).

In a prosecution for attempted rape of a female child under the age of 12 years, the trial court erred in conducting an in-chambers interrogation of a 9-year-old girl to determine her competency as a witness where defendants and their attorneys had not been informed of the examination and did not learn of it until the prosecution offered the child as a rebuttal witness and where the court had refused to allow this same child to testify in a similar case the previous week. Allen v. State, 384 So. 2d 605, 1980 Miss. LEXIS 2020 (Miss. 1980).

An indictment on the charge of attempted rape, charging that defendant attempted to commit such offense by stalking, chasing and running after the female in question, to the extent of almost exhausting her, in a lonesome and secluded place in the country where no one else was present, was demurrable for failure sufficiently to fix the overt act in connection with the crime charged, since under such indictment defendant’s purpose could have equally been a number of other crimes. State v. Lindsey, 202 Miss. 896, 32 So. 2d 876, 1947 Miss. LEXIS 353 (Miss. 1947).

Sentence of accused after indictment, trial, and conviction under the statute (Code 1942, § 2361) providing for punishment of one convicted of an assault with intent to forcibly ravish any female of previous chaste character, was not improper because accused could have been prosecuted and sentenced under this section [Code 1942, § 2017]. Lee v. State, 201 Miss. 423, 29 So. 2d 211, 1947 Miss. LEXIS 402 (Miss. 1947), rev'd, 332 U.S. 742, 68 S. Ct. 300, 92 L. Ed. 330, 1948 U.S. LEXIS 2619 (U.S. 1948).

Where an indictment charged the defendant with an assault with intent to ravish a female of previous chaste character, of the age of 14 years, and was drawn under Code 1930, § 1125 (Code 1942, § 2361), it was error for the trial court to treat the indictment as if drawn under Code 1930, § 793, the attempt statute. John v. State, 191 Miss. 152, 2 So. 2d 800, 1941 Miss. LEXIS 149 (Miss. 1941).

Refusal of instruction that burden was on state to prove that accused attempted to rape prosecutrix as charged held not error, because covered by instruction given at accused’s request. Barnes v. State, 164 Miss. 126, 143 So. 475 (Miss. 1932).

In prosecution for attempt to rape, testimony respecting isolated act of sexual intercourse by prosecutrix held properly excluded as irrelevant. Barnes v. State, 164 Miss. 126, 143 So. 475 (Miss. 1932).

Permitting witness to testify that soon after alleged attempted rape prosecutrix told witness that accused broke into her house held not reversible error. Barnes v. State, 164 Miss. 126, 143 So. 475 (Miss. 1932).

Corroboration of prosecutrix held not required in prosecution for attempt to rape. Barnes v. State, 164 Miss. 126, 143 So. 475 (Miss. 1932).

Instructions to convict for attempt to rape if jury believed from evidence beyond reasonable doubt that defendant committed act specified in instructions held not erroneous as confusing. Barnes v. State, 164 Miss. 126, 143 So. 475 (Miss. 1932).

9. — —Evidence.

Trial court did not abuse its discretion in denying defendant’s motion for a new trial because the verdict was not contrary to the overwhelming weight of the evidence; the evidence demonstrated that defendant committed the crime of attempted rape because he unlawfully entered the victim’s home, dragged her to her bedroom while making sexual comments, tore at her clothing, and only ceased his attempt to rape the victim in order to obtain money from her. Scott v. State, 231 So.3d 1024, 2016 Miss. App. LEXIS 404 (Miss. Ct. App. 2016), aff'd, 231 So.3d 995, 2017 Miss. LEXIS 440 (Miss. 2017).

Evidence was sufficient to provide the elements of attempted rape because defendant dragged the victim to the bedroom, tore her clothing, and said sexually explicit statements, which demonstrated his intent and constituted an overt act toward the act of rape; defendant only ended his attempt to rape the victim when she told him she would give him money to leave her alone. Scott v. State, 231 So.3d 1024, 2016 Miss. App. LEXIS 404 (Miss. Ct. App. 2016), aff'd, 231 So.3d 995, 2017 Miss. LEXIS 440 (Miss. 2017).

Defendant’s convictions for attempted rape and statutory rape in violation of Miss. Code Ann. §§97-1-7 and97-3-65(1)(b) were proper based on the victim’s testimony and the corroboration of that testimony by defendant’s wife, a physician and a psychologist. Lee v. State, 910 So. 2d 1123, 2005 Miss. App. LEXIS 216 (Miss. Ct. App. 2005).

Supreme Court of Mississippi overrules Gibby v. State and finds that when a defendant makes an overt act and a reasonable person would believe a deadly weapon is present, there is no requirement that the victim has to actually see the deadly weapon in order to convict for attempted armed robbery pursuant to Miss. Code Ann. §97-3-79. Therefore, a victim is not required to have “definite knowledge” of a deadly weapon in the sense that the weapon must actually be seen by the victim’s own eyes. Dambrell v. State, 903 So. 2d 681, 2005 Miss. LEXIS 144 (Miss. 2005).

Court of appelas erred in reversing defendant’s conviction for armed robbery where although the cashier did not actually see the butcher knife before defendant fled, clearly, defendant intended to rob the store, had a deadly weapon, threw down the towel and knife that was in his possession and was only thwarted in his attempt to rob the store. The cashier gained possession of the knife once defendant discarded it and thus, it was clear that defendant had a weapon on entering the store. Dambrell v. State, 903 So. 2d 681, 2005 Miss. LEXIS 144 (Miss. 2005).

While the Mississippi attempt statute requires that the third element of attempted rape, failure to consummate, result from extraneous causes and not a voluntary cessation, the extraneous cause was met by the struggle over a gun between the defendant and the victim, the shooting of the victim, and the resulting death of the victim. Powers v. State, 883 So. 2d 20, 2003 Miss. LEXIS 850 (Miss. 2003), cert. denied, 543 U.S. 1155, 125 S. Ct. 1297, 161 L. Ed. 2d 121, 2005 U.S. LEXIS 1584 (U.S. 2005).

Evidence was sufficient to prove beyond a reasonable doubt that defendant committed attempted sexual battery, Miss. Code Ann. §97-1-7, because the second victim testified that (1) defendant attempted to engage in sexual penetration with the second victim by trying to insert defendant’s penis into the second victim’s mouth; (2) defendant was 24 or more months older than the second victim; and (3) the second victim was under the age of 14 years. Bell v. State, 835 So. 2d 953, 2003 Miss. App. LEXIS 214 (Miss. Ct. App. 2003).

Evidence was sufficient to establish attempted sexual battery where (1) the nine-year-old victim was in a check-out line at a store with his mother when the mother sent him back to the appropriate aisle to get a box of cereal, (2) once the victim got to that aisle, the defendant approached him and asked, using the vernacular, if he could engage in fellatio on the victim, (3) simultaneously with the verbal request, the defendant pointed to his own genitals, (4) the victim refused, and the encounter ended, and (5) the defendant never touched the victim or made any effort to restrain him. Ishee v. State, 2000 Miss. App. LEXIS 412 (Miss. Ct. App. Aug. 29, 2000).

A defendant’s grabbing of the victim by the throat, threatening to beat her up if she did not remove her clothes, and announcing his intent to rape her, constituted an “overt act” for attempted rape. Pruitt v. State, 528 So. 2d 828, 1988 Miss. LEXIS 339 (Miss. 1988).

In a juvenile delinquency proceeding, evidence that the juvenile had a medium-sized pocketknife, forcibly took the victim behind a woodpile in the backyard, pushed her to the ground, and then voluntarily stopped the assault was insufficient to support a finding of guilty of attempted rape. In Interest of R.T., 520 So. 2d 136, 1988 Miss. LEXIS 124 (Miss. 1988).

Lewd suggestion to victim coupled with physically grabbing victim and attempting to carry her away only to have her break free comes near enough to accomplishment of rape as to constitute crime of attempted rape. Harden v. State, 465 So. 2d 321, 1985 Miss. LEXIS 1959 (Miss. 1985).

Undisputed evidence that defendant propositioned victim in lewd manner, exposed himself, seized victim and attempted to drag her away with him, and that lack of success in defendant’s attempt to rape victim resulted from victim’s resistance, not defendant’s abandonment of crime, is sufficient to support conviction for attempted rape. Harden v. State, 465 So. 2d 321, 1985 Miss. LEXIS 1959 (Miss. 1985).

In a prosecution for attempted sexual battery in violation of §97-3-95, evidence was insufficient to sustain a conviction under this section, where the uncontradicted facts indicated that there was no penetration, as defined by §97-3-97, the prosecution conceded that there was no attempt to penetrate, the defendant had every opportunity to penetrate if he had wished to do so, and his failure was not the product of his victim’s admittedly ineffective resistance or the intervention of extraneous causes. West v. State, 437 So. 2d 1212, 1983 Miss. LEXIS 2924 (Miss. 1983).

Evidence, including positive identification of the accused by two residents of the dwelling, was sufficient to sustain a conviction of burglariously breaking and entering a dwelling house with the intent to commit rape. McDole v. State, 229 Miss. 646, 91 So. 2d 738, 1957 Miss. LEXIS 308 (Miss. 1957).

10. — Miscellaneous.

Evidence was sufficient to support defendant’s attempted kidnapping conviction because it showed that defendant entered the victim’s bedroom, demanded she leave with him, struck her when she refused, and while she was unconscious defendant stole no items from the room. Sullivan v. State, 281 So.3d 1146, 2019 Miss. App. LEXIS 267 (Miss. Ct. App. 2019).

Evidence supported defendant’s conviction for attempting to leave the scene of an accident that resulted in an injury because defendant tried to open the door to a car and get in the car after wrecking a car which defendant had taken in a carjacking. The jury was free to infer that defendant did so with the intent to steal the car and then flee the scene of an auto accident in which another motorist was severely injured, but was frustrated by a locked car door or defendant’s own physical condition, not a voluntary abandonment of purpose. Moffett v. State, — So.3d —, 2019 Miss. App. LEXIS 549 (Miss. Ct. App. Nov. 12, 2019).

Trial judge’s decision that a photograph’s content was not too remote in time to be relevant and that the danger of unfair prejudice did not substantially outweigh that probative value was not an abuse of discretion because it was within the trial judge’s discretion to determine that the photograph of handcuffs in defendant’s car was relevant, even though it was taken more than two months after the alleged attempted kidnapping; the presence of the handcuffs in defendant’s car was offered to show that on his trips to “look for women,” defendant was not looking for consensual relationships, and the presence of handcuffs made it more probable that defendant grabbed the victim with the intent to kidnap her. Tucker v. State, 64 So.3d 594, 2011 Miss. App. LEXIS 324 (Miss. Ct. App. 2011).

Defendant’s conviction for aggravated assault was appropriate even though there was no direct proof that defendant intended to cause serious bodily injury to the victim because the existence of such intent could have been logically deduced from the victim’s testimony that he feared for his own safety, along with other testimony that defendant appeared to have come straight at the victim with his vehicle. Commodore v. State, 994 So. 2d 864, 2008 Miss. App. LEXIS 658 (Miss. Ct. App. 2008).

Defendant’s conviction for attempted kidnapping in violation of Miss. Code Ann. §97-3-53 and Miss. Code Ann. §97-1-7 was proper where the evidence was sufficient to support the conviction. The evidence established that, among other things, defendant chased the victim down the street and grabbed her. Carter v. State, 932 So. 2d 850, 2006 Miss. App. LEXIS 77 (Miss. Ct. App.), cert. denied, 933 So. 2d 303, 2006 Miss. LEXIS 496 (Miss. 2006).

Defendants’ convictions for armed robbery were proper where, at trial, the defense presented no credible evidence tending to demonstrate the innocence of defendants nor a reasonable explanation for their actions; further, the testimony concerning the manner in which defendants entered the room, their subsequent conduct, the fact that they fled and resisted arrest, and that a reasonably supported inference existed that there was an attempt to take one of the victim’s watch all sustained a finding by a reasonable minded jury that defendants committed armed robbery. Broomfield v. State, 2003 Miss. App. LEXIS 914 (Miss. Ct. App. Oct. 7, 2003), op. withdrawn, sub. op., 878 So. 2d 207, 2004 Miss. App. LEXIS 1182 (Miss. Ct. App. 2004).

Although defendant received the maximum sentence on both counts of attempted robbery, there was no evidence that improper consideration infected the court’s decision, or that the maximum sentences were given in retribution for defendant’s physical outbursts at sentencing. Bolton v. State, 752 So. 2d 480, 1999 Miss. App. LEXIS 701 (Miss. Ct. App. 1999).

Attempted suicide is unlawful under the statute making criminal attempts unlawful. Nicholson ex rel. Gollott v. State, 672 So. 2d 744, 1996 Miss. LEXIS 146 (Miss. 1996).

Defense of accident to homicide charge was inapplicable if defendant, as he alleged, fatally shot victim while attempting to commit suicide, an unlawful act, and thus defendant was not entitled to requested instruction on accident. Nicholson ex rel. Gollott v. State, 672 So. 2d 744, 1996 Miss. LEXIS 146 (Miss. 1996).

The crime of attempted robbery is a crime of violence within the meaning of §99-19-83. Ashley v. State, 538 So. 2d 1181, 1989 Miss. LEXIS 24 (Miss. 1989).

Evidence was sufficient to sustain conviction for attempted kidnapping where defendant had taken part in attempted kidnapping after failing to follow through with plan to rob grocery store, despite defendant’s contention that he took no part in plan or effort to rob or kidnap grocery store customer. Jenkins v. State, 507 So. 2d 89, 1987 Miss. LEXIS 2505 (Miss. 1987).

Notwithstanding that the state failed to prove that a deadly weapon was displayed at the time motel operator was sprayed with mace, defendant’s conviction of an attempt to commit armed robbery of the motel operator was supported by evidence showing that defendant, along with others, planned the armed robbery, armed and transported themselves to the motel site, with the defendant and another hidden in the back seat of the automobile used in the commission of the crime, and by shooting at the motel operator to effectuate and escape. Edwards v. State, 500 So. 2d 967, 1986 Miss. LEXIS 2775 (Miss. 1986).

Photographs of injuries of child are admissible, in prosecution of parent for attempted child abuse, on issue of whether fall resulting in injuries was accidental or result of parent’s deliberate act. Watson v. State, 483 So. 2d 1326, 1986 Miss. LEXIS 2366 (Miss. 1986).

Defendant’s statement to associate to tell juror who had been summoned to hear defendant’s upcoming murder trial “there might be a reward in the future,” followed by associate’s refusal to convey the offer and actual failure to make such effort was not an overt act as required by Code 1942 § 2017, and conviction of attempting to make and offer a reward or gratuity to a juror, with the intent to influence the juror’s verdict, would be reversed. Smith v. State, 279 So. 2d 652, 1973 Miss. LEXIS 1491 (Miss. 1973).

Undisputed showing that the defendant used some force and a great deal of persuasion and maneuvering to get a nine-year-old female child to go with him, and persisted in his efforts to the extent of taking the child about two blocks in one direction from the place from where she had wanted to go, and then, when she had got away from him, he pursued her until she arrived at the door of the place where her mother was, was sufficient to sustain the charge of attempted kidnaping. McGuire v. State, 231 Miss. 375, 95 So. 2d 537, 1957 Miss. LEXIS 522 (Miss. 1957).

Upon conviction of restaurant proprietor of attempt to sell diseased flesh of an animal for human consumption, under indictment bringing offense either under Code 1942, § 2336 or § 2338, but specifically referring to neither section, nor charging that defendant was a butcher or that his occupation might be classified as that of a butcher, sentence should be that imposed by § 2338, under the rule that when the facts which constitute a criminal offense may fall under either of two sections, or when there is substantial doubt as to which of the two is to be applied, the case will be referred to the statute which imposes the lesser punishment, having regard for the rule that under the attempt statute no greater punishment may be administered than that prescribed for the actual commission of the offense attempted. Grillis v. State, 196 Miss. 576, 17 So. 2d 525, 1944 Miss. LEXIS 237 (Miss. 1944).

Firing into house in nighttime with knowledge that house was occupied and that persons were sleeping therein was done in commission of act evincing a reckless disregard for human life, and with intent to injure some person therein, and town marshal living in house had such probable cause to believe that person firing gun had committed felony as would warrant marshal in arresting person without warrant. Lee v. State, 179 Miss. 122, 174 So. 85, 1937 Miss. LEXIS 14 (Miss. 1937).

Penalty for attempt to escape from county jail limited to year’s imprisonment; every person lawfully imprisoned. Floyd v. State, 140 Miss. 884, 105 So. 765, 1925 Miss. LEXIS 319 (Miss. 1925).

Verdict that defendant was preparing to make liquor not sufficient for conviction for attempt. Wiggington v. State, 136 Miss. 825, 101 So. 856, 1924 Miss. LEXIS 187 (Miss. 1924).

11. Sentence.

Attempted-murder statute does not violate the Eight Amendment; the difference in sentencing between the attempted-murder statute and the attempted aggravated assault statute does not violate the Eighth Amendment. Pickett v. State, 252 So.3d 40, 2018 Miss. App. LEXIS 54 (Miss. Ct. App.), cert. denied, 250 So.3d 1271, 2018 Miss. LEXIS 374 (Miss. 2018), cert. denied, — So.3d —, 2018 Miss. LEXIS 376 (Miss. 2018).

In a case where defendant was sentenced to eight years in prison with five years of post-release supervision after a guilty plea was entered to the crime of attempted burglary of a dwelling, a post-conviction relief motion was properly dismissed without an evidentiary hearing under Miss. Code Ann. §99-39-11(2) because there was no ineffective assistance of counsel where jurisdiction was included in an indictment, the charges were not contradictory, an attempt charge was appropriate, and appellant inmate’s other self-serving arguments were wholly unsupported by the record. Moreover, a sentence was not illegal since a suspended sentence was not required in addition to post-release supervision, the sentence imposed was within the range permitted, and the inmate was not misinformed regarding his appellate rights. McKinney v. State, 7 So.3d 291, 2008 Miss. App. LEXIS 626 (Miss. Ct. App. 2008).

Appellate court affirmed the denial of an inmate’s motion for post-conviction relief on the grounds that her sentences were excessive as the sentences imposed for her conviction for Miss. Code Ann. §97-1-7 were within the statutory range. Lee v. State, 918 So. 2d 87, 2006 Miss. App. LEXIS 23 (Miss. Ct. App. 2006).

The defendant was properly sentenced to 30 years’ imprisonment for attempted sexual battery, which is a noncapital crime, notwithstanding that the statute permits a maximum 10 years’ imprisonment for an attempted capital crime. Ishee v. State, 2000 Miss. App. LEXIS 412 (Miss. Ct. App. Aug. 29, 2000).

12. Instructions

Jury instructions accurately followed the requisite elements of attempted murder by charging that defendant had to have (1) intended to murder the victim, (2) attempted to murder the victim, and (3) failed to actually kill the victim. Morton v. State, 246 So.3d 895, 2017 Miss. App. LEXIS 649 (Miss. Ct. App. 2017), cert. denied, 246 So.3d 886, 2018 Miss. LEXIS 295 (Miss. 2018).

RESEARCH REFERENCES

ALR.

Pregnancy as element of abortion or homicide based thereon. 46 A.L.R.2d 1393.

Conviction or acquittal of attempt to commit particular crime as bar to prosecution for conspiracy to commit same crime, or vice versa. 53 A.L.R.2d 622.

Attempt to commit assault as criminal offense. 79 A.L.R.2d 597.

Attempts to receive stolen property. 85 A.L.R.2d 259.

Attempts to commit offenses of larceny by trick, confidence game, false pretenses, and the like. 6 A.L.R.3d 241.

Impossibility of consummation of substantive crime as defense in criminal prosecution for conspiracy or attempt to commit crime. 37 A.L.R.3d 375.

What constitutes attempted murder. 54 A.L.R.3d 612.

What conduct amounts to an overt act or acts done toward commission of larceny so as to sustain charge of attempt to commit larceny. 76 A.L.R.3d 842.

Construction and application of state statute governing impossibility of consummation as defense to prosecution for attempt to commit crime. 41 A.L.R.4th 588.

Attempt to commit assault as criminal offense. 93 A.L.R.5th 683.

Am. Jur.

21 Am. Jur. 2d, Criminal Law §§ 154 et seq.

8 Am. Jur. Proof of Facts 2d, Withdrawal from or Abandonment of Criminal Enterprise, §§ 6 et seq. (proof of defendant’s withdrawal from and abandonment of criminal enterprise).

CJS.

22 C.J.S., Criminal Law §§ 114, 116-123.

Practice References.

Ronald L. Schoenberg, Criminal Law Deskbook (Matthew Bender).

§ 97-1-9. Attempt to commit offense; no conviction if offense completed.

A person shall not be convicted of an assault with intent to commit a crime, or of any other attempt to commit an offense, when it shall appear that the crime intended or the offense attempted was perpetrated by such person at the time of such assault or in pursuance of such attempt.

HISTORY: Codes, 1857, ch. 64, art. 19; 1880, § 2712; 1892, § 974; 1906, § 1050; Hemingway’s 1917, § 778; 1930, § 794; 1942, § 2018.

JUDICIAL DECISIONS

1. In general.

2. Particular offenses.

1. In general.

Where the State’s proof of penetration was insufficient for a sexual battery charge because the victim was severely retarded and unable to communicate by anything other than grunting or squealing sounds, it was not prohibited from charging defendant with attempt, as the State’s proof of a completed penetration was not more persuasive than an objective analysis showed it to be. Thomas v. State, 824 So. 2d 648, 2002 Miss. App. LEXIS 457 (Miss. Ct. App. 2002).

Statute is inapplicable where it is doubtful that offense attempted was completed by accused, and state may in such case elect to prosecute for the attempt. Holley v. State, 175 Miss. 347, 166 So. 924, 1936 Miss. LEXIS 47 (Miss. 1936).

Where crime was actually committed prosecution for an attempt is not proper. Davis v. State, 89 Miss. 21, 42 So. 542, 1906 Miss. LEXIS 52 (Miss. 1906).

2. Particular offenses.

Where defendant was indicted for attempting to burglar a dwelling house, the trial court committed reversible error by allowing the State to amend the indictment to change the charge from “attempt to break and enter” to “break and enter.” Defendant was clearly prejudiced because the defense that he had actually completed the crime was no longer available to him. Spears v. State, 942 So. 2d 812, 2005 Miss. App. LEXIS 735 (Miss. Ct. App. 2005), rev'd, 942 So. 2d 772, 2006 Miss. LEXIS 656 (Miss. 2006).

Where the evidence positively established the completed act of sexual intercourse, it was error to prosecute and convict the appellant of assault with intent to ravish. Young v. State, 317 So. 2d 402, 1975 Miss. LEXIS 1752 (Miss. 1975).

Failure to consummate the crime of robbery is an essential element of proof in a prosecution under an indictment charging assault and battery with intent to rob. Thompson v. State, 226 Miss. 93, 83 So. 2d 761, 1955 Miss. LEXIS 611 (Miss. 1955).

If there had been doubt whether a crime of robbery was completed the state could have elected to prosecute for assault and battery with intent to rob, but this section [Code 1942, § 2018] does not cover a case wherein it is doubtful that the offense attempted was actually completed by the accused. Thompson v. State, 226 Miss. 93, 83 So. 2d 761, 1955 Miss. LEXIS 611 (Miss. 1955).

Where defendant had been indicted, tried and convicted of a crime of assault and battery with intent to rob and the proof showed that the defendant actually completed the robbery, conviction would be reversed and the defendant held for further grand jury action. Thompson v. State, 226 Miss. 93, 83 So. 2d 761, 1955 Miss. LEXIS 611 (Miss. 1955).

Conviction for attempted robbery of defendant indicted on charge of attempted burglary would be reversed, where proof introduced by state showed that offense was completed, since prosecution for attempt is improper under statute where crime is actually committed. Williams v. State, 178 Miss. 899, 174 So. 47, 1937 Miss. LEXIS 240 (Miss. 1937).

Where deceased was killed by shot fired by third party after defendant had fractured deceased’s skull and there was no evidence that fracture would have caused death, defendant could be prosecuted for assault with intent to kill. Holley v. State, 175 Miss. 347, 166 So. 924, 1936 Miss. LEXIS 47 (Miss. 1936).

This section [Code 1942, § 2018] applied to crime of forgery, it being held there could be no conviction for forgery under the facts of the case. Wilson v. State, 85 Miss. 687, 38 So. 46, 1904 Miss. LEXIS 185 (Miss. 1904).

RESEARCH REFERENCES

ALR.

Construction and application of state statute governing impossibility of consummation as defense to prosecution for attempt to commit crime. 41 A.L.R.4th 588.

Am. Jur.

21 Am. Jur. 2d, Criminal Law §§ 154 et seq.

CJS.

22 C.J.S., Criminal Law §§ 148, 150-158.

Practice References.

Ronald L. Schoenberg, Criminal Law Deskbook (Matthew Bender).

Chapter 3. Crimes Against the Person

§ 97-3-1. Abduction for purposes of marriage.

Every person who shall take any person over the age of fourteen (14) years unlawfully, against his or her will, and by force, menace, fraud, deceit, stratagem or duress, compel or induce him or her to marry such person or to marry any other person, or to be defiled, and shall be thereof duly convicted, shall be punished by imprisonment in the penitentiary not less than five (5) years and not more than fifteen (15) years.

HISTORY: Codes, Hutchinson’s 1848, ch. 64, art. 12, Title 3 (24); 1857, ch. 64, art. 1; 1871, § 2483; 1880, § 2697; 1892, § 949; 1906, § 1025; Hemingway’s 1917, § 750; 1930, § 768; 1942, § 1994; Laws, 1980, ch. 356, eff from and after passage (approved April 23, 1980).

Cross References —

Statute of frauds as applicable to marriage contracts, see §15-3-1.

Penal offenses which are crimes against municipalities, see §21-13-19.

Kidnapping, see §§97-3-51,97-3-53.

Statutory rape, see §§97-3-65 et seq.

Seduction of female child, see §§97-3-65,97-3-95,97-3-101,97-5-23, and97-29-55.

Enticing children for prostitution or marriage, see §97-5-5.

Enticing children for employment, see §97-5-7.

JUDICIAL DECISIONS

1. In general.

Evidence that defendants who unlawfully took female over age 14, against her will, to another city, so that one of defendants, or some other person, might have sexual intercourse with her, did not intend to bring such sexual intercourse about by force, menace, fraud, deceit, stratagem, or duress, did not warrant conviction of defendants for unlawfully forcing female over age of 14 to be defiled against her will. Tyler v. State, 178 Miss. 340, 173 So. 413, 1937 Miss. LEXIS 219 (Miss. 1937).

To constitute abduction the female must have been taken unlawfully against her will and by force, fraud, deceit, stratagem or duress have been compelled or induced to be defiled. Lampton v. State, 11 So. 656 (Miss. 1892).

RESEARCH REFERENCES

ALR.

Kidnapping by fraud or false pretenses. 95 A.L.R.2d 450.

Am. Jur.

1 Am. Jur. 2d, Abduction and Kidnapping §§ 1, 2.

10 Am. Jur. Pl & Pr Forms (Rev), False Imprisonment, Form 1.1 (complaint, petition, or declaration-false imprisonment imposed by private individual-sexual assault).

45 Am. Jur. Proof of Facts 2d 631, Age of Person.

§ 97-3-2. Crimes of violence defined.

  1. The following shall be classified as crimes of violence:
    1. Driving under the influence as provided in Sections 63-11-30(5) and 63-11-30(12) (d);
    2. Murder and attempted murder as provided in Sections 97-1-7(2), 97-3-19, 97-3-23 and 97-3-25;
    3. Aggravated assault as provided in Sections 97-3-7(2) (a) and (b) and 97-3-7(4) (a);
    4. Manslaughter as provided in Sections 97-3-27, 97-3-29, 97-3-31, 97-3-33, 97-3-35, 97-3-39, 97-3-41, 97-3-43, 97-3-45 and 97-3-47;
    5. Killing of an unborn child as provided in Sections 97-3-37(2) (a) and 97-3-37(2) (b);
    6. Kidnapping as provided in Section 97-3-53;
    7. Human trafficking as provided in Section 97-3-54.1;
    8. Poisoning as provided in Section 97-3-61;
    9. Rape as provided in Sections 97-3-65 and 97-3-71;
    10. Robbery as provided in Sections 97-3-73 and 97-3-79;
    11. Sexual battery as provided in Section 97-3-95;
    12. Drive-by shooting or bombing as provided in Section 97-3-109;
    13. Carjacking as provided in Section 97-3-117;
    14. Felonious neglect, abuse or battery of a child as provided in Section 97-5-39;
    15. Burglary of a dwelling as provided in Sections 97-17-23 and 97-17-37;
    16. Use of explosives or weapons of mass destruction as provided in Section 97-37-25;
    17. Statutory rape as provided in Section 97-3-65(1), but this classification is rebuttable on hearing by a judge;
    18. Exploitation of a child as provided in Section 97-5-33;
    19. Gratification of lust as provided in Section 97-5-23; and
    20. Shooting into a dwelling as provided in Section 97-37-29.
  2. In any felony offense with a maximum sentence of no less than five (5) years, upon conviction, the judge may find and place in the sentencing order, on the record in open court, that the offense, while not listed in subsection (1) of this section, shall be classified as a crime of violence if the facts show that the defendant used physical force, or made a credible attempt or threat of physical force against another person as part of the criminal act. No person convicted of a crime of violence listed in this section is eligible for parole or for early release from the custody of the Department of Corrections until the person has served at least fifty percent (50%) of the sentence imposed by the court.

HISTORY: Laws, 2014, ch. 457, § 39, eff from and after July 1, 2014.

JUDICIAL DECISIONS

1. In general.

2. Ex post facto.

3. Constitutionality.

1. In general.

Trial court did not err by finding defendant’s burglary was a crime of violence because that did not violate defendant’s constitutional rights to due process, trial by an impartial jury, or a jury finding guilt on all elements of the offense beyond a reasonable doubt; the statute is an enhancement that deals solely with parole eligibility and early release. Bowman v. State, 283 So.3d 154, 2019 Miss. LEXIS 359 (Miss. 2019).

Because burglary of a dwelling house was an enumerated crime of violence, defendant could not serve half of his ten-year sentence before being eligible for parole as the trial court believed, but instead, defendant would have to serve the entirety of his ten-year sentence; the trial court was under the erroneous impression that 50 percent parole eligibility applied to all of the statute, including the crimes enumerated in subsection (1). Bowman v. State, 283 So.3d 154, 2019 Miss. LEXIS 359 (Miss. 2019).

Defendant was properly sentenced as a violent habitual offender because, before defendant committed defendant’s latest crime, defendant’s prior conviction for burglary of a dwelling was classified as a crime of violence. Miller v. State, 225 So.3d 12, 2017 Miss. App. LEXIS 246 (Miss. Ct. App. 2017).

Circuit court properly sentenced defendant to twenty years with five years suspended, followed by five years of post-release supervision, because it did not exceed the statutory maximum for aggravated assault, and the sentence was not grossly disproportionate to defendant’s crime. Darnell v. State, 202 So.3d 281, 2016 Miss. App. LEXIS 565 (Miss. Ct. App. 2016).

2. Ex post facto.

Defendant’s habitual-offender sentence was proper because (1) defendant’s sentence for a prior burglary committed before burglary was determined to be a crime of violence was not enhanced, as only defendant’s sentence for a current crime was increased, and (2) sufficient testimony established defendant had previously served more than one year in prison. Moffite v. State, — So.3d —, 2019 Miss. App. LEXIS 581 (Miss. Ct. App. Dec. 3, 2019).

Defendant’s enhanced sentence as a violent habitual offender based, in part, on a statute classifying defendant’s prior burglary of a dwelling conviction as a violent crime that was enacted after defendant committed that crime, was not an ex post facto violation because the sentence was imposed for defendant’s latest crime, which was aggravated due to being repetitive. Miller v. State, 225 So.3d 12, 2017 Miss. App. LEXIS 246 (Miss. Ct. App. 2017).

3. Constitutionality.

Circuit judge erred in classifying defendant’s offense as a “crime of violence” because the judge’s finding that defendant used, attempted to use, or threatened to use physical force increased the minimum sentence that he had to serve and indisputably altered the prescribed range of sentences to which he was exposed, it eliminated defendant’s eligibility for parole and made him ineligible for any type of early release until he had served at least half of his sentence, aggravated the punishment based on judicial fact-finding and Miss. Code Ann. §97-3-2(2) violated defendant’s rights under the Sixth and Fourteenth Amendments to the extent that it permitted the circuit judge to find that an unlisted felony was a “crime of violence.” Fogleman v. State, 276 So.3d 1213, 2018 Miss. App. LEXIS 460 (Miss. Ct. App. 2018), rev'd, 283 So.3d 685, 2019 Miss. LEXIS 303 (Miss. 2019).

§ 97-3-3. Abortion; causing abortion or miscarriage.

  1. Any person wilfully and knowingly causing, by means of any instrument, medicine, drug or other means whatever, any woman pregnant with child to abort or miscarry, or attempts to procure or produce an abortion or miscarriage shall be guilty of a felony unless the same were done by a duly licensed, practicing physician:
    1. Where necessary for the preservation of the mother’s life;
    2. Where pregnancy was caused by rape.

      Said person shall, upon conviction, be imprisoned in the State Penitentiary not less than one (1) year nor more than ten (10) years; provided, however, if the death of the mother results therefrom, the person procuring, causing or attempting to procure or cause the illegal abortion or miscarriage shall be guilty of murder.

  2. No act prohibited in subsection (1) of this section shall be considered exempt under the provisions of subparagraph (a) thereof unless performed upon the prior advice in writing, of two (2) reputable licensed physicians.
  3. The license of any physician or nurse shall be automatically revoked upon conviction under the provisions of this section.
  4. Nothing in this section shall be construed as conflicting with Section 41-41-73.

HISTORY: Codes, 1942, § 2223; Laws, 1952, ch. 260, §§ 1-3; Laws, 1966, ch. 358, § 1; Laws, 1997, ch. 350, § 3, eff from and after July 1, 1997.

Editor’s Notes —

Laws of 1997, ch. 350, § 4, provides as follows:

“SECTION 4. If any provision, word, phrase or clause of this act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect the provisions, words, phrases, clauses or applications of this act that can be given effect without the invalid provision, word, phrase, clause or application and to this end, the provisions, words, phrases and clauses of this act are declared to be severable.”

Cross References —

Penalty for murder, see §97-3-21.

JUDICIAL DECISIONS

I. UNDER CURRENT LAW.

1. Validity.

2. Construction and application.

3.-10. [Reserved for future use.]

II. UNDER FORMER LAW.

11. In general.

I. UNDER CURRENT LAW.

1. Validity.

State’s interest in protecting medical standards within its borders was sufficient to support criminal prosecution of non-physicians who perform abortions. Spears v. Circuit Court, Ninth Judicial Dist., 517 F.2d 360, 1975 U.S. App. LEXIS 13189 (5th Cir. Miss. 1975).

Section 1 of this act, as construed by the Mississippi Supreme Court in Spears v. State, 278 So. 2d 443, is not unconstitutionally overbroad, vague, or indefinite. Spears v. Ellis, 386 F. Supp. 653, 1974 U.S. Dist. LEXIS 7449 (S.D. Miss. 1974), aff'd, 423 U.S. 802, 96 S. Ct. 9, 46 L. Ed. 2d 23, 1975 U.S. LEXIS 2208 (U.S. 1975).

Section (1) of Code 1942, § 2223 is constitutional with the exception of subsections (a) and (b). Spears v. State, 278 So. 2d 443, 1973 Miss. LEXIS 1444 (Miss. 1973).

Code 1942, § 2223 as amended by Ch. 260, Laws of 1952, making the death of the mother resulting from an illegal abortion a murder is not violative of § 61 of the Mississippi Constitution for omitting to insert the provisions of Code 1942, §§ 2221, 2220, 2215 at length in the amendatory act, for the statute enacted by Ch. 260, Laws of 1952 is complete within itself, required no mention of the manslaughter statutes under which previous prosecution was maintained for the death of a mother as a result of an abortion, and such sections were amended by implication. McCaskill v. State, 227 So. 2d 847, 1969 Miss. LEXIS 1374 (Miss. 1969).

2. Construction and application.

The state may not restrict the decision of a pregnant woman and her physician regarding abortion during the first stage of pregnancy. Planned Parenthood v. Danforth, 428 U.S. 52, 96 S. Ct. 2831, 49 L. Ed. 2d 788, 1976 U.S. LEXIS 13 (U.S. 1976).

The art of midwifery does not include the performance of abortions. Spears v. Circuit Court, Ninth Judicial Dist., 517 F.2d 360, 1975 U.S. App. LEXIS 13189 (5th Cir. Miss. 1975).

A state may not require that abortions, prior to the end of the first trimester, be performed only in hospitals. Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201, 1973 U.S. LEXIS 112 (U.S. 1973).

Prior to the end of the first trimester of pregnancy, an attending physician, in consultation with his patient, is free to determine, without regulation by the state, that in his medical judgment, the patient’s pregnancy should be terminated, and if such a decision is reached, the physician’s judgment may be effectuated by an abortion free of interference by the state. Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147, 1973 U.S. LEXIS 159 (U.S. 1973), overruled in part, Planned Parenthood v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674, 1992 U.S. LEXIS 4751 (U.S. 1992).

From and after the end of the first trimester of pregnancy, a state may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147, 1973 U.S. LEXIS 159 (U.S. 1973), overruled in part, Planned Parenthood v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674, 1992 U.S. LEXIS 4751 (U.S. 1992).

State regulation protective of fetal life after viability has both logical and biological justifications, and if a state is interested in protecting fetal life after viability, it may proscribe abortion during that period except when it is necessary to preserve the life or health of the mother. Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147, 1973 U.S. LEXIS 159 (U.S. 1973), overruled in part, Planned Parenthood v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674, 1992 U.S. LEXIS 4751 (U.S. 1992).

Where conviction was based on § (1) of Code 1942, § 223 which prohibits all abortions unless performed by a duly licensed, practicing physician, an abortion performed by a nonphysician was a violation of this section. Spears v. State, 278 So. 2d 443, 1973 Miss. LEXIS 1444 (Miss. 1973).

In a prosecution for attempted criminal abortion, where the female on whom the abortion was allegedly attempted was a hostile witness for the state, the state was entitled to prove that the witness had made prior inconsistent statements for the purpose of impeaching or discrediting her testimony, but such extra-judicial statements were not competent as substantial evidence of the facts to which they related. Hall v. State, 250 Miss. 253, 165 So. 2d 345, 1964 Miss. LEXIS 461 (Miss. 1964).

Where, in a prosecution for attempted criminal abortion, the accused was the only witness who testified on his behalf as to the facts and circumstances of the alleged crime, it was reversible error for the trial court to give an instruction which, in effect, authorized the jury to throw aside the accused’s testimony as being unworthy of belief because of the strong temptation on his part to swear falsely. Hall v. State, 250 Miss. 253, 165 So. 2d 345, 1964 Miss. LEXIS 461 (Miss. 1964).

In a prosecution for attempted criminal abortion, the trial judge erred in giving an instruction which might have given the jury the impression that, in making up their verdict, they were not to take into consideration the burden of proof and the presumption of innocence. Hall v. State, 250 Miss. 253, 165 So. 2d 345, 1964 Miss. LEXIS 461 (Miss. 1964).

An indictment which charges all elements of the crime, including an averment that the abortion was not necessary for the preservation of the life of the mother, is not insufficient in omitting to add “upon the prior advice, in writing, of two reputable licensed physicians.” Phillips v. State, 239 Miss. 399, 123 So. 2d 449, 1960 Miss. LEXIS 298 (Miss. 1960).

A defendant may not object to the admission of a confession of an abortion because of a deletion therefrom of admissions of the performance of other abortions. Phillips v. State, 239 Miss. 399, 123 So. 2d 449, 1960 Miss. LEXIS 298 (Miss. 1960).

In a prosecution under this section [Code 1942, § 2223] defendant has no right to cross-examine the prosecutrix as to the paternity of the child. Phillips v. State, 239 Miss. 399, 123 So. 2d 449, 1960 Miss. LEXIS 298 (Miss. 1960).

3.-10. [Reserved for future use.]

II. UNDER FORMER LAW.

11. In general.

Accused’s guilt was for the jury in manslaughter prosecution for death of woman who died as a result of injuries inflicted by someone in attempting to produce an abortion, notwithstanding that injuries were inflicted in an inexcusably crude manner and the accused apparently was a physician or surgeon who had been practicing his profession for more than thirty-five years. Johnson v. State, 23 So. 2d 499 (Miss. 1945).

Indictment did not charge offense where it did not charge destruction was not advised by physician. Ladnier v. State, 155 Miss. 348, 124 So. 432, 1929 Miss. LEXIS 299 (Miss. 1929).

Where accused performed an operation on a pregnant woman to procure a miscarriage, and the woman died in consequence thereof, he was guilty of manslaughter. State v. Proctor, 102 Miss. 792, 59 So. 890, 1912 Miss. LEXIS 123 (Miss. 1912).

An infant in the mother’s womb was not a human being at common law and hence the use by a pregnant woman of substances or instruments to kill such a child is not within this section. [Code 1942, § 2223]. State v. Prude, 76 Miss. 543, 24 So. 871, 1898 Miss. LEXIS 104 (Miss. 1898).

RESEARCH REFERENCES

ALR.

Admissibility, in prosecution based on abortion, of evidence of commission of similar crimes by accused. 15 A.L.R.2d 1080.

Necessity, to warrant conviction of abortion, that fetus be living at time of commission of acts. 16 A.L.R.2d 949.

Pregnancy as element of abortion or homicide based thereon. 46 A.L.R.2d 1393.

Right of action for injury to or death of woman who consented to illegal abortion. 36 A.L.R.3d 630.

Right of minor to have abortion performed without parental consent. 42 A.L.R.3d 1406.

Woman’s right to have abortion without consent of, or against objections of, child’s father. 62 A.L.R.3d 1097.

Medical malpractice in performance of legal abortion. 69 A.L.R.4th 875.

Am. Jur.

1 Am. Jur. 2d, Abortion and Birth Control §§ 1, 116, 117.

40 Am. Jur. 2d, Homicide §§ 8, 9.

1 Am. Jur. Pl & Pr Forms, Rev, Abortion, Form 3.1.

2 Am. Jur. Trials, Investigating Particular Crimes § 64 (abortion).

41 Am. Jur. Proof of Facts 2d 1, Trauma in Pregnancy.

49 Am. Jur. Proof of Facts 2d 125, Teratogenic Drugs.

Lawyers’ Edition.

Validity, under Federal Constitution, of abortion laws. 28 L. Ed. 2d 1053.

Practice References.

Ronald L. Schoenberg, Criminal Law Deskbook (Matthew Bender).

§ 97-3-4. Failed abortion; unlawful for physician to intentionally allow or cause living child to die; care of living child mandated; penalties.

  1. It shall be unlawful for any physician performing an abortion that results in the delivery of a living child to intentionally allow or cause the child to die.
  2. If the child is viable, such child shall be immediately provided appropriate medical care and comfort care necessary to sustain life. If the child is not viable, such child shall be provided comfort care. The provision of this section shall include, but not be limited to, a child born with physical or mental handicapping conditions which, in the opinion of the parent, the physician or other persons, diminishes the quality of the child’s life, a child born alive during the course of an attempted abortion and a child not wanted by the parent.
  3. As used in this section the term “child” includes every infant member of the species homo sapiens who is born alive at any stage of development.
  4. Any person who violates this section shall be guilty of a felony and, upon conviction, be imprisoned for not less than one (1) year nor more than ten (10) years in the State Penitentiary and fined not more than Fifty Thousand Dollars ($50,000.00) but not less than Twenty-five Thousand Dollars ($25,000.00).

HISTORY: Laws, 2004, ch. 436, § 1, eff from and after July 1, 2004.

§ 97-3-5. Abortion; advertisement, sale or gift of drugs or instruments.

A person who sells, lends, gives away, or in any manner exhibits, or offers to sell, lend, or give away, or has in his possession with intent to sell, lend, or give away, or advertises or offers for sale, loan or distribution any instrument or article, or any drug or medicine, for causing unlawful abortion; or who writes or prints, or causes to be written or printed, a card, circular, pamphlet, advertisement, or notice of any kind, or gives information orally, stating when, where, how, of whom, or by what means such article or medicine can be purchased or obtained, or who manufactures any such article or medicine, is guilty of a misdemeanor, and, on conviction, shall be punished by fine not less than twenty-five dollars ($25.00) nor more than two hundred dollars ($200.00), and by imprisonment in the county jail not exceeding three (3) months.

HISTORY: Codes, 1892, § 1217; 1906, § 1293; Hemingway’s 1917, § 1026; 1930, § 1057; 1942, § 2289; Laws, 1970, ch. 344, § 1, eff from and after passage (approved March 4, 1970).

Cross References —

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violation, see §99-19-73.

JUDICIAL DECISIONS

1. In general.

Health and Human Service regulations limiting ability of Federal Title X fund recipients to engage to abortion related activities were permissible construction of Title X, did not impose viewpoint-discriminatory conditions on government subsidy so as to violate First Amendment free speech rights of either private health care organizations that received Title X funds, their staffs, or their patients, and did not violate women’s rights under due process clause of Fifth Amendment. Rust v. Sullivan, 500 U.S. 173, 111 S. Ct. 1759, 114 L. Ed. 2d 233, 1991 U.S. LEXIS 2908 (U.S. 1991).

A state statute making it a misdemeanor, by sale or circulation of any publication, to encourage or prompt the procuring of an abortion, unconstitutionally infringes upon the First Amendment rights of free speech and press of a newspaper editor who is prosecuted under that statute for publishing an advertisement of an out-of-state organization which offers services relating to obtaining legal abortions in the state where the organization is located. Bigelow v. Virginia, 421 U.S. 809, 95 S. Ct. 2222, 44 L. Ed. 2d 600, 1975 U.S. LEXIS 73 (U.S. 1975).

RESEARCH REFERENCES

Am. Jur.

10 Am. Jur. Trials, Obscenity Litigation §§ 1 et seq.

CJS.

67 C.J.S., Obscenity §§ 13-15, 28.

§ 97-3-7. Simple assault; aggravated assault; simple domestic violence; simple domestic violence third; aggravated domestic violence; aggravated domestic violence third.

    1. A person is guilty of simple assault if he or she (i) attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; (ii) negligently causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; or (iii) attempts by physical menace to put another in fear of imminent serious bodily harm; and, upon conviction, he or she shall be punished by a fine of not more than Five Hundred Dollars ($500.00) or by imprisonment in the county jail for not more than six (6) months, or both.
    2. However, a person convicted of simple assault upon any of the persons listed in subsection (14) of this section under the circumstances enumerated in subsection (14) shall be punished by a fine of not more than One Thousand Dollars ($1,000.00) or by imprisonment for not more than five (5) years, or both.
    1. A person is guilty of aggravated assault if he or she (i) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; (ii) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; or (iii) causes any injury to a child who is in the process of boarding or exiting a school bus in the course of a violation of Section 63-3-615; and, upon conviction, he or she shall be punished by imprisonment in the county jail for not more than one (1) year or sentenced to the custody of the Department of Corrections for not more than twenty (20) years.
    2. However, a person convicted of aggravated assault upon any of the persons listed in subsection (14) of this section under the circumstances enumerated in subsection (14) shall be punished by a fine of not more than Five Thousand Dollars ($5,000.00) or by imprisonment for not more than thirty (30) years, or both.
    1. When the offense is committed against a current or former spouse of the defendant or a child of that person, a person living as a spouse or who formerly lived as a spouse with the defendant or a child of that person, a parent, grandparent, child, grandchild or someone similarly situated to the defendant, a person who has a current or former dating relationship with the defendant, or a person with whom the defendant has had a biological or legally adopted child, a person is guilty of simple domestic violence who:
      1. Attempts to cause or purposely, knowingly or recklessly causes bodily injury to another;
      2. Negligently causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; or
      3. Attempts by physical menace to put another in fear of imminent serious bodily harm.

      Upon conviction, the defendant shall be punished by a fine of not more than Five Hundred Dollars ($500.00) or by imprisonment in the county jail for not more than six (6) months, or both.

    2. Simple domestic violence: third.A person is guilty of the felony of simple domestic violence third who commits simple domestic violence as defined in this subsection (3) and who, at the time of the commission of the offense in question, has two (2) prior convictions, whether against the same or another victim, within seven (7) years, for any combination of simple domestic violence under this subsection (3) or aggravated domestic violence as defined in subsection (4) of this section or substantially similar offenses under the law of another state, of the United States, or of a federally recognized Native American tribe. Upon conviction, the defendant shall be sentenced to a term of imprisonment not less than five (5) nor more than ten (10) years.
    1. When the offense is committed against a current or former spouse of the defendant or a child of that person, a person living as a spouse or who formerly lived as a spouse with the defendant or a child of that person, a parent, grandparent, child, grandchild or someone similarly situated to the defendant, a person who has a current or former dating relationship with the defendant, or a person with whom the defendant has had a biological or legally adopted child, a person is guilty of aggravated domestic violence who:
      1. Attempts to cause serious bodily injury to another, or causes such an injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life;
      2. Attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; or
      3. Strangles, or attempts to strangle another.

      Upon conviction, the defendant shall be punished by imprisonment in the custody of the Department of Corrections for not less than two (2) nor more than twenty (20) years.

    2. Aggravated domestic violence; third.A person is guilty of aggravated domestic violence third who, at the time of the commission of that offense, commits aggravated domestic violence as defined in this subsection (4) and who has two (2) prior convictions within the past seven (7) years, whether against the same or another victim, for any combination of aggravated domestic violence under this subsection (4) or simple domestic violence third as defined in subsection (3) of this section, or substantially similar offenses under the laws of another state, of the United States, or of a federally recognized Native American tribe. Upon conviction for aggravated domestic violence third, the defendant shall be sentenced to a term of imprisonment of not less than ten (10) nor more than twenty (20) years.
  1. Sentencing for fourth or subsequent domestic violence offense.Any person who commits an offense defined in subsection (3) or (4) of this section, and who, at the time of the commission of that offense, has at least three (3) previous convictions, whether against the same or different victims, for any combination of offenses defined in subsections (3) and (4) of this section or substantially similar offenses under the law of another state, of the United States, or of a federally recognized Native American tribe, shall, upon conviction, be sentenced to imprisonment for not less than fifteen (15) years nor more than twenty (20) years.
  2. In sentencing under subsections (3), (4) and (5) of this section, the court shall consider as an aggravating factor whether the crime was committed in the physical presence or hearing of a child under sixteen (16) years of age who was, at the time of the offense, living within either the residence of the victim, the residence of the perpetrator, or the residence where the offense occurred.
  3. Reasonable discipline of a child, such as spanking, is not an offense under subsections (3) and (4) of this section.
  4. A person convicted under subsection (4) or (5) of this section shall not be eligible for parole under the provisions of Section 47-7-3(1)(c) until he or she shall have served one (1) year of his or her sentence.
  5. For the purposes of this section:
    1. “Strangle” means to restrict the flow of oxygen or blood by intentionally applying pressure on the neck, throat or chest of another person by any means or to intentionally block the nose or mouth of another person by any means.
    2. “Dating relationship” means a social relationship as defined in Section 93-21-3.
  6. Every conviction under subsection (3), (4) or (5) of this section may require as a condition of any suspended sentence that the defendant participate in counseling or treatment to bring about the cessation of domestic abuse. The defendant may be required to pay all or part of the cost of the counseling or treatment, in the discretion of the court.
    1. Upon conviction under subsection (3), (4) or (5) of this section, the court shall be empowered to issue a criminal protection order prohibiting the defendant from any contact with the victim. The court may include in a criminal protection order any other condition available under Section 93-21-15. The duration of a criminal protection order shall be based upon the seriousness of the facts before the court, the probability of future violations, and the continued safety of the victim or another person. However, municipal and justice courts may issue criminal protection orders for a maximum period of time not to exceed one (1) year. Circuit and county courts may issue a criminal protection order for any period of time deemed necessary. Upon issuance of a criminal protection order, the clerk of the issuing court shall enter the order in the Mississippi Protection Order Registry within twenty-four (24) hours of issuance with no exceptions for weekends or holidays, pursuant to Section 93-21-25.
    2. A criminal protection order shall not be issued against the defendant if the victim of the offense, or the victim’s lawful representative where the victim is a minor or incompetent person, objects to its issuance, except in circumstances where the court, in its discretion, finds that a criminal protection order is necessary for the safety and well-being of a victim who is a minor child or incompetent adult.
    3. Criminal protection orders shall be issued on the standardized form developed by the Office of the Attorney General and a copy provided to both the victim and the defendant.
    4. It shall be a misdemeanor to knowingly violate any condition of a criminal protection order. Upon conviction for a violation, the defendant shall be punished by a fine of not more than Five Hundred Dollars ($500.00) or by imprisonment in the county jail for not more than six (6) months, or both.
  7. When investigating allegations of a violation of subsection (3), (4), (5) or (11) of this section, whether or not an arrest results, law enforcement officers shall utilize the form prescribed for such purposes by the Office of the Attorney General in consultation with the sheriff’s and police chief’s associations. However, failure of law enforcement to utilize the uniform offense report shall not be a defense to a crime charged under this section. The uniform offense report shall not be required if, upon investigation, the offense does not involve persons in the relationships specified in subsections (3) and (4) of this section.
  8. In any conviction under subsection (3), (4), (5) or (11) of this section, the sentencing order shall include the designation “domestic violence.” The court clerk shall enter the disposition of the matter into the corresponding uniform offense report.
  9. Assault upon any of the following listed persons is an aggravating circumstance for charging under subsections (1)(b) and (2)(b) of this section:
    1. When acting within the scope of his or her duty, office or employment at the time of the assault: a statewide elected official; law enforcement officer; fireman; emergency medical personnel; health care provider; employees of a health care provider or health care facility; social worker, family protection specialist or family protection worker employed by the Department of Human Services or another agency; Division of Youth Services personnel; any county or municipal jail officer; superintendent, principal, teacher or other instructional personnel, school attendance officer or school bus driver; any member of the Mississippi National Guard or United States Armed Forces; a judge of a circuit, chancery, county, justice, municipal or youth court or a judge of the Court of Appeals or a justice of the Supreme Court; district attorney or legal assistant to a district attorney; county prosecutor or municipal prosecutor; court reporter employed by a court, court administrator, clerk or deputy clerk of the court; public defender; or utility worker;
    2. A legislator while the Legislature is in regular or extraordinary session or while otherwise acting within the scope of his or her duty, office or employment; or
    3. A person who is sixty-five (65) years of age or older or a person who is a vulnerable person, as defined in Section 43-47-5.

HISTORY: Codes, 1857, ch. 64, art. 18; 1871, § 2497; 1880, § 2711; 1892, § 967; 1906, § 1043; Hemingway’s 1917, § 771; 1930, § 787; 1942, § 2011; Laws, 1974, ch. 458, § 1; Laws, 1992, ch. 431, § 2; Laws, 1993, ch. 580, § 1; Laws, 1998, ch. 425, § 1; Laws, 1998, ch. 525, § 1; Laws, 1999, ch. 552, § 2; Laws, 2000, ch. 552, § 1; Laws, 2001, ch. 566, § 1; Laws, 2002, ch. 353, § 1; Laws, 2004, ch. 489, § 9; Laws, 2006, ch. 589, § 1; Laws, 2006, ch. 600, § 11; Laws, 2007, ch. 589, § 10; Laws, 2008, ch. 391, § 2; Laws, 2008, ch. 553, § 1; Laws, 2009, ch. 433, § 3; Laws, 2010, ch. 536, § 1; Laws, 2011, ch. 481, § 3; Laws, 2012, ch. 514, § 8; Laws, 2013, ch. 565, § 1; Laws, 2014, ch. 463, § 1; Laws, 2015, ch. 332, § 3; Laws, 2015, ch. 397, § 1; Laws, 2016, ch. 346, § 1, eff from and after July 1, 2016; Laws, 2019, ch. 341, § 1, eff from and after July 1, 2019.

Joint Legislative Committee Note —

Section 1 of ch. 425, Laws, 1998, effective July 1, 1998 (approved March 23, 1998), amended this section. Section 1 of ch. 525, Laws, 1998, effective July 1, 1998 (approved April 6, 1998), also amended this section. As set out above, this section reflects the language of Section 1 of ch. 525, Laws, 1998, pursuant to Section 1-3-79 which provides that whenever the same section of law is amended by different bills during the same legislative session, and the effective dates of the amendments are the same, the amendment with the latest approval date shall supersede all other amendments to the same section approved on an earlier date.

Section 1 of ch. 589, Laws, 2006, effective from and after July 1, 2006 (approved April 21, 2006), amended this section. Section 11 of ch. 600, Laws, 2006, effective from and after July 1, 2006 (approved April 24, 2006), also amended this section. As set out above, this section reflects the language of Section 1 of ch. 589, Laws, 2006, which contains language that specifically provides that it supercedes §97-3-7 as amended by Laws, 2006, ch. 600.

Section 2 of ch. 391, Laws of 2008, effective July 1, 2008 (approved March 31, 2008), amended this section. Section 1 of ch. 553, Laws of 2008, effective July 1, 2008 (approved May 10, 2008), also amended this section. As set out above, this section reflects the language of Section 1 of ch. 553, Laws of 2008, which contains language that specifically provides that it supersedes §97-3-7 as amended by Laws of 2008, ch. 391.

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected several typographical errors in subsection (12) by substituting “subsection (3), (4), (5) or (11) of this section” for “subsection (3), (4) (5) or 11 of this section.” The Joint Committee ratified the correction at its July 24, 2014, meeting.

Section 3 of Chapter 332, Laws of 2015, effective from and after July 1, 2015, (approved March 13, 2015), amended this section. Section 1 of Chapter 397, Laws of 2015, effective from and after July 1, 2015 (approved March 23, 2015), also amended this section. As set out above, this section reflects the language of both amendments pursuant to Section 1-1-109, which gives the Joint Legislative Committee on Compilation, Revision and Publication of Legislation authority to integrate amendments so that all versions of the same code section enacted within the same legislative session may become effective. The Joint Committee on Compilation, Revision and Publication of Legislation ratified the integration of these amendments as consistent with the legislative intent at the August 17, 2015, meeting of the Committee.

Editor's Notes —

Laws of 1974, ch. 458, § 3, which chapter amended this section, provides as follows:

“SECTION 3. Nothing in this act shall be construed to defeat or affect in any manner whatsoever the prosecution of any person, association, firm or corporation for the violation of any statute repealed or amended hereby which violation occurred prior to the effective date of this act.”

Amendment Notes —

The 2004 amendment added “child protection specialist” following “social worker” throughout and made minor stylistic changes.

The first 2006 amendment (ch. 589) substituted “social worker or family protection specialist” for “social worker or child protection specialist” and inserted “or family protection worker” throughout (1) and (2); and inserted “municipal” preceding “or youth court or a judge of the Court” in the second sentences of (1) and (2).

The second 2006 amendment (ch. 600) substituted “social worker or family protection specialist” for “social worker or child protection specialist” and inserted “or family protection worker” throughout (1) and (2).

The 2007 amendment inserted “youth detention center personnel, any county or municipal jail officer” everywhere it appears in (1) and (2); added (7), and redesignated former (7) as present (8); and added the last sentence in (8).

The first 2008 amendment (ch. 391), in (3) and (4), inserted “a person living as a spouse or who formerly lived as a spouse with the defendant, other persons related by consanguinity or affinity who reside with or formerly resided with the defendant,” and inserted “or former” preceding “dating relationship”; and in (5), substituted “as defined in Section 93-21-3” for “of a romantic or intimate nature.”

The second 2008 amendment (ch. 553) inserted “training school juvenile care worker” everywhere it appears in (1) and (2); added (c) in the second sentences of (1) and (2); and made minor stylistic changes.

The 2009 amendment inserted “or a child of that person” both times it appears in the first sentence of (3) and (4); and deleted the former last sentence in (7), which read: “In cases in which the investigation results in an arrest, a copy of the offense report shall be provided to the Office of the Attorney General.”

The 2010 amendment rewrote the first paragraph of (4), and added the second paragraph.

The 2011 amendment inserted item (c) in the first sentence in (2) and made a related change.

The 2012 amendment rewrote the first two sentences in (3) and (4); added the last sentence in (7); rewrote the last sentence in (8); and made minor stylistic changes throughout.

The 2013 amendment rewrote (3), (4) and (5) by adding the designators in order to clarify the elements of domestic violence and to revise the punishments.

The 2014 amendment rewrote the section to clarify the sentencing status of a multiple domestic violence offender.

The first 2015 amendment (ch. 332) added the last sentence in (11)(a).

The second 2015 amendment (ch. 397) deleted “if the person is” from the end of (14); in (14)(a), added “When acting within the scope of his duty, office or employment at the time of the assault” at the beginning of the first sentence, and substituted “Division of Youth Services personnel” for “youth detention center personnel; training school juvenile care worker” and substituted “public defender; or utility worker” for “or public defender when or when that person is acting within the scope of his duty, office or employment” at the end.

The 2016 amendment inserted “any member of the Mississippi National Guard or United States Armed Forces” in (14)(a).

The 2019 amendment substituted “sentenced to the custody of the Department of Corrections for not more than” for “in the Penitentiary for not more than” in (2)(a); and in (14)(a), substituted “health care provider” for “health personnel” and inserted “employees of a health care provider or health care facility”; and made gender neutral changes throughout.

Cross References —

Employees of department of corrections having status of law-enforcement officers under this section, see §47-5-54.

Effect of conviction of assault with intent to kill as disqualification for holding office in labor union, etc., see §71-1-49.

Mississippi Protection Order Registry, see §93-21-25.

Aggravated assault, as provided in this section, defined as crime of violence, see §97-3-2.

Homicide, see §97-3-15 et seq.

Mayhem, see §97-3-59.

Applicability of the Racketeer Influenced and Corrupt Organization Act to this section, see §97-43-1 et seq.

Arrest of person without warrant for violation of this section, see §99-3-7.

Insulting words being admissible in assault trials, see §99-17-19.

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any felony violation, see §99-19-73.

Additional monetary assessment for violation of this section when committed against a minor to be deposited in Mississippi Children’s Trust Fund, see §99-19-75.

Enhancement of offenses listed in99-19-401(2) if the instrumentality used in the commission of the99-19-401(2) offense was initially obtained in the course of the commission of the crime(s) provided for in this section, see § 99-19-401.

JUDICIAL DECISIONS

1. In general; definitions and distinctions.

2. Intent; generally.

3. —Sufficiency of.

4. Deadly weapon.

5. Serious bodily harm.

6. Indictment or affidavit; generally.

7. —Sufficiency of.

8. Defenses; generally.

9. — Insanity.

10. — Self-defense.

11. —Civil suit as bar to prosecution.

12. Double jeopardy.

13. Evidence; generally.

14. — Admissibility.

15. — — Nature of injuries.

16. — — Other offenses or conduct.

17. — —Self-defense.

18. — Sufficiency.

19. — — Charge or conviction supportable.

20. — —Charge or conviction unsupportable.

21. —Variance between indictment and proof.

22. Instructions; generally.

23. —Intent.

24. —Deadly weapon.

25. —Self-defense.

26. — Lesser offense.

27. —Defendant as witness.

28. Conviction of lesser crime.

29. Sentence.

30. — Excessive fine.

31. Domestic violence aggravated assault.

32. Miscellaneous.

1. In general; definitions and distinctions.

Where an altercation begins with a simple assault but as a matter of law escalates in a continuous sequence of events to an aggravated assault, the simple assault is subsumed into the aggravated assault. Downs v. State, 962 So. 2d 1255, 2007 Miss. LEXIS 444 (Miss. 2007).

Under Mississippi law, domestic violence, as defined in Miss. Code Ann. §97-3-7(3), is not a lesser-included offense of kidnapping, a violation of Miss. Code Ann. §97-3-53, because the two are independent crimes with distinct elements; the elements of domestic violence are not among the elements of kidnapping. Busby v. State, 956 So. 2d 1112, 2007 Miss. App. LEXIS 352 (Miss. Ct. App. 2007).

Defendant, who was convicted of kidnapping, a violation of Miss. Code Ann. §97-3-53, was not entitled to a jury instruction on domestic violence under Miss. Code Ann. §97-3-7(3) as a lesser included offense because the two were independent crimes with distinct elements. Busby v. State, 956 So. 2d 1112, 2007 Miss. App. LEXIS 352 (Miss. Ct. App. 2007).

Denial of the inmate’s petition for post-conviction relief was proper where it was not necessary under Miss. Code Ann. §97-3-7(2)(b) that the victim suffer “serious” bodily injury. Mere bodily injury was sufficient as long it was caused with other means likely to produce death or serious bodily harm. Miller v. State, 919 So. 2d 1067, 2005 Miss. App. LEXIS 457 (Miss. Ct. App. 2005).

In a juvenile delinquency case, the petition did not give the trial judge the option of an attempt charge in a simple assault case, and the record was devoid of any questions or answers regarding injury caused at the hands of appellant juvenile when he touched the minor victim’s private area; thus, the State failed to prove all the elements of simple assault as charged in the petition, specifically, proof of bodily injury, and appellant was improperly adjudicated a delinquent. In the Interest of C.A., 872 So. 2d 705, 2004 Miss. App. LEXIS 405 (Miss. Ct. App. 2004).

Where a decedent pointed a loaded gun at officers in violation of Miss. Code Ann. §97-3-7, refused to lower the gun, backed into his house, and initiated fire at the officers, an officer reasonably believed that his life and the lives of other officers at the scene were in imminent danger; hence, there was no violation of the decedent’s Fourth Amendment rights when the officer followed the decedent into the latter’s home, where the officer returned fire and mortally injured the decedent. Elkins v. McKenzie, 865 So. 2d 1065, 2003 Miss. LEXIS 582 (Miss. 2003).

Finding that a juvenile was a delinquent child after he was convicted of simple assault was proper where it was foreseeable that pushing a person down a hill and over a ledge could cause serious injuries; he acted recklessly and there was sufficient evidence for the trial judge, acting as the jury, to conclude that he was guilty of simple assault, Miss. Code Ann. §97-3-7(1). In re G. L. H., 843 So. 2d 109, 2003 Miss. App. LEXIS 335 (Miss. Ct. App. 2003).

Manslaughter indictment sufficiently alleged that defendant was engaged in the perpetration of a felony, namely aggravated assault pursuant to Miss. Code Ann. §97-3-7(2), that had to be proved in order to show that defendant’s participation in the crime of killing another human being without malice was manslaughter, as the indictment tracked the language of the aggravated assault statute and identified the person upon whom defendant committed the aggravated assault, the person who was killed while defendant committed that felony, and the date and place of the crimes committed. Stevens v. State, 2001 Miss. LEXIS 301 (Miss. Oct. 31, 2001).

Defendant’s conviction for assault of a police officer was affirmed because substantial evidence showed that the victim suffered injury, and the jury rejected the contention that defendant was resisting an unlawful arrest. Johnson v. State, 754 So. 2d 576, 2000 Miss. App. LEXIS 12 (Miss. Ct. App. 2000).

Police officer’s action in turning onto road despite fact that view of oncoming traffic was blocked by row of hedges, while negligent, did not turn collision with motorist into crime of assault, so as to relieve motorist of having to comply with notice requirements in Tort Claims Act in subsequent personal injury claim against city and officer. City of Jackson v. Lumpkin, 697 So. 2d 1179 (Miss. 1997), overruled in part, Carr v. Town of Shubutu, 733 So. 2d 261 (Miss. 1999), overruled to the extent that these cases characterize the notice requirements set out in §11-46-11 as jurisdictional requirements, Stuart v. Univ. of Miss. Med. Ctr, – So.3d –, 2009 Miss. LEXIS 396 (Miss Aug. 20, 2009). Carr v. Town of Shubuta, 733 So. 2d 261, 1999 Miss. LEXIS 72 (Miss. 1999), overruled in part, Stuart v. Univ. of Miss. Med. Ctr., 21 So.3d 544, 2009 Miss. LEXIS 396 (Miss. 2009).

In aggravated assault prosecution arising from defendant’s stabbing of two victims, evidence was insufficient to warrant lesser included offense instruction on simple assault; multiple stab wounds suffered by victims were serious and life threatening, and there was no evidence that defendant was merely negligent in handling knife. Jackson v. State, 684 So. 2d 1213, 1996 Miss. LEXIS 7 (Miss. 1996), cert. denied, 520 U.S. 1215, 117 S. Ct. 1703, 137 L. Ed. 2d 828, 1997 U.S. LEXIS 2937 (U.S. 1997).

The mere pointing of a firearm does not constitute attempt under the aggravated assault statute, this section. Gibson v. State, 660 So. 2d 1268, 1995 Miss. LEXIS 365 (Miss. 1995).

In a prosecution for aggravated assault, the State was not required to prove that the defendant acted “under circumstances manifesting extreme indifference to the value of human life” where the indictment charged only that the defendant “did unlawfully, feloniously, purposely and knowingly cause serious bodily injury” to the victim. Hall v. State, 644 So. 2d 1223, 1994 Miss. LEXIS 513 (Miss. 1994).

Subsection (1) of this section is not unconstitutionally vague on the ground that it does not define “bodily injury”; although there are no degrees of bodily injury stated in the statute, a minor injury is a “bodily injury” even though it may not be a traumatic injury. Reining v. State, 606 So. 2d 1098, 1992 Miss. LEXIS 542 (Miss. 1992).

Subsection (2) of this section is not unconstitutionally vague on the ground that it does not define the term “serious bodily harm,” particularly when applied in a case involving brutal injuries; in more ambiguous cases, prosecutors and trial courts should refer to the definition of “serious bodily injury” set out in § 210.0 of the Model Penal Code. Fleming v. State, 604 So. 2d 280, 1992 Miss. LEXIS 382 (Miss. 1992).

It is not necessary under §97-3-7(2)(b) for the State to prove that the victim suffered “serious” bodily injury; mere “bodily injury” is sufficient so long as it was caused with “other means likely to produce death or serious bodily harm.” Jackson v. State, 594 So. 2d 20, 1992 Miss. LEXIS 46 (Miss. 1992).

While a juvenile’s intentional touching and squeezing of a pregnant woman’s derriere, without permission, amounted to a physical offense, this conduct did not constitute simple assault under §97-3-7(1)(c) where there was no proof of fear of imminent serious bodily harm. Thus, the juvenile’s adjudication of delinquency would be reversed based on the failure to prove an essential element of the crime of simple assault. S.B. v. State, 566 So. 2d 1276, 1990 Miss. LEXIS 553 (Miss. 1990).

The difference between attempted murder and aggravated assault is the specific intent requirement, for the former, and the element of deadly weapon use, for the latter. In many fact scenarios, both charges are established by the same evidence. McGowan v. State, 541 So. 2d 1027, 1989 Miss. LEXIS 180 (Miss. 1989).

A fireman who was engaged in rescuing individuals from a wrecked automobile outside of the city and county in which he was employed was nevertheless a “fireman” within the meaning of this section, which sets forth the punishment for simple assault upon a fireman acting within the scope of his duty, since the fireman was authorized under §21-25-5 to act outside his city boundary in “aiding in the rescue of persons” and was not limited to county lines. Cagle v. State, 536 So. 2d 3, 1988 Miss. LEXIS 431 (Miss. 1988).

Person who shoots 4 or 5 bullets at second person, hitting third person with 3 bullets, has committed aggravated assault with respect to third person notwithstanding lack of intent to shoot that person. Davis v. State, 476 So. 2d 608, 1985 Miss. LEXIS 2248 (Miss. 1985).

Prosecution for aggravated assault on police officer is not barred by prior prosecution for aggravated assault on another police officer arising out of same incident. Lee v. State, 469 So. 2d 1225, 1985 Miss. LEXIS 1900 (Miss. 1985).

A defendant who assaulted three police officers, on the same day and as a part of the same occurrence, was properly subjected to three separate charges of assault, in violation of subsection (1) of this section, and properly sentenced to three consecutive terms, pursuant to §99-19-21, for the three resulting convictions. Ball v. State, 437 So. 2d 423, 1983 Miss. LEXIS 2862 (Miss. 1983).

Defendant’s act of pointing a loaded pistol at another came within statutory crime of aggravated assault where it manifested an extreme indifference to the value of human life. Nelson v. State, 361 So. 2d 343, 1978 Miss. LEXIS 2366 (Miss. 1978).

Lands within the area designated as a reservation for the Choctaw Indians residing in central Mississippi were on the basis of the history of the relations between the Mississippi Choctaws and the United States, “Indian country,” as defined in 18 USCS § 1151 and as used in the Major Crimes Act of 1885 ( 18 USCS § 1153); these federal statutes operate to vest exclusive jurisdiction in the federal courts and to preclude the exercise of state criminal jurisdiction over certain offenses committed on these lands, including aggravated assault, even though (1) the Choctaws in Mississippi were merely a remnant of a larger group of Indians, long ago removed from Mississippi, (2) federal supervision over them had not been continuous, and (3) the Treaty at Dancing Rabbit Creek (7 Stat 333) extended state citizenship to Choctaws remaining in Mississippi. United States v. John, 437 U.S. 634, 98 S. Ct. 2541, 57 L. Ed. 2d 489, 1978 U.S. LEXIS 124 (U.S. 1978).

Under this section [Code 1042, § 2013] in order to find that the defendant did unlawfully and feloniously injure the victim, it is not necessary that the state show that the defendant intentionally or willfully discharged the firearm or intentionally or willfully injured the person whom he assaulted. Barnes v. State, 249 So. 2d 383, 1971 Miss. LEXIS 1160 (Miss. 1971).

Many cases of assault and battery, such as a fist fight, are not covered by statute and depend on the common law. Butler v. State, 212 So. 2d 573, 1968 Miss. LEXIS 1289 (Miss. 1968).

Where the accused, pursuant to a plan to kill a bus driver, attached dynamite to a bus in such a manner that it exploded upon the ignition being turned on, and the intended victim was horribly maimed thereby, the offense came within the purview of Code 1942, § 2143, rather than this section [Code 1942, § 2011]. Rogers v. State, 228 Miss. 873, 89 So. 2d 860, 1956 Miss. LEXIS 576 (Miss. 1956).

The means or force must at least be capable of producing death. Blaine v. State, 196 Miss. 603, 17 So. 2d 549, 1944 Miss. LEXIS 240 (Miss. 1944).

Battery with hands and feet may be a means or force “likely to produce death” within the purview of this section [Code 1942, § 2011], depending on the circumstances of each case. Blaine v. State, 196 Miss. 603, 17 So. 2d 549, 1944 Miss. LEXIS 240 (Miss. 1944).

The word “likely” in the statute borrows meaning from both possibility and probability and stands midway between their respective connotations, and, as so defined, the responsibility for adjudging likelihood, in all cases save those speaking absurdity, remains with the jury, which may be left free to give due weight to the parties, the place, the means used, and the degree of force employed. Blaine v. State, 196 Miss. 603, 17 So. 2d 549, 1944 Miss. LEXIS 240 (Miss. 1944).

“Assault” defined. Blankenship v. State, 130 Miss. 725, 95 So. 81, 1922 Miss. LEXIS 254 (Miss. 1922).

Words “point” and “aim” are synonymous and charge but one offense. Coleman v. State, 94 Miss. 860, 48 So. 181, 1909 Miss. LEXIS 338 (Miss. 1909).

Distinction is drawn between assault with intent to kill and murder and assault and battery with same intent. Montgomery v. State, 85 Miss. 330, 37 So. 835, 1904 Miss. LEXIS 158 (Miss. 1904), overruled, Flowers v. State, 101 Miss. 108, 57 So. 226, 1911 Miss. LEXIS 94 (Miss. 1911).

2. Intent; generally.

Defendant kicked the officer, dislocating the officer’s jaw, and although no direct evidence was presented that defendant intended to injure the officer, a juror could reasonably infer the intent from the evidence, and the appellate court could not reverse the verdict because of insufficient evidence. Brown v. State, 852 So. 2d 607, 2003 Miss. App. LEXIS 10 (Miss. Ct. App. 2003).

Subsection (b) is written in the disjunctive, rather than the conjunctive, with regard to a defendant’s intent, as it requires a showing that the defendant caused serious bodily injury “purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life.” Stegall v. State, 765 So. 2d 606, 2000 Miss. App. LEXIS 394 (Miss. Ct. App. 2000).

The indictment of the defendant and instructions to the jury given in his trial erroneously turned on an improper interpretation of the elements of attempted aggravated assault where they both used language pertaining to reckless, rather than intentional, conduct. Morris v. State, 748 So. 2d 143, 1999 Miss. LEXIS 310 (Miss. 1999).

Indictment and jury instructions adequately covered issue of intent with respect to charge of aggravated assault by alleging that defendant caused injury “willfully.” Moore v. State, 676 So. 2d 244, 1996 Miss. LEXIS 328 (Miss. 1996).

One does not have to possess ill will toward, or even know the identity of, a specific individual in order possess the requisite intent to commit an aggravated assault on that person. Blanks v. State, 542 So. 2d 222, 1989 Miss. LEXIS 165 (Miss. 1989).

Person who shoots 4 or 5 bullets at second person, hitting third person with 3 bullets, has committed aggravated assault with respect to third person notwithstanding lack of intent to shoot that person. Davis v. State, 476 So. 2d 608, 1985 Miss. LEXIS 2248 (Miss. 1985).

Recklessness or negligence contemplated by this section for conviction of simple assault is in act itself and does not refer to subjective intent of defendant who acts in reckless or negligent belief that he is acting in self defense. Nobles v. State, 464 So. 2d 1151, 1985 Miss. LEXIS 1919 (Miss. 1985).

It is necessary for the state to prove intent on the part of the defendant to kill and murder the person named in the indictment. Barnette v. State, 252 Miss. 652, 173 So. 2d 904, 1965 Miss. LEXIS 1136 (Miss. 1965).

The rule of criminal law that where one crime is intended and by mistake another committed the unlawful intent to do one act is transposed to the other does not apply to the statutory crime of assault and battery with intent to kill. Barnette v. State, 252 Miss. 652, 173 So. 2d 904, 1965 Miss. LEXIS 1136 (Miss. 1965).

The intent of the accused is an essential ingredient of the charge of assault and battery with unlawful and felonious intent, with malice aforethought, to kill and murder. Hydrick v. State, 246 Miss. 448, 150 So. 2d 423, 1963 Miss. LEXIS 463 (Miss. 1963).

The intent must exist at the time the injury was inflicted. Lindley v. State, 234 Miss. 423, 106 So. 2d 684, 1958 Miss. LEXIS 512 (Miss. 1958).

A felonious intent is necessary to support the charge of assault with intent to kill and murder. Washington v. State, 222 Miss. 782, 77 So. 2d 260, 1955 Miss. LEXIS 663 (Miss. 1955).

The trial court properly limited the jury to a consideration of defendant’s guilt of simple assault and battery in a prosecution under this section, where the element of intent was absent. Markham v. State, 209 Miss. 135, 46 So. 2d 88, 1950 Miss. LEXIS 370 (Miss. 1950).

Test of defendant’s guilt under this section is whether or not the accused intends to kill and murder at time he fires shot or otherwise inflicts wound, and if such intent then exists he is not to be exonerated of felonious charge by what he does or fails to do thereafter. Ceary v. State, 204 Miss. 299, 37 So. 2d 316, 1948 Miss. LEXIS 366 (Miss. 1948).

Under this section [Code 1942, § 2011] both the nature of the means used and the quality of the purpose are essential elements of the crime charged; the weapon must be deadly, or the means likely to produce death, and the intent must be murder. Daniels v. State, 196 Miss. 328, 17 So. 2d 793, 1944 Miss. LEXIS 196 (Miss. 1944).

It is intent with which an assault is committed that raises it from misdemeanor to a felony. Toler v. State, 143 Miss. 96, 108 So. 443, 1926 Miss. LEXIS 246 (Miss. 1926).

3. —Sufficiency of.

Defendant was wrongly convicted of attempted aggravated assault because the doctrine of transferred intent was not applicable as defendant deliberately shot and killed the intended victim, but the unintended victim was unharmed when the bullet landed near the unintended victim. Defendant had no intention to harm the unintended victim, defendant was not aware of the unintended victim’s presence, and there was no evidence that the unintended victim was in any fear of harm. Craig v. State, 201 So.3d 1108, 2016 Miss. App. LEXIS 598 (Miss. Ct. App. 2016).

Circuit court did not abuse its discretion in denying defendant’s motion for a new trial where a jury could have reasonably found from the evidence and testimony at trial that defendant intended or was attempting to cause two officers seriously bodily injury by resisting arrest, lunging on the bed, and reaching for a knife, and that the tasing was an extraneous event that prevent defendant from carrying out the intended aggravated assault on the officers. Hunter v. State, 196 So.3d 998, 2015 Miss. App. LEXIS 602 (Miss. Ct. App. 2015), cert. denied, 202 So.3d 611, 2016 Miss. LEXIS 309 (Miss. 2016).

Defendant’s conviction for burglary of a dwelling, in violation of Miss. Code Ann. §97-17-23(1), was supported by the evidence because defendant crashed through a glass window and advanced briskly upon one victim with hands raised, in what was described as a threatening gesture; hence, the evidence was sufficient to infer that defendant intended to commit an assault under Miss. Code Ann. §97-3-7(1). Walker v. State, 21 So.3d 663, 2009 Miss. App. LEXIS 182 (Miss. Ct. App.), cert. denied, 20 So.3d 680, 2009 Miss. LEXIS 578 (Miss. 2009).

Defendant’s conviction for simple assault upon a law enforcement officer pursuant to Miss. Code Ann. §97-3-7(1)(a) was appropriate because an officer’s testimony that defendant, while resisting arrest, swung the handcuffs at him, supported the inference that she did so purposely and knowingly. There was no evidence concerning the distances involved that would have cast doubt upon the veracity of the officers’ testimonies that defendant swung the handcuffs at the first officer, who ducked, which permitted the handcuffs to strike the other officer in the face. Hitt v. State, 988 So. 2d 939, 2008 Miss. App. LEXIS 473 (Miss. Ct. App. 2008).

Where defendant, in the process of being arrested for suspicion of driving while under the influence of intoxicants, swung at an officer with a closed fist and landed a “glancing blow,” but the officer did not testify as to undergoing any injury or feeling pain, the Murrell standard was controlling and required new trial. Reynolds v. State, 818 So. 2d 1287, 2002 Miss. App. LEXIS 337 (Miss. Ct. App. 2002).

Evidence was insufficient to support a charge of attempt to rape where there was nothing in the record that would distinguish the intent of the defendant to rape his victim from any other particular intent where, during the entire assault, both the defendant and the victim were fully clothed and there was no evidence that the defendant removed or attempted to remove any of victim’s clothes, nor was there evidence that the defendant fondled or caressed his victim or attempted to do so; the evidence merely depicted a somewhat aimless attack wherein the defendant grabbed his victim, pushed her to the floor and held her there. Aikerson v. State, 295 So. 2d 778, 1974 Miss. LEXIS 1524 (Miss. 1974).

Argument that defendant did not intend to kill arresting officer because he shot only once, and, although he had the officer’s loaded revolver, he left without killing the officer, and therefore this showed conclusively that he did not intend to kill the officer, was not well taken, inasmuch as the issue as to what the defendant intended at the time he fired the shot was a jury issue. Torrence v. State, 283 So. 2d 595, 1973 Miss. LEXIS 1232 (Miss. 1973).

The evidence in a prosecution for assault and battery with intent to kill and murder, sufficiently created a jury question as to intent to kill, on the part of a defendant who struck the victim with a stick with such force as to knock the victim to the pavement, and who returned later and struck the victim again while he was unconscious. Thompson v. State, 258 So. 2d 448, 1972 Miss. LEXIS 1509 (Miss. 1972).

Conviction of assault with intent to kill is not warranted by a showing merely of intent to do great bodily harm. Lindley v. State, 234 Miss. 423, 106 So. 2d 684, 1958 Miss. LEXIS 512 (Miss. 1958).

The requisite intent is not present where intent to kill is conditioned on happening of an event which may within reason fail to take place, as in the case of a threat to kill if a debt is not paid. Lindley v. State, 234 Miss. 423, 106 So. 2d 684, 1958 Miss. LEXIS 512 (Miss. 1958).

Evidence that four law enforcement officers under the authority of a search warrant for intoxicating liquor went to the accused’s home on a dark night, and upon finding no one at home, gained entrance through a window, and remained therein from 10 o’clock until midnight, without showing any lights, and the accused, who had been advised that someone was in his home, with a companion shot out the windows of the home with a shot gun fired at a distance of 60 feet, using No. 8, or birdshot, was insufficient to support a finding that accused’s intent and purpose was to kill and murder. Smith v. State, 233 Miss. 503, 102 So. 2d 699, 1958 Miss. LEXIS 409 (Miss. 1958).

Intent is main ingredient of offense under this section, and where facts show that intent to kill was conditioned upon happening of some other event, which may, within reason, fail to take place, real intent to kill and murder does not come into existence. Craddock v. State, 204 Miss. 606, 37 So. 2d 778, 1948 Miss. LEXIS 393 (Miss. 1948).

An intent to murder, the gist of this offense, was not shown where the deceased was shot by his own pistol which he had given to the defendant who apparently for effect drew the pistol during a crap game and it was discharged when one of the participants struck the defendant’s arm. Edgar v. State, 202 Miss. 505, 32 So. 2d 441, 1947 Miss. LEXIS 307 (Miss. 1947).

In assault committed by throwing a pair of pliers from a distance of ten feet, striking prosecuting witness upon the upper lip, the evidence, in view of the circumstances, including the parties, the occasion and the means used, was insufficient to support a finding beyond a reasonable doubt that accused’s purpose was to kill and murder. Daniels v. State, 196 Miss. 328, 17 So. 2d 793, 1944 Miss. LEXIS 196 (Miss. 1944).

The statute charging the crime with specific intent to kill and murder a specified person is made out only by proof sufficient to find that the specific intent to kill existed-the specific intent to kill being the gist of the offense, or that which raises it from a mere misdemeanor to a felony. Intent to kill a specified person, accompanied by an overt act constituting an assault, is also, in a sense, an attempt to commit the crime; but there must be an intent accompanied by an overt act, to make out the offense under this section [Code 1942, § 2011]. Norwood v. State, 182 Miss. 898, 183 So. 523, 1938 Miss. LEXIS 205 (Miss. 1938).

Intent to murder may not be inferred from leveling of gun, and the fact that defendant did not shoot, there being nothing to prevent, tends to negative existence of such intent. Toler v. State, 143 Miss. 96, 108 So. 443, 1926 Miss. LEXIS 246 (Miss. 1926).

Intent to kill conditioned on happening of event insufficient, though condition unlawful. Stroud v. State, 131 Miss. 875, 95 So. 738, 1923 Miss. LEXIS 222 (Miss. 1923).

Evidence of conditional threat to kill held insufficient to establish intent. Stroud v. State, 131 Miss. 875, 95 So. 738, 1923 Miss. LEXIS 222 (Miss. 1923).

The intent must be actual, not conditional. Hairston v. State, 54 Miss. 689, 1877 Miss. LEXIS 82 (Miss. 1877).

4. Deadly weapon.

In an aggravated assault case, a trial court did not err by denying motions for a directed verdict or a judgment notwithstanding the verdict because the State was not required to provide defendant’s deoxyribonucleic acid or fingerprints on a knife in order to present sufficient evidence to support his conviction. Further, a police detective testified that he found a knife on the floor, and a doctor testified that the lacerations on the victim’s face were consistent with knife wounds. Ferguson v. State, 137 So.3d 240, 2014 Miss. LEXIS 84 (Miss. 2014).

Assault conviction was affirmed where defendant’s use of hands and fists to strike the victim constituted a means likely to produce serious bodily harm, which was sufficient under Miss. Code Ann. §97-3-7(2)(b). Parks v. State, 930 So. 2d 383, 2006 Miss. LEXIS 283 (Miss. 2006).

Defendant’s challenge to his conviction for aggravated assault under Miss. Code Ann. §97-3-7 on the grounds that the butt of his gun was not a dangerous weapon was without merit because it was within the province of the jury to determine whether or not the use of the gun as a bludgeoning instrument made it a deadly weapon. Beyers v. State, 930 So. 2d 456, 2006 Miss. App. LEXIS 397 (Miss. Ct. App. 2006).

Where defendant argued that the State failed to prove that the baseball bat used in the attack of the victim was a deadly weapon sufficient to support a conviction of aggravated assault pursuant to Miss. Code Ann. §97-3-7, the claim failed; the bat caused a compound fracture of the victim’s leg, which indicated that the bat certainly could have done more damage even to the point of causing the victim’s death. Brown v. State, 864 So. 2d 1009, 2004 Miss. App. LEXIS 55 (Miss. Ct. App. 2004).

Evidence was sufficient to support defendant’s conviction for aggravated assault–he inflicted the injuries to the victim with a deadly weapon. Harris v. State, 892 So. 2d 830, 2004 Miss. App. LEXIS 978 (Miss. Ct. App. 2004).

Under the statute, it was unnecessary for the State to prove the victim suffered serious bodily injury, mere bodily injury was sufficient so long as it was caused with other means likely to produce serious bodily harm. Vance v. State, 803 So. 2d 1265, 2002 Miss. App. LEXIS 14 (Miss. Ct. App. 2002).

A bottle may be found to be a deadly weapon. Gayle v. State, 743 So. 2d 392, 1999 Miss. App. LEXIS 197 (Miss. Ct. App. 1999).

Evidence was sufficient to allow a jury to find that the defendant’s use of his fist was a means likely to produce death or serious bodily harm where (1) the force of the defendant’s first blow knocked the victim out of his recliner and onto the fireplace hearth, and (2) the defendant was 19 years old at the time of the crime and struck a much older man in his own home. Harrison v. State, 724 So. 2d 978, 1998 Miss. App. LEXIS 1052 (Miss. Ct. App. 1998).

While an assault under subsection (2)(b) of this section ordinarily involves the use of a weapon, a violent and aggravated assault committed with one’s fists may constitute a crime under subsection (2)(b) of this section; it is not necessary under subsection (2)(b) of this section that the use of hands and fists constitute the use of a “deadly weapon,” but, rather, it is enough if their use constitutes a “means likely to produce [either] death or serious bodily harm.” Jackson v. State, 594 So. 2d 20, 1992 Miss. LEXIS 46 (Miss. 1992).

Whether closed fists constitute a “means likely to produce serious bodily harm” under subsection (2)(b) of this section involves a question of fact to be decided by the jury in light of the evidence; the responsibility for determining likelihood remains with the jury which may be left free to give due weight to the characteristics of the parties, the place, the manner in which hands and fists were used, and the degree of force employed. Jackson v. State, 594 So. 2d 20, 1992 Miss. LEXIS 46 (Miss. 1992).

The use of a .357 Magnum as a blunt instrument was sufficient to support an aggravated assault charge since the use of the gun as a blunt instrument could have been found by the jury to constitute use of a weapon which could cause bodily injury to another within the meaning of this section. Griffin v. State, 540 So. 2d 17, 1989 Miss. LEXIS 144 (Miss. 1989).

A reasonable person could determine that a pistol which misfired 3 times was a deadly weapon where there was no proof that the pistol was incapable of firing and the pistol was not available for inspection at trial. The fact that the pistol misfired 3 times does not preclude its capability to fire on the fourth attempt. Davis v. State, 530 So. 2d 694, 1988 Miss. LEXIS 400 (Miss. 1988).

A conviction for aggravated assault upon a state highway patrolman would be affirmed where, although the defendant testified that the gun he had used was a blank starter pistol, the prosecution testimony and inferences to be drawn therefrom were that the gun, which was never found, looked like a real pistol, sounded like a pistol when fired, and had been used in a threatening manner, just as a deadly weapon would be used in similar circumstances, and where at no time prior to trial did the defendant state to any police officer that the weapon used had been a starter pistol. Jackson v. State, 404 So. 2d 543, 1981 Miss. LEXIS 2221 (Miss. 1981).

A defendant was properly convicted of aggravated assault upon a law enforcement officer despite the fact that the gun used in the assault was not loaded. Wilson v. State, 395 So. 2d 957, 1981 Miss. LEXIS 1945 (Miss. 1981).

While the use of feet and fists ordinarily would not constitute the use of a deadly weapon, they can constitute a deadly weapon if used with means of force likely to produce death. Pulliam v. State, 298 So. 2d 711, 1974 Miss. LEXIS 1571 (Miss. 1974).

The question as to whether or not the instrument used is a deadly weapon the force used as likely to produce death are questions of fact for determination of the jury. Shanklin v. State, 290 So. 2d 625, 1974 Miss. LEXIS 1714 (Miss. 1974).

Testimony introduced by the state was ample and from which jury properly determined that the iron pipe used by the defendant was a deadly weapon, and that the force and manner in which it was used proved the intent of the defendant to kill and murder his victim. Shanklin v. State, 290 So. 2d 625, 1974 Miss. LEXIS 1714 (Miss. 1974).

Where a defendant held a gun that was incapable of being fired and made no attempt to use the gun as a club to strike the sheriff, and did not strike the sheriff with his hands or feet, he could not properly be convicted of assault and battery with intent to kill the sheriff. Corley v. State, 264 So. 2d 384, 1972 Miss. LEXIS 1354 (Miss. 1972).

In itself, a “shoe clad foot” is not a deadly weapon in the conventional sense, but whether in a given case it is a means or force likely to produce death, within the meaning of the section [Code 1942, § 2011], is a matter for the jury’s determination in the light of evidence as to how and in what manner it was employed. Johnson v. State, 230 So. 2d 810, 1970 Miss. LEXIS 1572 (Miss. 1970).

One may not be convicted of assault with intent to kill because he advanced with a shotgun which was so jammed that it could not be fired. Woodall v. State, 234 Miss. 759, 107 So. 2d 598, 1958 Miss. LEXIS 548 (Miss. 1958).

Since a handsaw is not enumerated as a deadly weapon in this section [Code 1942, § 2011], it was a question for the jury to determine whether a handsaw used in an assault upon another was a deadly weapon. Cobb v. State, 233 Miss. 54, 101 So. 2d 110, 1958 Miss. LEXIS 356 (Miss. 1958).

What is a deadly weapon is a question of fact for the jury. Batteast v. State, 215 Miss. 337, 60 So. 2d 814, 1952 Miss. LEXIS 570 (Miss. 1952).

Assailant is guilty only of an assault and battery, and not assault and battery with intent to kill and murder, when he deliberately uses a weapon, which is ordinarily capable of producing death, in such fashion as would not ordinarily be calculated to produce such result. Griffin v. State, 196 Miss. 528, 18 So. 2d 437, 1944 Miss. LEXIS 226 (Miss. 1944).

Assailant who deliberately struck victim on temple with closed pocket-knife, although he had ample opportunity to open the knife and to use it in a manner to kill, is guilty only of assault and battery, and not assault and battery with intent to kill and murder. Griffin v. State, 196 Miss. 528, 18 So. 2d 437, 1944 Miss. LEXIS 226 (Miss. 1944).

Under this section [Code 1942, § 2011] both the nature of the means used and the quality of the purpose are essential elements of the crime charged; the weapon must be deadly, or the means likely to produce death, and the intent must be murder. Daniels v. State, 196 Miss. 328, 17 So. 2d 793, 1944 Miss. LEXIS 196 (Miss. 1944).

In assault committed by throwing a pair of pliers from a distance of ten feet, striking prosecuting witness upon the upper lip, the evidence, in view of the circumstances, including the parties, the occasion and the means used, was insufficient to support a finding beyond a reasonable doubt that accused’s purpose was to kill and murder. Daniels v. State, 196 Miss. 328, 17 So. 2d 793, 1944 Miss. LEXIS 196 (Miss. 1944).

5. Serious bodily harm.

Defendant’s appellate claim that insufficient evidence proved aggravated assault for failure to show serious bodily injury failed because (1) defendant did not raise the objection at trial, and (2) the victim’s broken ribs were sufficient. Griffin v. State, 269 So.3d 337, 2018 Miss. App. LEXIS 187 (Miss. Ct. App. 2018), cert. denied, 260 So.3d 796, 2019 Miss. LEXIS 6 (Miss. 2019).

In connection with defendant’s conviction of aggravated assault, any error in the modification of the instruction defining serious bodily injury was harmless; no juror could have characterized the victim’s injuries as less than serious, since they included broken bones and loss of consciousness. 2017 Miss. App. LEXIS 647.

Jury could have reasonably determined that defendant’s use of teeth was sufficient to cause serious bodily harm, as the injury sustained when defendant bit off a piece of the victim’s ear was a “sharp trauma.” Shaw v. State, 139 So.3d 79, 2013 Miss. App. LEXIS 662 (Miss. Ct. App. 2013).

6. Indictment or affidavit; generally.

In an indictment alleging defendant committed aggravated domestic assault, the trial judge erred by allowing the amendment to the indictment to remove the word “serious” as related to bodily injury because the belated amendment unfairly surprised defendant by materially altering the allegations after evidence was closed and altered a defense under the original indictment. Bell v. State, — So.3d —, 2019 Miss. App. LEXIS 316 (Miss. Ct. App. July 2, 2019).

Defendant’s claim that his aggravated assault indictments were defective because they did not specify “serious” bodily injury failed, where both indictments stated that defendant caused bodily injury with a deadly weapon (specifically, a pistol). Terrell Patrick Corvette Hopper v. State, 220 So.3d 224, 2017 Miss. App. LEXIS 176 (Miss. Ct. App. 2017), cert. denied, — So.3d —, 2018 Miss. LEXIS 28 (Miss. 2018), cert. denied, — So.3d —, 2018 Miss. LEXIS 29 (Miss. 2018), cert. denied, — So.3d —, 2018 Miss. LEXIS 32 (Miss. 2018).

Argument that there was a change to the material elements of the indictment by a substantive amendment from aggravated assault to attempted aggravated assault was rejected because defendant was on notice that he could have been convicted of attempt; by virtue of this statute, defendant was clearly and fully informed that causing or attempting to cause bodily injury to another, either with a deadly weapon or by some other means likely to produce death or serious injury, constituted the crime of aggravated assault. Holmes v. State, 201 So.3d 491, 2015 Miss. App. LEXIS 668 (Miss. Ct. App. 2015).

Trial court did not err in amending an indictment, months before defendant’s trial commenced, because the State of Mississippi sought to amend the indictment to correct a scrivener’s error as it was clear from the indictment’s title and its statutory citation that the intended charge was domestic aggravated assault, rather than aggravated assault as originally stated in the indictment. Moreover, the indictment was amended as to form, rather than the substance of the offense charged. Hoskins v. State, 186 So.3d 898, 2015 Miss. App. LEXIS 424 (Miss. Ct. App. 2015), cert. denied, 186 So.3d 854, 2016 Miss. LEXIS 120 (Miss. 2016).

Circuit court erred by allowing the prosecution to proceed on an indictment that specifically charged defendant with aggravated assault under subsection (2)(a) because the indictment did not accuse defendant of causing serious bodily injury to the victim but only “bodily injury”; because the prosecution specifically indicted defendant under subsection (2)(a), it was obligated to prove that he caused serious bodily injury purposely, knowingly, or recklessly. Snowden v. State, 131 So.3d 1251, 2014 Miss. App. LEXIS 59 (Miss. Ct. App. 2014).

Where an indictment charged appellant with violating former Miss Code Ann. §97-3-7(2)(b), but the intent language in the indictment was that of former §97-3-7(2)(a), that the trial court allowed the State to amend the indictment did not entitle appellant to post-conviction relief because 1) he was given fair notice of the crimes with which he was charged; 2) he did not object to the amendments; 3) they were of form and not substance; 4) they did not prejudice him; and 5) his valid guilty plea waived any defects of form in the indictment. Montalto v. State, 119 So.3d 1087, 2013 Miss. App. LEXIS 227 (Miss. Ct. App.), cert. dismissed, 127 So.3d 1115, 2013 Miss. LEXIS 635 (Miss. 2013).

Defendant’s conviction for aggravated assault in violation of Miss. Code Ann. §97-3-7 was proper where his actions plainly, clearly, and obviously would have qualified as aggravated assault under §97-3-7(2)(a) or (b) because he used a deadly weapon and caused serious bodily injury through recklessness. While the indictment used phraseology from §97-3-7(2)(a) and (b), that blending should not have been classified necessarily as a “defect.” Johnson v. State, 910 So. 2d 1174, 2005 Miss. App. LEXIS 404 (Miss. Ct. App. 2005).

Indictment properly stated the elements of the crime of aggravated assault, even though they were not in the order defendant would have preferred. The indictment in question read that “defendant. .. as part of a common plan or scheme or as part of the same transactions or occurrence did knowingly or purposely, attempt to cause bodily injury to a police officer with a deadly weapon, an automobile. Stanley v. State, 904 So. 2d 1127, 2004 Miss. App. LEXIS 973 (Miss. Ct. App. 2004).

When the grand jury returned an indictment under Miss. Code Ann. §97-3-7(2)(b), requiring purposeful and willful and knowing actions, this stated the charge upon which defendant could be tried; when the proposed amendment was offered to allow the jury to convict under Miss. Code Ann. §97-3-7(2)(a) to include recklessly causing serious bodily injury under circumstances manifesting extreme indifference to the value of human life, there was a change of substance, prejudicing defendant, and requiring a reversal, and remand, for a new trial. McLarty v. State, 842 So. 2d 590, 2003 Miss. App. LEXIS 295 (Miss. Ct. App. 2003).

Attempted assault falls within the meaning of assault, and in the context of defendant’s variance argument between the indictment and the proof, whether defendant’s indictment read “assault” or “attempted assault” made no difference as it was the same crime; moreover, the indictment cited Miss. Code Ann. §97-3-7(1), the applicable statute. Brown v. State, 852 So. 2d 607, 2003 Miss. App. LEXIS 10 (Miss. Ct. App. 2003).

Where the defendant was indicted for aggravated assault under subsection (2) of this section, but neither paragraph (a) nor (b) was specified, the statutory language was wholly included by reference in the indictment and the indictment was not narrowly drawn to preclude the state from arguing a pool stick was used as a deadly weapon. Rushing v. State, 1999 Miss. App. LEXIS 350 (Miss. Ct. App. June 22, 1999).

An indictment properly charged the defendant with simple assault under this section, even though the indictment contained the word “feloniously” which does not appear in the statute. Reining v. State, 606 So. 2d 1098, 1992 Miss. LEXIS 542 (Miss. 1992).

In a prosecution for aggravated assault under this section, the defendant’s conviction would be reversed where the grand jury returned the indictment under subsection (2)(b) of this section, which requires purposeful, willful and knowing actions, on the morning of the trial the State moved to amend the indictment to allow the jury to convict under subsection (2)(a) of this section, which requires only that the defendant recklessly cause serious bodily injury under circumstances manifesting extreme indifference to the value of human life, and, though there was no order allowing the amendment, the jury instructions clearly reflected the new element which was not contained in the original indictment and it was apparently that part of the instruction upon which the jury returned its verdict. The proposed amendment was a change of substance, rather than form, and therefore the court had no power to amend the indictment without the concurrence of the grand jury. Quick v. State, 569 So. 2d 1197, 1990 Miss. LEXIS 662 (Miss. 1990).

A multiple-count indictment, charging murder and aggravated assault, was permissible where both the murder and the aggravated assault arose from a single fusillade, the defendant presented the same self-defense defense to the 2 charges, almost all of the evidence admissible against the defendant on the murder count was also admissible against him on the assault count and visa-versa, and no legally cognizable prejudice could be said to have resulted from the consolidation at trial of the 2 charges. Blanks v. State, 542 So. 2d 222, 1989 Miss. LEXIS 165 (Miss. 1989).

A court committed reversible error in permitting the State to amend an indictment charging aggravated assault at the close of the State’s case, at a time when the defendant had indicated his desire to file a motion for a directed verdict, from the charge “by shooting the [victim] in the head” to that of “a pistol, a means likely to produce serious bodily harm.” Had the court not permitted the amendment of the indictment, the defendant would have been entitled to a directed verdict of not guilty on the aggravated assault charge of shooting the victim in the head with the pistol since the evidence was uncontradicted that the gun accidentally fired and that the victim was not wounded by the firing of the weapon. Griffin v. State, 540 So. 2d 17, 1989 Miss. LEXIS 144 (Miss. 1989).

Indictment labeled “aggravated assault” which charges that defendant caused “serious bodily injury” and that defendant beat victim in manner likely to cause “serious bodily injury” and which includes correct section number (subsection (2)(a) of this section) for aggravated assault sufficiently affords defendant and defendant’s attorney notice in fact that defendant is being prosecuted for aggravated assault. Harbin v. State, 478 So. 2d 796, 1985 Miss. LEXIS 2261 (Miss. 1985).

Though an indictment for simple assault contained some language from the portion of the statute defining aggravated assault, the indictment was not duplicitous where the language was not sufficient to charge any offense under the aggravated assault provisions and thus only one offense was charged. Toliver v. State, 337 So. 2d 1274, 1976 Miss. LEXIS 1616 (Miss. 1976).

In a prosecution for resisting arrest, an indictment charging that the defendant assaulted a deputy sheriff, resisted the execution of legal process upon himself by the deputy sheriff, and shot the deputy sheriff while the latter was attempting to arrest the defendant, did not charge separate and distinct offenses; each action described in the indictment was but a part of a single episode. Maroone v. State, 317 So. 2d 25, 1975 Miss. LEXIS 1722 (Miss. 1975).

An indictment is not defective because it does not state definitely the time at which the offense was committed. Washington v. State, 222 Miss. 782, 77 So. 2d 260, 1955 Miss. LEXIS 663 (Miss. 1955).

An indictment which stated that the defendant committed assault and battery upon a minor child of the age of nine years, with force and means likely to have produced death by beating and striking her with a cowhide belt and with a large switch or stick, and by pulling her hair out by the roots, and by burning her leg with cigarette lighter, and by holding her by her feet and by striking her head against the floor and wall, and by mashing or snapping her head with his feet, was not demurrable upon the ground that the several acts of violence alleged constituted separate and distinct offenses. McNally v. State, 213 Miss. 356, 56 So. 2d 834, 1952 Miss. LEXIS 374 (Miss. 1952).

Where name of victim is used in indictment, it is unnecessary to allege that he is a human being. Hughes v. State, 207 Miss. 594, 42 So. 2d 805, 1949 Miss. LEXIS 372 (Miss. 1949).

Permitting amendment of indictment charging assault with intent to murder, to charge assault and battery with intent to murder, held not reversible error. Sauer v. State, 166 Miss. 507, 144 So. 225, 1932 Miss. LEXIS 307 (Miss. 1932).

Indictment charging assault with deadly weapon with intent to kill and murder must allege felonious intent. State v. May, 147 Miss. 79, 112 So. 866, 1927 Miss. LEXIS 314 (Miss. 1927).

Indictment in the language of Code 1906, § 1359 cannot be sustained under Code 1892, § 967, relative to assault, etc. Barton v. State, 94 Miss. 375, 47 So. 521, 1908 Miss. LEXIS 12 (Miss. 1908).

Indictment held not objectionable as duplicitous in charging assault and battery in attempt to kill. Jimerson v. State, 93 Miss. 685, 46 So. 948, 1908 Miss. LEXIS 115 (Miss. 1908).

7. —Sufficiency of.

Vacating of defendant’s sentence and remand for resentencing was appropriate because defendant was improperly sentenced under a subsection not properly charged in the indictment. Defendant was not on notice that defendant would be convicted and sentenced for simple assault on emergency medical personnel, an aggravating circumstance, but was on notice that defendant was being tried for simple assault on medical personnel. Hawkins v. State, 255 So.3d 1264, 2018 Miss. LEXIS 431 (Miss. 2018).

Indictments for aggravated assault were not defective because defendant was alleged to have used a deadly weapon, a pistol, in each of defendant’s aggravated assaults. That was sufficient as the indictment was not required to have alternatively alleged “or other means likely to produce death or serious bodily injury.” McDonald v. State, 204 So.3d 780, 2016 Miss. App. LEXIS 583 (Miss. Ct. App.), cert. denied, 205 So.3d 1085, 2016 Miss. LEXIS 498 (Miss. 2016).

Subsections (1)(a)(i), (ii), and (iii) are not mutually exclusive, and the State is not required to distinguish the subsections in every indictment so long as the indictment is sufficient to inform the defendant of the claims against him or her; if an indictment is not rendered insufficient where it intermingles terms from both the simple and aggravated assault sections, we decline to find that an indictment is insufficient where it intermingles terms from subsections under simple assault only. State v. Hawkins, 145 So.3d 636, 2014 Miss. LEXIS 406 (Miss. 2014).

While the language used in the indictment could have been cleaner, the State was not required to distinguish the subsection under which it brought the charges because subsections (1)(a)(i), (ii), and (iii) were not mutually exclusive; although the indictment mixes the concept of willfulness, or intent, with negligence, the indictment clearly charged defendant with simple assault of a vulnerable person and specified the exact conduct charged. State v. Hawkins, 145 So.3d 636, 2014 Miss. LEXIS 406 (Miss. 2014).

Word “willfully” in the indictment was surplusage because the recitation of the relevant facts showed that defendant’s conduct was negligent; comparing the indictment to the statute, defendant could have determined that the charge was based on her negligence, and she should have been able to prepare her defense adequately. State v. Hawkins, 145 So.3d 636, 2014 Miss. LEXIS 406 (Miss. 2014).

Indictment was sufficient to fully notify defendant of the nature and cause of the accusation against her because it included the essential facts constituting the offense charged, as it described what actions defendant took that led to the victim’s injuries, and the indictment clearly stated that defendant was charged with simple assault of a vulnerable person. State v. Hawkins, 145 So.3d 636, 2014 Miss. LEXIS 406 (Miss. 2014).

In a case involving assault of a law enforcement officer, an argument that the indictment was defective based on a failure to state that the officer was acting within the scope of his duty, office, or employment was rejected; both the heading and the body of the indictment provided that defendant was being charged with aggravated assault on a law enforcement officer and that the maximum prison term for the crime was thirty years. Moreover, the language of the indictment tracked the statutory language, and a reading of the indictment as a whole gave defendant fair notice of the charge against him so he could prepare an adequate defense and avoid unfair surprise or the threat of double jeopardy. Townsend v. State, 188 So.3d 616, 2016 Miss. App. LEXIS 208 (Miss. Ct. App. 2016).

Trial court did not err by denying defendant’s motion for postconviction relief because the fact that indictment set forth Miss. Code Ann. §93-3-7 for count I instead of the statute for aggravated assault upon a law enforcement officer, this section, did not support defendant’s claim that he believed he was pleading guilty to a noncriminal offense under §93-3-7, as his plea petition showed that he acknowledged under oath that he was pleading guilty to aggravated assault. In addition, the trial court correctly informed defendant of the authorized statutory scheme for aggravated assault upon a law enforcement officer. Williams v. State, 152 So.3d 349, 2014 Miss. App. LEXIS 324 (Miss. Ct. App.), cert. dismissed, 145 So.3d 674, 2014 Miss. LEXIS 458 (Miss. 2014), cert. dismissed, 151 So.3d 1017, 2014 Miss. LEXIS 520 (Miss. 2014).

Defendant’s indictments for culpable-negligence manslaughter and aggravated assault were not deficient because the indictments contained the essential elements of the crimes and fairly informed defendant of the charges to allow defendant to prepare a defense. Hardy v. State, 137 So.3d 289, 2014 Miss. LEXIS 227 (Miss. 2014).

In a 28 U.S.C.S. § 2254 proceeding which a pro se state inmate argued that his indictment was defective because it did not contain the word serious as required by Miss. Code Ann. §97-3-7(2)(a), that claim was examined and rejected by the Mississippi Court of Appeals, and provided no basis for habeas relief. White v. Epps, 2010 U.S. Dist. LEXIS 33009 (S.D. Miss. Apr. 2, 2010).

Defendant’s argument that his convictions for aggravated assault on law enforcement officers should be reversed and remanded or that he should be resentenced on the lesser charge of simple assault on law enforcement officers was without merit. The heading of defendant’s indictment stated that he was being charged with aggravated assault on a law enforcement officer and the counts stated that statute under which he was charged; thus, it was clear from the indictment that he injured the two police officers with a deadly weapon. Mayers v. State, 42 So.3d 33, 2010 Miss. App. LEXIS 88 (Miss. Ct. App.), cert. denied, 42 So.3d 24, 2010 Miss. LEXIS 437 (Miss. 2010).

Indictment for aggravated assault, Miss. Code Ann. §97-3-7 (Rev. 2006), was not fatally defective because it did not need to specify an overt act of attempt where defendant was not indicted under the general attempt statute, Miss. Code Ann. §97-1-7 (Rev. 2006). Thus, the previous decision in Joshua v. State, 445 So. 2d 221 (Miss. 1984), which held that that the separate elements of attempt had to be set out in a criminal indictment for aggravated assault, was expressly overruled. Brooks v. State, 18 So.3d 833, 2009 Miss. LEXIS 471 (Miss. 2009).

Where the evidence showed that appellant used a deadly weapon to strike his current spouse and to shoot the other victim, the State showed intent to cause bodily injury with a deadly weapon. The indictment charging him with aggravated assault under Miss. Code Ann. §97-3-7(2)(b) and aggravated domestic violence under Miss. Code Ann. §97-3-7(4) was not defective; defendant pleaded guilty to both counts. McComb v. State, 986 So. 2d 1087, 2008 Miss. App. LEXIS 410 (Miss. Ct. App. 2008), cert. dismissed, 36 So.3d 455, 2010 Miss. LEXIS 285 (Miss. 2010).

Aggravated assault indictment was not defective for failing to allege serious bodily injury because the injury in question was inflicted with a deadly weapon. Crawford v. State, 972 So. 2d 44, 2008 Miss. App. LEXIS 5 (Miss. Ct. App. 2008).

Motion for post-conviction relief was denied based on an amended indictment in an aggravated assault case because the failure to include the phrase “thereby manifesting extreme indifference to the value of human life” was not erroneous since this was not an element of the crime; moreover, all of the requirements for indictments under Miss. Unif. Cir. & Cty. R. 7.06 were met. Nichols v. State, 955 So. 2d 962, 2007 Miss. App. LEXIS 279 (Miss. Ct. App. 2007).

Indictment against defendant was sufficient as it clearly set out the essential elements of aggravated assault and specifically referred to simple assault as a lesser crime; there was no requirement that the State prove intent to cause serious bodily injury when defendant was charged pursuant to Miss. Code Ann. §97-3-7(2)(b), and the State put forth sufficient evidence that defendant purposefully or knowingly caused bodily injury to the victim with a deadly weapon. Russell v. State, 924 So. 2d 604, 2006 Miss. App. LEXIS 167 (Miss. Ct. App. 2006).

Indictment alleged that defendant attempted to cause bodily injury to the victim by firing a gun at her, without any legal justification. The indictment tracked the statutory language, and was sufficient to charge defendant with the crime of aggravated assault. Brewer v. State, 920 So. 2d 546, 2006 Miss. App. LEXIS 79 (Miss. Ct. App. 2006).

Defendant’s indictment charged defendant with aggravated assault under Miss. Code Ann. §97-3-7(2)(b); no serious injury was required for a §97-3-7(2)(b) charge, such that the indictment issued against defendant was sufficient. Mason v. State, 867 So. 2d 1058, 2004 Miss. App. LEXIS 213 (Miss. Ct. App. 2004).

Indictment for aggravated assault properly charged one of the means in which to commit the crime; the failure of the indictment to charge other means was appropriate. Sanderson v. State, 881 So. 2d 878, 2004 Miss. App. LEXIS 35 (Miss. Ct. App.), aff'd in part and rev'd in part, 883 So. 2d 558, 2004 Miss. LEXIS 1199 (Miss. 2004).

State did not fail to prove that defendant’s action in striking one of the police officers attempting to restrain and subdue him was willful and intentional as charged in the indictment; there was nothing in the record to suggest that defendant’s conclusion that he struck the officer as the result of an involuntary reaction to being sprayed with mace was the only reasonable interpretation of evidence that jurors could possibly have drawn. Griffin v. State, 872 So. 2d 90, 2004 Miss. App. LEXIS 373 (Miss. Ct. App. 2004).

State did not err in failing to include recklessness language in the indictment because Miss. Code Ann. §97-3-7(2)(a) is written in the disjunctive (either an accused acted purposely and knowingly or he acted recklessly with indifference to the value of human life); by failing to include the recklessness language in the indictment, the State did not err but was limiting itself to proving that defendant had acted purposefully as opposed to recklessly. Parisie v. State, 848 So. 2d 880, 2002 Miss. App. LEXIS 873 (Miss. Ct. App. 2002).

An indictment for aggravated assault was sufficient where it included the seven required elements and provided adequate notice of the offenses charged. Holmes v. State, 754 So. 2d 529, 1999 Miss. App. LEXIS 679 (Miss. Ct. App. 1999).

An indictment for aggravated assault was insufficient where it asserted that the defendant willfully, unlawfully, knowingly, feloniously, and purposely caused or attempted to cause bodily injury to another with his fist by striking her in violation of subsection (2) of this section; the fact that the state was granted leave to amend the indictment to insert the word “serious” before the phrase “bodily injury” was insufficient to cure the indictment. Hawthorne v. State, 751 So. 2d 1090, 1999 Miss. App. LEXIS 457 (Miss. Ct. App. 1999).

Indictment which tracks language of aggravated assault statute (this section) is legally sufficient notwithstanding failure to allege overt acts evidencing intent and action required for offense. Ward v. State, 479 So. 2d 713, 1985 Miss. LEXIS 2302 (Miss. 1985).

An indictment charging defendant with aggravated assault, apparently in violation of subsection (2) of this section, was substantially defective in that it did not set out any alleged overt act whatsoever regarding defendant’s alleged attempt to cause bodily harm to a patrolman, and, thus, his failure to file a demurrer under the provisions of §99-7-21 did not prevent him from challenging the indictment. Joshua v. State, 445 So. 2d 221, 1984 Miss. LEXIS 1582 (Miss. 1984), overruled, Brooks v. State, 18 So.3d 833, 2009 Miss. LEXIS 471 (Miss. 2009).

An indictment charging defendant unlawfully, wilfully, and feloniously caused serious bodily injuries by driving a vehicle recklessly under the circumstances manifesting extreme indifference to the value of human life sufficiently stated an offense under subsection (2) of this section. Gray v. State, 427 So. 2d 1363, 1983 Miss. LEXIS 2351 (Miss. 1983).

In a prosecution for aggravated assault upon a police officer, the indictment was sufficient where it stated facts clearly showing aggravated rather than simple assault and indicated in unambiguous language that the victim was a police officer acting within the course of his employment. Norman v. State, 385 So. 2d 1298, 1980 Miss. LEXIS 2008 (Miss. 1980).

The trial court properly sentenced defendant for a felony following conviction for aggravated assault, notwithstanding the discretion given the court by this section for imprisonment in the county jail or penitentiary; the indictment charging defendant with having knowingly and purposely caused bodily injury to another “with a deadly weapon” clearly categorized the assault as an aggravated assault rather than a simple assault, even though the indictment did not use the word “feloniously”. Mississippi State Tax Com. v. Reynolds, 351 So. 2d 326, 1977 Miss. LEXIS 1927 (Miss. 1977).

Under an indictment alleging aggravated assault upon a police officer acting “within the scope of his duty”, the evidence was sufficient to prove scope of duty, where defendant assaulted a person whom he recognized as a law enforcement officer engaged in assisting the arresting officer in placing defendant into custody, notwithstanding the fact that the initial arrest was without probable cause. Watkins v. State, 350 So. 2d 1384, 1977 Miss. LEXIS 2254 (Miss. 1977).

Indictment charging shooting at another with intent to kill and murder and alleging that shooting was done unlawfully, with malice aforethought, feloniously and wilfully with intent to kill and murder, is sufficient to charge that shooting was done with felonious intent to kill and murder and properly charges an offense of assault and battery with intent to kill and murder. Bone v. State, 207 Miss. 20, 41 So. 2d 347, 1949 Miss. LEXIS 314 (Miss. 1949).

An indictment charging an assault with a deadly weapon “with the intent and in the attempt to kill and murder” charged an offense with the intent to kill and murder under this section [Code 1942, § 2011] and not an offense under Code 1930, § 793 (Code 1942, § 2017). Norwood v. State, 182 Miss. 898, 183 So. 523, 1938 Miss. LEXIS 205 (Miss. 1938).

Indictment charging wilful, unlawful, felonious, and malicious assault and battery upon one in crowd with felonious intent to kill held to sufficiently charge assault and battery with intent to murder, as against contention that it did not charge intent “to kill and murder” some human situated in building, but merely charged intent “to kill.” White v. State, 169 Miss. 332, 153 So. 387, 1934 Miss. LEXIS 63 (Miss. 1934).

Where record indicated defendant was aware he was being prosecuted under statute making robbery, or attempt at robbery, capital offense under certain conditions, indictment, though awkwardly worded, was sufficient. Hall v. State, 166 Miss. 331, 148 So. 793, 1933 Miss. LEXIS 399 (Miss. 1933).

Affidavit charging accused with striking officer in resisting arrest held to sufficiently charge assault and battery. Martin v. Laurel, 106 Miss. 357, 63 So. 670, 1913 Miss. LEXIS 141 (Miss. 1913).

Indictment for attempted rape held to charge an assault with intent to commit felony, constituting a misdemeanor at common law. Moore v. State, 102 Miss. 148, 59 So. 3, 1912 Miss. LEXIS 39 (Miss. 1912).

An indictment charging that defendant assaulted and beat C with “leather bridle reins” while armed with a pistol, with intent to intimidate C and prevent him from defending himself while not good under Code 1906, § 1044, is good as one for common assault and battery. State v. Spigener, 96 Miss. 597, 50 So. 977, 1910 Miss. LEXIS 149 (Miss. 1910).

Held indictment should charge that accused shot into wagon wherein was D and other persons, with felonious intent of killing one or more of them, not caring which and in fact shot D. Gentry v. State, 92 Miss. 141, 45 So. 721, 1907 Miss. LEXIS 26 (Miss. 1907).

Indictment is sufficient if it avers that the assault was committed with a deadly weapon. Canterberry v. State, 90 Miss. 279, 43 So. 678, 1907 Miss. LEXIS 88 (Miss. 1907).

8. Defenses; generally.

In defendant’s trial on a charge of misdemeanor domestic violence, pursuant to Miss. Code Ann. §97-3-7(3), her defense of necessity failed because defendant did not bite the victim, her husband, to avoid harm, but instead, defendant bit him to free herself to leave the home; there was no evidence to suggest that defendant felt she was in imminent danger of death or serious bodily harm to others. Anderson v. State, 102 So.3d 304, 2012 Miss. App. LEXIS 510 (Miss. Ct. App. 2012), cert. dismissed, 105 So.3d 326, 2013 Miss. LEXIS 37 (Miss. 2013).

Action in the heat of passion is not a defense to aggravated assault. Brown v. State, 749 So. 2d 204, 1999 Miss. App. LEXIS 497 (Miss. Ct. App. 1999).

Consent of the victim is irrelevant in a trial for simple assault. Durr v. State, 722 So. 2d 134, 1998 Miss. LEXIS 439 (Miss. 1998).

A defendant waived and forfeited his right to assert the statute of limitations under §99-1-5 as a defense to a charge of aggravated assault when he failed to assert it in the lower court and thereafter entered a voluntary and counseled plea of guilty to the charge. Conerly v. State, 607 So. 2d 1153, 1992 Miss. LEXIS 585 (Miss. 1992).

Even if an instruction to the effect that if the jury should find that the accused was intoxicated at the time of the difficulty it must be satisfied beyond a reasonable doubt that such intoxication did not incapacitate him from forming a deliberate design to kill the victim should be given where the evidence justifies it, it was properly refused where the accused’s testimony established that he was not drunk at the time of committing an assault and battery with intent to kill. Wixon v. State, 229 Miss. 430, 90 So. 2d 859, 1956 Miss. LEXIS 622 (Miss. 1956).

State’s instruction that voluntary drunkenness was no excuse or justification for the commission of a crime in that one could not take advantage of a situation in which he had placed himself voluntarily by being drunk or drinking, and if the jury believed beyond a reasonable doubt that defendant, with felonious intent and malice aforethought to kill, shot and wounded the victim, it should find defendant guilty even though they might believe that defendant had been drunk or drinking at the time, was not misleading as assuming that a crime had been committed, nor was it misleading in any other particular. Wixon v. State, 229 Miss. 430, 90 So. 2d 859, 1956 Miss. LEXIS 622 (Miss. 1956).

The shooting at a twelve-year-old boy by a sheriff and his posse who were seeking generally to take into custody persons whom they believed to have been present when a felony was committed justified the boy’s brother in returning the fire. Craft v. State, 202 Miss. 43, 30 So. 2d 414, 1947 Miss. LEXIS 239 (Miss. 1947).

Husband cannot inflict corporal punishment on wife. Gross v. State, 135 Miss. 624, 100 So. 177, 1924 Miss. LEXIS 50 (Miss. 1924).

9. — Insanity.

Even though counsel was deficient in failing to pursue an insanity defense in an aggravated assault case, defendant was not prejudiced thereby because the M’Naghten test was not satisfied; defendant understood the consequences of his actions. Defendant stated that he shot his stepfather for “messing with his mother’s mind.” Epps v. State, 984 So. 2d 1042, 2008 Miss. App. LEXIS 111 (Miss. Ct. App. 2008).

10. — Self-defense.

When defendant was charged with aggravated assault, defendant did not show defendant acted in self-defense because defendant did not explain why defendant (1) feared for defendant’s life, (2) pursued the victim, or (3) fired a shot after a fight ended. Tutwiler v. State, 197 So.3d 418, 2015 Miss. App. LEXIS 650 (Miss. Ct. App. 2015), cert. denied, 202 So.3d 613, 2016 Miss. LEXIS 352 (Miss. 2016).

In defendant’s trial on a charge of misdemeanor domestic violence, pursuant to Miss. Code Ann. §97-3-7(3), her claim of self-defense failed because there was no evidence to suggest that defendant feared the victim, her husband, would hurt her or cause her some great bodily harm; defendant’s actions were made to escape the victim’s restraint and leave the home and the evidence supported a conclusion that defendant presented a threat of danger and great bodily harm to herself and others. Anderson v. State, 102 So.3d 304, 2012 Miss. App. LEXIS 510 (Miss. Ct. App. 2012), cert. dismissed, 105 So.3d 326, 2013 Miss. LEXIS 37 (Miss. 2013).

Defendant’s convictions for aggravated assault in violation of Miss. Code Ann. §97-3-7(2) were improper because the evidence indicated that defendant was acting in necessary self-defense when the projectiles from his firearm struck the bystanders. Defendant had no unlawful intent to cause bodily injury to the bystanders with a deadly weapon and he did not act recklessly under circumstances manifesting extreme indifference to the value of human life; at that moment in the conflict, defendant was attempting to preserve his own life. Rogers v. State, 994 So. 2d 792, 2008 Miss. App. LEXIS 170 (Miss. Ct. App.), cert. denied, 998 So. 2d 1010, 2008 Miss. LEXIS 668 (Miss. 2008).

State was not required to prove that defendant was not acting with self defense in order to prove a conviction for aggravated assault under Miss. Code Ann. §97-3-7(2)(b). Beyers v. State, 930 So. 2d 456, 2006 Miss. App. LEXIS 397 (Miss. Ct. App. 2006).

To make an assault justifiable on the grounds of self-defense, danger to the defendant must be either actual, present and urgent, or the defendant must have reasonable grounds to apprehend a design on the part of the victim to kill, or to do him or her some great bodily harm, and there must be imminent danger of such design being accomplished. On the other hand, if a person provokes a difficulty, arming himself or herself in advance, and intending, if necessary, to use the weapon and overcome his or her adversary, that person becomes the aggressor and is deprived of the right of self-defense. Anderson v. State, 571 So. 2d 961, 1990 Miss. LEXIS 717 (Miss. 1990).

Jury instruction was proper where it paralleled statutory language of this section; therefore, jury could have believed all of defendants’ story, but not found self-defense proper in this case where 3 people beat admittedly unarmed man. Johnson v. State, 512 So. 2d 1246, 1987 Miss. LEXIS 2703 (Miss.), cert. denied, 484 U.S. 968, 108 S. Ct. 462, 98 L. Ed. 2d 402, 1987 U.S. LEXIS 4990 (U.S. 1987), overruled in part, Smith v. State, 986 So. 2d 290, 2008 Miss. LEXIS 339 (Miss. 2008).

Testimony of aggravated assault defendant, whose sole defense is self defense, as to efforts, prior to alleged assault, to obtain assistance of law enforcement officers in response to threats against defendant by alleged victim are admissible as being highly relevant to defendant’s state of mind leading up to alleged assault. Brown v. State, 464 So. 2d 516, 1985 Miss. LEXIS 1925 (Miss. 1985).

In an action for damages which arose when the decedent was shot and killed by a deputy sheriff, the killing would be justifiable under the provisions of the justifiable homicide statute where it was done in self-defense; the shooting was also necessary under the circumstances in order to preserve the peace and to apprehend the decedent, who had fired two rifles at the officers while resisting arrest. Coghlan v. Phillips, 447 F. Supp. 21, 1977 U.S. Dist. LEXIS 16951 (S.D. Miss. 1977), aff'd, 567 F.2d 652, 1978 U.S. App. LEXIS 12668 (5th Cir. Miss. 1978).

Trial court’s refusal to grant a continuance to a father, who is charged with shooting a 17-year-old boy for slapping his daughter, was erroneous, where the affidavit in support of the motion for continuance showed that the accused’s wife, a witness to the shooting, was hospitalized and averred that she would testify that the victim was the aggressor to the affray and that the accused shot in apparent self-defense, and it further appeared that as a result of the absence of his wife as a witness, the accused was compelled to testify in his own behalf whether he desired to do so or not, since otherwise the state’s case would have stood undisputed. Ivy v. State, 229 Miss. 491, 91 So. 2d 521, 1956 Miss. LEXIS 630 (Miss. 1956).

Accused was not guilty of assault and battery with intent to kill sheriff were sheriff made an unlawful arrest without warrant by entering accused’s own backyard, the accused did not use any more force than necessary in resisting arrest when she scuffled with the sheriff who as a result sustained a slight cut on arm, and where force used did not prevent the unlawful arrest. Hartfield v. State, 209 Miss. 787, 48 So. 2d 507, 1950 Miss. LEXIS 443 (Miss. 1950).

One being shot at by a sheriff and his posse who were seeking generally to take into custody persons whom they believed to have been present when a felony was committed had a right to return the fire. Craft v. State, 202 Miss. 43, 30 So. 2d 414, 1947 Miss. LEXIS 239 (Miss. 1947).

Acts of Negro in self-defense to an aggression by a white man did not warrant conviction for assault and battery. Nichols v. State, 198 Miss. 821, 24 So. 2d 14, 1945 Miss. LEXIS 253 (Miss. 1945).

If plaintiff approached defendant with menacing looks and drawn fists and defendant struck plaintiff to prevent assault and only struck until he overcame threatened assault, blows were justified. Stamps v. Polk, 143 Miss. 551, 108 So. 729, 1926 Miss. LEXIS 292 (Miss. 1926).

Where accused, in prosecuting for assault and battery, insulted other party who struck first blow, instruction of self-defense was error. Wicker v. State, 107 Miss. 690, 65 So. 885, 1914 Miss. LEXIS 133 (Miss. 1914).

Defendant was not precluded from claiming self-defense because after previous difficulty he had armed himself and sought out his adversary to renew the conflict, where it appeared that the defendant shot and wounded his adversary after the adversary had fired upon him, and the shooting was not in pursuance of an original intent to kill. Garner v. State, 93 Miss. 843, 47 So. 500, 1908 Miss. LEXIS 148 (Miss. 1908).

Held that instruction on self-defense should not be modified by words “without fault in himself in bringing on the difficulty”. Garner v. State, 93 Miss. 843, 47 So. 500, 1908 Miss. LEXIS 148 (Miss. 1908).

11. —Civil suit as bar to prosecution.

The prosecutor in an indictment for an assault with intent to kill, who has commenced a civil suit for the injury, will not be compelled to elect or abandon the civil suit or the prosecution; both may be sustained. Wheatley v. Thorn, 23 Miss. 62, 1851 Miss. LEXIS 5 (Miss. 1851).

12. Double jeopardy.

Double jeopardy barred defendant’s second conviction for aggravated assault because the two convictions arose of the same occurrence, as the striking and strangling of the victim occurred during the same assault. May v. State, 267 So.3d 803, 2018 Miss. App. LEXIS 632 (Miss. Ct. App. 2018), cert. denied, 267 So.3d 280, 2019 Miss. LEXIS 169 (Miss. 2019).

Trial court did not err in denying petitioner post-conviction relief because he was not subjected to double jeopardy since the two crimes for which petitioner was indicted and to which he pleaded guilty, armed robbery and aggravated assault, required proof of an element which the other did not; petitioner could have been found guilty of armed robbery without having shot the victim, and he could have been found guilty of aggravated assault without taking the victim’s property. Owens v. State, 150 So.3d 114, 2014 Miss. App. LEXIS 608 (Miss. Ct. App. 2014).

Defendant was not subject to double jeopardy, even though defendant was issued a citation for resisting arrest and was later convicted of simple assault on a law enforcement officer, where a clear reading of the statutes established that the two offenses contained an element that was lacking from the other. Roncali v. State, 980 So. 2d 959, 2008 Miss. App. LEXIS 223 (Miss. Ct. App. 2008).

Defendant’s claim of double jeopardy, pursuant to the Fifth Amendment, was without merit where application of the Blockburger test revealed that elements of each of the crimes of shooting into a vehicle, Miss. Code Ann. §97-25-47, and aggravated assault, Miss. Code Ann. §97-3-7(2) were not contained in the other. Graves v. State, 969 So. 2d 845, 2007 Miss. LEXIS 676 (Miss. 2007).

Inmate’s convictions for aggravated assault and aggravated robbery did not violate his Fifth Amendment right to be free from double jeopardy because even though the charges arose from the same set of facts, the two charges had different elements that the State needed to prove and one was not a lesser-included offense of the other. Thomas v. State, 930 So. 2d 1264, 2005 Miss. App. LEXIS 993 (Miss. Ct. App. 2005).

Where defendant robbed the victim, a store clerk, at gunpoint, and pistol whipped the victim numerous times, the offenses of robbery with the use of a deadly weapon, and aggravated assault, clearly required different elements of proof, and double jeopardy did not apply. Houston v. State, 887 So. 2d 808, 2004 Miss. App. LEXIS 451 (Miss. Ct. App.), cert. denied, 888 So. 2d 1177, 2004 Miss. LEXIS 1448 (Miss. 2004).

Defendant’s conviction for aggravated assault on a law enforcement officer, pursuant to Miss. Code Ann. §97-3-7(2)(b) was not obtained in violation of the Double Jeopardy Clause as conviction on that charge required proof of at least one element not present in the resisting arrest charge, Miss. Code Ann. §97-9-73, on which defendant had earlier been convicted. Powell v. State, 806 So. 2d 1069, 2001 Miss. LEXIS 271 (Miss. 2001).

13. Evidence; generally.

Verdict finding defendant guilty of aggravated assault and firearm possession by a felon was not so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice because the victim testified that when she entered the house, the culprit, whom she identified as defendant, came out of a backroom, pointed a long gun at her, and told her to “hold it”; she heard a click from the gun and ran from the house for help; she testified about the gun he aimed at her and its size; and the jury heard from the police regarding their pursuit and eventual capture of defendant and about the victim’s identification of defendant as the burglar. Johnson v. State, 264 So.3d 822, 2018 Miss. App. LEXIS 546 (Miss. Ct. App. 2018).

Trial court did not abuse its discretion in denying defendant’s motion for a new trial because the jury did not believe defendant’s version of the attack; even though defendant’s version contained some inconsistencies and contradictions, the weight of the evidence, taken in the light most favorable to the verdict, supported the verdict of guilty for aggravated assault. Kennedy v. State, 236 So.3d 829, 2017 Miss. App. LEXIS 575 (Miss. Ct. App. 2017).

Verdict in an aggravated assault upon a police officer case was not so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice because defendant’s intentional actions of hitting and kicking the officer numerous times, which caused bruising, black eyes, and a broken nose, were likely to produce serious bodily harm. Graham v. State, 151 So.3d 268, 2014 Miss. App. LEXIS 663 (Miss. Ct. App. 2014).

Defendant’s convictions for murder and aggravated assault, under Miss. Code Ann. §§97-3-19(1),97-3-7(2), were not against the weight of the evidence because allowing the verdict to stand would not have sanctioned an unconscionable injustice because there was nothing that would have led an appellate court to disagree with a jury’s assessment of the conflicting testimony with which it was presented. Readus v. State, 997 So. 2d 941, 2008 Miss. App. LEXIS 249 (Miss. Ct. App. 2008), cert. denied, 999 So. 2d 852, 2009 Miss. LEXIS 27 (Miss. 2009).

Conviction for aggravated assault under Miss. Code Ann. §97-3-7(2)(b) was supported by the weight of the evidence because witnesses testified that defendant was actively engaged in a drunken fight, a friend of defendant’s testified that deadly force was not necessary, defendant admitted wielding a knife, no evidence was presented that the injuries were from another source, and someone observed defendant stab a victim after blinding him with a shirt; therefore, a new trial was not warranted. Lackie v. State, 971 So. 2d 601, 2007 Miss. App. LEXIS 293 (Miss. Ct. App.), cert. denied, 973 So. 2d 244, 2007 Miss. LEXIS 683 (Miss. 2007).

Evidence substantially supported defendant’s guilt in a simple assault of a police officer case where defendant did not dispute that the officer was a law enforcement officer who was acting in the scope of his duty on the night of the incident and the officer testified that defendant struck him behind the head with defendant’s fist, while his back was turned to defendant; the officer also testified that he sustained a cut from defendant’s blow. A witness testified that she saw defendant hit the officer toward the back of the neck with his fist or hand after the officer ordered defendant to stand back from the women defendant was pursuing and that the attack was unprovoked. Enlow v. State, 878 So. 2d 1111, 2004 Miss. App. LEXIS 710 (Miss. Ct. App.), cert. denied, 888 So. 2d 1177, 2004 Miss. LEXIS 1479 (Miss. 2004).

Defendant was properly convicted of aggravated assault where her husband was attacked in the middle of the night in the trailer in which he lived. Favre v. State, 877 So. 2d 554, 2004 Miss. App. LEXIS 656 (Miss. Ct. App. 2004).

State’s identification of defendant consisted of the victim’s eyewitness identification from a photo line-up and in-court identification, and a videotape of the robbery which showed the robber; moreover, the trial court instructed the jury to consider Neil v. Biggers to determine whether the identification made by the victim was credible and reliable, and the jury resolved the issue of credibility in favor of the State’s witnesses. Thus, the evidence was sufficient to sustain defendant’s convictions for robbery with the use of a deadly weapon, and aggravated assault. Houston v. State, 887 So. 2d 808, 2004 Miss. App. LEXIS 451 (Miss. Ct. App.), cert. denied, 888 So. 2d 1177, 2004 Miss. LEXIS 1448 (Miss. 2004).

Evidence was sufficient to support defendant’s aggravated assault conviction where numerous witnesses testified that defendant attacked the victim with a metal object, that the victim was unarmed and did not attempt to fight back, that onlookers attempted to stop defendant, and that defendant continued to beat the victim after he was on the ground. Although defendant attempted to make a case of self-defense, reasonable and fair-minded jurors could have found defendant guilty. Hoye v. State, 867 So. 2d 266, 2004 Miss. App. LEXIS 168 (Miss. Ct. App. 2004).

Evidence was sufficient to support defendant’s conviction for attempted aggravated assault on a police officer where three officers present at the scene testified that defendant had pointed a gun at them and refused demands that he drop it, an officer testified that he saw the gun as it was fired and that defendant was the first one to shoot, and an investigator concluded that the bullets fired from defendant’s gun were shot in an officer’s direction. Stringer v. State, 862 So. 2d 566, 2004 Miss. App. LEXIS 4 (Miss. Ct. App. 2004).

Evidence was sufficient to convict a defendant of aggravated assault, where his accomplice admitted in his statement for his plea agreement that he called to defendant to assist him while he was fighting with the assault victim, and the victim identified defendant at trial. Wells v. State, 849 So. 2d 1231, 2003 Miss. LEXIS 213 (Miss. 2003).

Evidence that defendant grabbed the victim’s wrists in an aggressive manner was sufficient to support defendant’s conviction for simple assault. Griffith v. City of Bay St. Louis, 797 So. 2d 1037, 2001 Miss. App. LEXIS 302 (Miss. Ct. App. 2001).

Defendant struck the victim with a mop handle, inflicting pain and injury on her so she would be quiet while he assaulted her; thus, the evidence was sufficient to convict defendant of aggravated assault and the trial court properly denied defendant’s motion for directed verdict. Bridges v. State, 790 So. 2d 230, 2001 Miss. App. LEXIS 276 (Miss. Ct. App. 2001).

State’s introduction of evidence that defendant in aggravated assault case has previously been in jail does not prejudice jury where reference to jail does not specify any particular offense and court sustains objection of defendant’s attorney and instructs jury to disregard reference. Stringer v. State, 477 So. 2d 1335, 1985 Miss. LEXIS 2191 (Miss. 1985).

Prosecution in aggravated assault case may cross-examine defense witness as to whether witness has previously been character witness for defendant. Stringer v. State, 477 So. 2d 1335, 1985 Miss. LEXIS 2191 (Miss. 1985).

In prosecution for felonious assault by cutting with knife, attorney who is employed by defendant to represent him in divorce action is competent to testify against him in regard to what occurred since attorney when testifying in criminal case was not divulging any private or confidential communication between himself and his client, but was merely testifying as witness for state to a crime committed in presence of witness and in presence of third party. Ferrell v. State, 208 Miss. 539, 45 So. 2d 127, 1950 Miss. LEXIS 272 (Miss. 1950).

In prosecution for assault and battery with intent to kill, defendant’s prior conviction of drunkenness is competent evidence against him when both sides, without objection, entered upon proof of fact whether he was drunk or drinking on night of crime, and defendant took stand as witness, as his prior conviction of crime was competent as bearing upon weight of his testimony and his credibility as witness. Phillips v. State, 43 So. 2d 208 (Miss. 1949).

On appeal from judgment of conviction on charge of assault with intent to kill, supreme court will accept testimony introduced by state as constituting true account, but, since burden of proof is on state, it will interpret that testimony in favor of defendant when it is manifestly capable of two reasonable interpretations. Craddock v. State, 204 Miss. 606, 37 So. 2d 778, 1948 Miss. LEXIS 393 (Miss. 1948).

In prosecution under this section [Code 1942, § 2011], questions so framed as to impress jury that accused is man of violent and quarrelsome disposition and that he has committed serious assaults upon other persons on different occasions in past, repeatedly asked by prosecuting attorney, objections to which are repeatedly sustained, are improper, and defendant’s motion for mistrial therefor should be sustained. Buchanan v. State, 204 Miss. 304, 37 So. 2d 318, 1948 Miss. LEXIS 367 (Miss. 1948).

14. — Admissibility.

In a case in which strangulation was an element of the crime charged in the indictment, the trial court did not commit plain error by permitting a law enforcement officer to testify to medical causation that the victim’s injuries appeared to be a result of strangulation because defendant failed to object to the testimony at trial and, in fact, emphasized at on cross examination. Kirk v. State, 160 So.3d 685, 2015 Miss. LEXIS 68 (Miss. 2015).

Defendant’s convictions for capital murder in violation of Miss. Code Ann. §97-3-19(2)(e), aggravated assault in violation of Miss. Code Ann. §97-3-7(2), and conspiracy to commit aggravated assault were appropriate because the victim’s autopsy photographs were admissible since their probative value was not outweighed by any danger of undue prejudice and since there was a meaningful evidentiary purpose. Williams v. State, 3 So.3d 105, 2009 Miss. LEXIS 68 (Miss. 2009).

In a case in which defendant was convicted of violating Miss. Code Ann. §97-3-7(2)(b), the trial judge did not err by not admitting evidence of the victim’s continued intimacy with defendant after the assault. Defendant had argued that such evidence might be relevant in assessing her veracity, but the trial judge would not allow the testimony into evidence finding that any subsequent fraternization between defendant and the victim was irrelevant; the trial judge stated that the crime was committed not only against the victim but also against the laws of the State of Mississippi, and defendant cited no relevant authority for the appellate court to determine otherwise. Carter v. State, 995 So. 2d 847, 2008 Miss. App. LEXIS 700 (Miss. Ct. App. 2008).

Where defendant was convicted of aggravated assault with a weapon, a violation of Miss. Code Ann. §97-3-7, the trial court did not err in admitting a second knife into evidence because a witness testified that after defendant stabbed the victim with a butcher knife, he tried to stab him with a different knife, and the police found defendant with the second knife in his hands when he was arrested, and it was not a butcher knife, thereby corroborating the witness’s testimony. Clark v. State, 2005 Miss. App. LEXIS 371 (Miss. Ct. App. June 7, 2005), sub. op., op. withdrawn, 928 So. 2d 192, 2006 Miss. App. LEXIS 135 (Miss. Ct. App. 2006).

Trial court did not err in granting a motion in limine barring any mention of the civil suit pending between the victim and the rescue mission that he and defendant were living in where defendant claimed that had such evidence been allowed the bias and animosity of the victim towards defendant would have been proven and would have supported defendant’s self-defense theory. Notwithstanding the trial court’s ruling, after an examination of the record, the appellate court found that defendant was not prevented from testifying regarding the alleged bias of the prosecution’s witnesses and the jury heard and considered that testimony and found the prosecution’s witnesses more credible. Clark v. State, 2005 Miss. App. LEXIS 371 (Miss. Ct. App. June 7, 2005), sub. op., op. withdrawn, 928 So. 2d 192, 2006 Miss. App. LEXIS 135 (Miss. Ct. App. 2006).

Trial court did not err in excluding evidence of defendant’s fear of the victim that defendant claimed was relevant to his self-defense claim because defendant was able to testify about his fears; furthermore, the prosecution offered evidence regarding defendant’s alleged fears; the trial court merely excluded the repetition of such testimony on re-direct. Clark v. State, 2005 Miss. App. LEXIS 371 (Miss. Ct. App. June 7, 2005), sub. op., op. withdrawn, 928 So. 2d 192, 2006 Miss. App. LEXIS 135 (Miss. Ct. App. 2006).

In a prosecution for aggravated assault under Miss. Code Ann. §97-3-7, the trial court did not err in allowing evidence regarding an altercation between defendant and the victim prior to the assault; the altercation, allegedly a prior bad act, was properly admitted to establish motive under Miss. R. Evid. 404(b), and the probative value of the evidence outweighed the prejudice caused under Miss. R. Evid. 403. Brown v. State, 864 So. 2d 1009, 2004 Miss. App. LEXIS 55 (Miss. Ct. App. 2004).

Evidence of alleged racial slurs made by the defendant were improperly admitted into evidence as race is not an element of a violation of subsection (1)(c) and as the probative value, if any, of the defendant’s alleged racial slurs was clearly substantially outweighed by the danger of unfair prejudice. Tate v. State, 784 So. 2d 208, 2001 Miss. LEXIS 123 (Miss. 2001).

Prosecutor’s cross-examination of defense witness, concerning reason defendant had so much money in his house in the form of small bills, was entirely irrelevant to charge of aggravated assault and constituted improper attempt to give jury the inference that defendant needed small bills in order to deal narcotics. Cotton v. State, 675 So. 2d 308, 1996 Miss. LEXIS 198 (Miss. 1996).

In a prosecution for aggravated assault, a witness’ rebuttal testimony that the defendant had visited her house 3 days before the assault looking for the victim and that he had a gun in his pocket, did not violate Rule 608(b), Miss. R. Evid. because it was not introduced as a specific instance of conduct to impeach the defendant’s credibility. Additionally, the impeachment was not on a collateral issue since the issue of whether the victim or the defendant had a gun and which one was the aggressor was a central factual issue. The witness’ testimony was not reputation or character evidence but a statement of fact relevant to the merits, and was therefore admissible. Lewis v. State, 580 So. 2d 1279, 1991 Miss. LEXIS 314 (Miss. 1991).

In a prosecution for aggravated assault, evidence of a drug transaction involving the defendant’s husband was properly admitted into evidence where the State contended that the defendant shot 6 nightclub patrons because of a beating her husband received during the drug transaction, the evidence was introduced for the purpose of establishing the defendant’s motive for the shooting, and no evidence was presented to suggest that the defendant was involved in any drug transaction at the nightclub on the night of the shooting. Hogan v. State, 580 So. 2d 1275, 1991 Miss. LEXIS 324 (Miss. 1991).

Although wide latitude should be given in the cross-examination of witnesses, basic fairness requires that, before the State questions the accused as to whether he or she is guilty of a series of crimes unrelated to the charges being prosecuted, it have some basis in fact for such questioning. This would be the case even if the commission of such crimes were admissible evidence. Thus, where the record did not show any evidentiary basis to ask such questions, the State’s conduct in cross-examining the defendant in a sexual battery prosecution about unrelated acts of deviant, sexual conduct with his stepchildren constituted reversible error even though the defense objection was sustained. Hosford v. State, 525 So. 2d 789, 1988 Miss. LEXIS 217 (Miss. 1988).

Admission into evidence of results of blood alcohol test at trial for manslaughter and aggravated assault arising out of a motor vehicle accidents was reversible error, where deputy sheriff who investigated the accident had insufficient probable cause to request a blood alcohol test for defendant driver, in view of deputy’s statement that he smelled no odor of alcohol on defendant either at the accident scene or at the hospital, he observed no whiskey bottles or beer cans in defendant’s car, no aspect of defendant’s speech, appearance or behavior indicated that he was under the influence of alcohol, and deputy admitted that the real reason for requesting the blood alcohol test was because it was sheriff department policy to do so when someone was killed in an automobile accident. Cole v. State, 493 So. 2d 1333, 1986 Miss. LEXIS 2641 (Miss. 1986).

Testimony of aggravated assault victim as to victim’s reluctance to testify based on fear for mother, who lives close to defendant, and upon fact that someone had come looking for victim’s address with pistol is admissible on redirect examination where defense counsel has elicited from witness on cross-examination that victim did not want to testify in case. Stringer v. State, 477 So. 2d 1335, 1985 Miss. LEXIS 2191 (Miss. 1985).

In a prosecution for aggravated assault under subsection (2) of this section, the trial court properly admitted testimony by a witness that he met the automobile driven by defendant approximately one fourth mile from the collision scene and was required to drive off the road in order to prevent a collision. Gray v. State, 427 So. 2d 1363, 1983 Miss. LEXIS 2351 (Miss. 1983).

In a prosecution for aggravated assault with an automobile that arose when the victim, who had attempted to intervene in an altercation between defendant and a third person over an automobile collision, was struck by either the open door or the rear of defendant’s car, the trial court did not err in permitting the state to introduce evidence about the collision and altercation where such action on defendant’s part was intimately connected with and related to the crime charged and was relevant to establish defendant’s motive. McGee v. State, 365 So. 2d 302, 1978 Miss. LEXIS 2417 (Miss. 1978).

Confession of defendant, charged with assault and battery with intent to kill his wife, made and signed at a time when the wife was still living, was not inadmissible on the ground that the officers misrepresented the wife’s condition or that it constituted a promise of leniency. Harris v. State, 209 Miss. 102, 46 So. 2d 75, 1950 Miss. LEXIS 364 (Miss. 1950).

General reputation of deceased for peace in murder trial cannot be shown until or unless such reputation is first attacked by defense, and same rule applies to injured party in lesser offense of assault and battery with intent to kill. Hinton v. State, 209 Miss. 608, 45 So. 2d 805, 1950 Miss. LEXIS 420 (Miss.), cert. denied, 340 U.S. 802, 71 S. Ct. 68, 95 L. Ed. 590, 1950 U.S. LEXIS 1573 (U.S. 1950).

Testimony of sheriff that shortly after an alleged assault with intent to murder, he smelled liquor on defendant’s breath is admissible for purpose of showing defendant’s state of mind at time of attack, since no motive therefor was in evidence. Hughes v. State, 207 Miss. 594, 42 So. 2d 805, 1949 Miss. LEXIS 372 (Miss. 1949).

Introduction in evidence of a large stick in a prosecution for assault and battery with intent to kill constituted reversible error, where there was no showing that such stick was used in the assault and battery. Henley v. State, 202 Miss. 37, 30 So. 2d 423, 1947 Miss. LEXIS 238 (Miss. 1947).

In prosecution for assault and battery with intent to murder, largely controlled by circumstantial evidence, any circumstances logically tending to show motive held competent. Sauer v. State, 166 Miss. 507, 144 So. 225, 1932 Miss. LEXIS 307 (Miss. 1932).

Threat is admissible, though it be conditional. Cordell v. State, 136 Miss. 293, 101 So. 380, 1924 Miss. LEXIS 130 (Miss. 1924).

Where the evidence is conflicting as to who was aggressor, uncommunicated threats are admissible. Miles v. State, 99 Miss. 165, 54 So. 946, 1910 Miss. LEXIS 29 (Miss. 1910).

Error to exclude obscene postal card alleged by prosecuting witness to have caused assault. De Silva v. State, 91 Miss. 776, 45 So. 611, 1907 Miss. LEXIS 190 (Miss. 1907).

15. — — Nature of injuries.

Trial court did not abuse its discretion by allowing the prosecution to display the injured child to the jury because: (1) under Miss. Const. Art. 3, § 26A and Miss. Code Ann. §99-43-21 (Rev. 2007), the victim had the right to be present and be heard during the criminal proceedings; (2) the State was required to offer proof of serious bodily injury in order to convict defendant of aggravated assault; and (3) the probative value of the jury’s viewing the child’s injuries was not substantially outweighed by unfair prejudice to defendant. Harris v. State, 979 So. 2d 721, 2008 Miss. App. LEXIS 197 (Miss. Ct. App. 2008).

In order to prove a conviction for aggravated assault in violation of Miss. Code Ann. §97-3-7(2)(b), the state was not required to show that the victim suffered serious bodily injury, but was only required to show that defendant’s injurious action was likely to cause such a result. Beyers v. State, 930 So. 2d 456, 2006 Miss. App. LEXIS 397 (Miss. Ct. App. 2006).

Colored photographs of the victim’s face before and after surgery were admissible in an assault prosecution where the photographs were necessary to aid the jury in its decision of whether the assault with fists constituted aggravated assault or simple assault. Gardner v. State, 573 So. 2d 716, 1990 Miss. LEXIS 813 (Miss. 1990).

It was competent for aggravated assault victim to describe the nature and extent of injuries received as result of being shot by the defendant, since the essence of the offense of aggravated is that the accused has knowingly caused bodily injury to another with a deadly weapon likely to produce death or serious bodily harm. Cooley v. State, 495 So. 2d 1362, 1986 Miss. LEXIS 2715 (Miss. 1986).

Admission in evidence of a photograph of aggravated assault victim’s leg wound was not error, since it was relevant to prosecution’s need to show infliction of a wound with a deadly weapon in order to succeed under the indictment, and there was no basis to believe its probative value was substantially outweighed by danger of unfair prejudice. Cooley v. State, 495 So. 2d 1362, 1986 Miss. LEXIS 2715 (Miss. 1986).

Admission of evidence as to stabbing victim’s considerable bleeding, his scar, and the nature and size of his wound, was not reversible error, since its inflammatory or prejudicial effect, if any, on jury did not outweigh its relevancy to the issue as to whether the assault upon the victim was an aggravated one. Norris v. State, 490 So. 2d 839, 1986 Miss. LEXIS 2477 (Miss. 1986).

16. — — Other offenses or conduct.

Defendant was entitled to a new trial as to an aggravated assault count because a retroactive misjoinder occurred as the admission into evidence by stipulation of defendant’s prior felony conviction regarding a felon in possession of a knife count, when the evidence was insufficient to sustain the felon in possession count, prejudiced defendant’s defense on the aggravated assault count. Williams v. State, 37 So.3d 717, 2010 Miss. App. LEXIS 301 (Miss. Ct. App. 2010).

In a case in which defendant appealed his conviction for violating Miss. Code Ann. §97-3-7(2)(a), he unsuccessfully argued that the trial court erred in allowing the victim’s wife to testify about an encounter she and defendant had months after the incident. Defendant contended that the wife’s testimony was not relevant, and its prejudicial effect outweighed its probative value in violation of Miss. R. Evid. 403, but the evidence was offered to show defendant’s state of mind on the day of the assault; the trial court weighed the probative value of the evidence against the potential for undue prejudice. David v. State, 29 So.3d 129, 2010 Miss. App. LEXIS 112 (Miss. Ct. App. 2010).

In defendant’s trial on a charge of aggravated assault for stabbing the woman with whom he lived, the trial court erred in permitting the prosecutor to inquire into the details of defendant’s previous conviction for aggravated assault for shooting a woman. The error was not harmless because evidence of defendant’s prior conviction for the same crime of aggravated assault was highly prejudicial and because it permitted the exact inference that Miss. R. Evid. 404(b) sought to prevent. Thomas v. State, 19 So.3d 130, 2009 Miss. App. LEXIS 192 (Miss. Ct. App.), cert. denied, 19 So.3d 82, 2009 Miss. LEXIS 485 (Miss. 2009).

In defendant’s trial on a charge of aggravated assault for stabbing the woman with whom he lived, the trial court erred in permitting the prosecutor to inquire into the details of his previous conviction for aggravated assault for shooting a woman. Although the prosecutor argued that the evidence was admissible under Miss. R. Evid. 404(b) to show motive, opportunity, or intent because it was evidence that defendant liked to assault women, there was no proof that defendant’s conviction for shooting another woman years earlier had any effect upon his motive, opportunity, or intent to stab his current victim. Thomas v. State, 19 So.3d 130, 2009 Miss. App. LEXIS 192 (Miss. Ct. App.), cert. denied, 19 So.3d 82, 2009 Miss. LEXIS 485 (Miss. 2009).

Defendant’s conviction for aggravated domestic violence against his girlfriend pursuant to Miss. Code Ann. §97-3-7(4) was appropriate because defendant’s statements in which he alluded to prior domestic violence were admissible under Miss. R. Evid. 404(b) to show the absence of an accident; additionally, the circuit court did not abuse its discretion when it found that the evidence was more probative then prejudicial. Fugate v. State, 951 So. 2d 604, 2007 Miss. App. LEXIS 145 (Miss. Ct. App. 2007).

Defendant’s conviction for aggravated assault in violation of Miss. Code Ann. §97-3-7(2)(b) was appropriate because the testimony provided by the victim and another dispelled the argument in support of allowing testimony under Miss. R. Evid. 404(a)(2) to prove a character trait for violence on the part of the victim; the evidence at issue failed to demonstrate that the victim was the initial aggressor during a prior incident. Gates v. State, 936 So. 2d 335, 2006 Miss. LEXIS 384 (Miss. 2006).

Where officers received a report of a robbery in a nearby state and were warned to be on the lookout (BOLO), and where they then pursued defendant who hit three police cars during the chase, in defendant’s trial on counts of assaulting a police officer, the trial judge did not abuse his discretion in admitting the BOLO warning and the gun recovered from defendant into evidence, because those items were essential to the State’s presentation of a complete and coherent story to the jury; further, the trial judge did not err in not giving, sua sponte, a limiting instruction. Conerly v. State, 879 So. 2d 1101, 2004 Miss. App. LEXIS 762 (Miss. Ct. App. 2004).

Witness’ references to aggravated assaults allegedly committed by defendant in past were invited by defense counsel during cross-examination of witness and, in any event, no serious or irreparable damage occurred, particularly in view of direction to jury to ignore inappropriate references. Hoops v. State, 681 So. 2d 521, 1996 Miss. LEXIS 433 (Miss. 1996).

Affiliation or membership with street gang constitutes “bad act” within meaning of rule that allows evidence of other bad acts to be admitted to prove motive. Hoops v. State, 681 So. 2d 521, 1996 Miss. LEXIS 433 (Miss. 1996).

Probative value of evidence of defendant’s alleged involvement in street gang to show motive to commit aggravated assault against rival gang member was not outweighed by danger of unfair prejudice. Hoops v. State, 681 So. 2d 521, 1996 Miss. LEXIS 433 (Miss. 1996).

Foundation for admission of evidence concerning defendant’s alleged involvement in street gang was laid by one witness’ testimony that he knew defendant was gang member, and defendant’s testimony that he “hung out” with gang members. Hoops v. State, 681 So. 2d 521, 1996 Miss. LEXIS 433 (Miss. 1996).

An aggravated assault conviction would be reversed and the case remanded for a new trial where evidence of the defendant’s prior misdemeanor assault conviction was improperly admitted into evidence. Ivy v. State, 522 So. 2d 740, 1988 Miss. LEXIS 65 (Miss. 1988).

At trial of charge of simple assault on a police officer, evidence of neighbor’s complaint against defendant for disturbing the peace, issuance of arrest warrant, and arrest of defendant for disturbing the peace, were admissible in evidence under exception to general rule that proof of a crime distinct from that alleged in indictment is not admissible against the accused. Thomas v. State, 495 So. 2d 481, 1986 Miss. LEXIS 2673 (Miss. 1986).

At trial of charge of simple assault on police officer, evidence of defendant’s threatening act against neighbor, at neighbor’s house, who had complained about loud noise from defendant’s lawn party disturbing the peace, was admissible in evidence, since the incident was integrally related to the assault which occurred a couple of hours later in the general vicinity of the lawn party. Thomas v. State, 495 So. 2d 481, 1986 Miss. LEXIS 2673 (Miss. 1986).

In prosecution for aggravated assault based upon shooting of one person, testimony that another person was also shot and that defendant fled to another county for 2 weeks is admissible as constituting part of res gestae. Davis v. State, 476 So. 2d 608, 1985 Miss. LEXIS 2248 (Miss. 1985).

17. — —Self-defense.

In a prosecution for simple assault on a law enforcement officer, in which the defendant claimed that a deputy sheriff attacked him without provocation and that he was attempting to defend himself, the defendant was precluded from introducing evidence of the deputy’s reputation for violence unless and until he introduced evidence of an overt act of aggression by the deputy. Robinson v. State, 566 So. 2d 1240, 1990 Miss. LEXIS 468 (Miss. 1990).

Testimony to the effect that on the night of the fight and a short time before it occurred, the assaulted party had expressed ill will toward the accused because of having been let out as church treasurer, which was also the matter which precipitated the fighting, was admissible on the issue of self-defense. Ridgeway v. State, 245 Miss. 506, 148 So. 2d 513, 1963 Miss. LEXIS 531 (Miss. 1963).

18. — Sufficiency.

Evidence that defendant fired his shotgun three times at the back of the victims’ car as the victim was crouched between the car and an above-ground pool supported the jury’s conclusion that defendant attempted to cause bodily injury to the victim and thus, was sufficient to support his attempted aggravated assault conviction. Dehart v. State, — So.3d —, 2020 Miss. App. LEXIS 20 (Miss. Ct. App. Jan. 28, 2020).

Defendant’s conviction was not against the manifest weight of the evidence, which included photographs of the holes in the above-ground pool and in the back of the victim’s car and testimony that defendant was shooting at the car the victim was crouched behind and yelling and cursing at the victim. Dehart v. State, — So.3d —, 2020 Miss. App. LEXIS 20 (Miss. Ct. App. Jan. 28, 2020).

There was sufficient evidence for the jury to find that the victim was wounded by a bullet and that defendant fired the bullet because a witness testified she saw the victim’s back bleeding, the witness and the victim both testified that the victim was in a bed in the front bedroom when the shooting started, photographs showed a bullet hole directly above the bed where the victim slept, and the witness and the victim testified that the bullet hole had not been there before the shooting. Morris v. State, — So.3d —, 2020 Miss. App. LEXIS 11 (Miss. Ct. App. Jan. 14, 2020).

State of Mississippi provided sufficient evidence for the trial court to deny defendant’s directed verdict motion at defendant’s trial for aggravated assault because the State presented eyewitness testimony that defendant used defendant’s truck with the purpose and intent of harming the victim, following an argument with the victim, by hitting or clipping the victim with the truck as defendant revved the truck in a vacant parking lot. Middleton v. State, 281 So.3d 858, 2019 Miss. App. LEXIS 33 (Miss. Ct. App. 2019).

Evidence was sufficient to support defendant’s aggravated assault conviction because the victim testified that before the men left they threw gasoline on him and defendant used a cigarette lighter to set him on fire. The officer testified that when he arrived at the hospital the victim’s room smelled of gasoline and he noticed that the victim had been burned. Kidd v. State, 284 So.3d 777, 2019 Miss. App. LEXIS 342 (Miss. Ct. App. 2019).

Sufficient evidence supported defendant’s conviction for aggravated assault on a correctional officer because the evidence showed defendant intentionally caused bodily injury by creating a substantial risk of death to the victim when defendant planned the assault and placed the victim in a chokehold. Moffite v. State, — So.3d —, 2019 Miss. App. LEXIS 581 (Miss. Ct. App. Dec. 3, 2019).

Evidence showing that after the shooting first defendant made no attempt to leave the group involved and spent the night with teh group in hotel was sufficient so support defendant’s aggravated assault conviction. Buchanan v. State, — So.3d —, 2019 Miss. App. LEXIS 579 (Miss. Ct. App. Dec. 3, 2019).

Trial court did not err in denying defendant’s motion for JNOV, as reasonable juror could have inferred defendant shot the victim, who was holding his infant son, and thus, defendant possessed the intent to commit aggravated assault, in that he attempted to inflict serious bodily injury with a deadly weapon upon the baby. McCray v. State, 263 So.3d 1021, 2018 Miss. App. LEXIS 325 (Miss. Ct. App. 2018), cert. denied, 263 So.3d 665, 2019 Miss. LEXIS 75 (Miss. 2019).

Evidence was sufficient to convict defendant of aggravated assault because, even though no shooting occurred, the victim testified that when she entered the house, defendant came out of a backroom and pointed a long gun at her; she testified that she heard a click from the gun and ran from the house for help; the mere attempt to fire the gun supported the verdict for aggravated assault; and the jury heard the victim’s testimony and deemed it sufficient to determine that defendant attempted to cause the victim bodily injury with a weapon. Johnson v. State, 264 So.3d 822, 2018 Miss. App. LEXIS 546 (Miss. Ct. App. 2018).

Defendant’s motion for a judgment notwithstanding the verdict was properly dismissed as substantial evidence supported the verdict convicting defendant of aggravated assault because the victim positively identified defendant as his shooter and testified that he knew defendant well; a witness testified that he saw defendant and his father driving around the neighborhood and then saw them pursuing the victim in their vehicle; an officer testified that, upon arriving at the police station after the shooting, he saw the victim receiving medical attention for his wounds and observed the shattered windows of the victim’s truck; and the police recovered several shell casings from the street in front of the home where the victim was shot. Mack v. State, 237 So.3d 778, 2017 Miss. App. LEXIS 334 (Miss. Ct. App. 2017), cert. denied, 237 So.3d 1270, 2018 Miss. LEXIS 90 (Miss. 2018).

Evidence was sufficient to warrant the trial court’s denial of defendant’s motion for a directed verdict or judgment notwithstanding the verdict because the deadly weapon element of aggravated assault could be found beyond a reasonable doubt; the victim told police and testified at trial that defendant hit her with a tire iron, her son corroborated the events, and her treating physician testified that her scalp laceration was consistent with being hit with a blunt object, such as a tire iron. Kennedy v. State, 236 So.3d 829, 2017 Miss. App. LEXIS 575 (Miss. Ct. App. 2017).

Trial counsel was not ineffective because there was no reasonable probability that the outcome of defendant’s trial for aggravated assault would have been different if counsel would have filed a posttrial motion for judgment notwithstanding the verdict (JNOV) since there was ample evidence of defendant’s guilt; numerous witnesses said that defendant was moving toward the victim while shooting at him and that he was trying to get away from defendant. Darnell v. State, 202 So.3d 281, 2016 Miss. App. LEXIS 565 (Miss. Ct. App. 2016).

It was not an abuse of discretion to deny defendant’s new trial motion, after defendant was convicted of aggravated assault, because (1) defendant had a gun, (2) the victim was unarmed, (3) gunshots were heard, and (4) defendant pursued the victim. Tutwiler v. State, 197 So.3d 418, 2015 Miss. App. LEXIS 650 (Miss. Ct. App. 2015), cert. denied, 202 So.3d 613, 2016 Miss. LEXIS 352 (Miss. 2016).

It was no error to deny defendant a peremptory instruction that the State did not prove aggravated assault elements, or defendant’s motion for judgment notwithstanding the verdict, because (1) all witnesses said defendant had a gun, and (2) defendant admitted defendant shot the victim. Tutwiler v. State, 197 So.3d 418, 2015 Miss. App. LEXIS 650 (Miss. Ct. App. 2015), cert. denied, 202 So.3d 613, 2016 Miss. LEXIS 352 (Miss. 2016).

Evidence was sufficient to convict defendant of aggravated assault because the victim unequivocally identified defendant as her assailant, both initially to law enforcement and at trial; the victim’s testimony was more than sufficient to prove beyond a reasonable doubt that defendant was the one who caused the victim’s injuries; and it was possible for a reasonable juror to find defendant guilty beyond a reasonable doubt based on the victim’s testimony, the officers’ testimony, and the photographic evidence. Casey v. State, 179 So.3d 74, 2015 Miss. App. LEXIS 578 (Miss. Ct. App. 2015).

Trial court properly denied defendant’s motion for a new trial because the evidence at trial was sufficient to convict him of aggravated assault on a law enforcement officer and robbery where, inter alia, a surveillance video admitted into evidence showed him as an inmate grab a correctional officer, throw her around and choke her while she was screaming in obvious fear for her life, the evidence also established that defendant stealthily grabbed her cell phone and that she was in fear for her life when he took her phone. Pritchett v. State, 171 So.3d 594, 2015 Miss. App. LEXIS 407 (Miss. Ct. App. 2015).

Sufficient evidence supported defendant’s conviction for aggravated domestic violence based on evidence that he and the victim were married, his wife’s testimony that defendant strangled her and she could not breathe and lost consciousness, and the deputies’ identification of pictures showing her injuries. Kirk v. State, 160 So.3d 685, 2015 Miss. LEXIS 68 (Miss. 2015).

Evidence was sufficient to convict defendant of aggravated assault and the verdict was not against the overwhelming weight of the evidence because a witness testified that she saw a rifle in the hands of the co-defendant as he and defendant accosted the victim; the victim’s brother testified he took off running because he saw guns; an accomplice testified that, at some point during the beating, defendant hit the victim with an assault rifle; the officer who found the victim naked and unconscious testified that the victim had a severe head wound; and the accomplice’s testimony was corroborated by another witness and other evidence, including the victim’s blood on defendant’s legs, and the victim’s bloodied clothes in defendant’s bedroom. Donelson v. State, 158 So.3d 1154, 2014 Miss. App. LEXIS 426 (Miss. Ct. App. 2014), cert. denied, 158 So.3d 1153, 2015 Miss. LEXIS 134 (Miss. 2015).

Defendant’s aggravated assault conviction was not against the weight of the evidence because (1) testimonial inconsistencies did not warrant a new trial, and, viewing the evidence in the light most favorable to the verdict and considering defendant’s admission to driving around “enraged” before going to a park to confront and fight the victim, and the victim’s testimony that the victim did not provoke the shooting, the jury’s inferences were reasonable and the verdict was not unconscionable. Duke v. State, 146 So.3d 401, 2014 Miss. App. LEXIS 456 (Miss. Ct. App. 2014).

Sufficient evidence supported defendant’s aggravated assault conviction because (1) proof was offered on each element, (2) the jury resolved testimonial conflicts, (3) defendant admitted arming himself to confront the victim, and (4) the evidence let the jury reject defendant’s self-defense claim. Duke v. State, 146 So.3d 401, 2014 Miss. App. LEXIS 456 (Miss. Ct. App. 2014).

Circuit court properly denied defendant’s motion for a new trial because the evidence was sufficient to convict him of aggravated assault where numerous eyewitnesses testified that defendant had been by a car with a gun and that multiple shots were fired at the car as the victim was driving away, a bullet hole was found in the driver’s side door, a spent projectile was recovered from by the driver’s side door, and gunshot residue was found on defendant’s hands. Brown v. State, 157 So.3d 836, 2014 Miss. App. LEXIS 393 (Miss. Ct. App. 2014), cert. denied, 157 So.3d 835, 2015 Miss. LEXIS 70 (Miss. 2015).

Evidence that defendant was antagonizing the victim, who attempted to restrain defendant to prevent defendant from hitting him, and that defendant retaliated and bit off part of the victim’s ear was sufficient to defeat defendant’s motion for JNOV as to the charge of aggravated assault. Shaw v. State, 139 So.3d 79, 2013 Miss. App. LEXIS 662 (Miss. Ct. App. 2013).

In an aggravated assault case, the verdict was not against the overwhelming weight of the evidence because the jury obviously rejected defendant’s theory that he was acting in self-defense and that the victim, who defendant alleged was the aggressor, inadvertently stabbed himself five times during the scuffle. Ross v. State, 121 So.3d 278, 2013 Miss. App. LEXIS 576 (Miss. Ct. App. 2013).

Evidence was sufficient to convict defendant of aggravated assault as the victim testified that he saw defendant coming toward him with a butcher knife, that they wrestled, and that he received multiple stab wounds before the knife’s blade and handle broke; and the State proved that defendant was not acting in self-defense. Ross v. State, 121 So.3d 278, 2013 Miss. App. LEXIS 576 (Miss. Ct. App. 2013).

Evidence was sufficient to convict defendant of aggravated assault in the attempted shooting of the victim, and the verdict was not against the overwhelming weight of the evidence, because defendant had lost a fight with the victim and was bloodied and humiliated; immediately before the shooting, defendant threatened the victim; and the jury could have concluded that defendant simply missed when he tried to shoot the victim. Winn v. State, 127 So.3d 289, 2013 Miss. App. LEXIS 557 (Miss. Ct. App. 2013).

Evidence was sufficient to find defendant guilty of aggravated domestic violence by either strangulation or attempted strangulation because the record contained evidence that defendant intentionally blocked the nose or mouth of the victim by any means. Clark v. State, 122 So.3d 129, 2013 Miss. App. LEXIS 533 (Miss. Ct. App. 2013).

Evidence was sufficient to convict defendant of aggravated assault and armed robbery and the verdicts were not against the weight of the evidence as he was present, consenting, aiding, and abetting the commission of the robbery by one of the accomplices, and the two accomplices’ testimony was more than slightly supported by corroborating eyewitness testimony and forensic evidence. Grossley v. State, 127 So.3d 1143, 2013 Miss. App. LEXIS 384 (Miss. Ct. App. 2013), cert. denied, 131 So.3d 577, 2014 Miss. LEXIS 26 (Miss. 2014).

Sufficient evidence supported defendant’s conviction for aggravated assault because even if the victim’s alleged gun had been found, the jury still could have concluded defendant was the aggressor, the shooting resulted from mutual combat, or even that the victim was reaching for his own gun in self-defense. Wansley v. State, 114 So.3d 793, 2013 Miss. App. LEXIS 316 (Miss. Ct. App.), cert. denied, 127 So.3d 1115, 2013 Miss. LEXIS 655 (Miss. 2013).

Conviction of aggravated assault was supported by sufficient evidence where an officer’s testimony that defendant became a suspect in the shooting did not constitute an inadmissible identification, and the victim’s identification of defendant as the shooter was uncontradicted, as was the victim’s account of the entire incident. Keithley v. State, 111 So.3d 1202, 2013 Miss. LEXIS 161 (Miss. 2013).

Evidence was sufficient to support defendant’s conviction for aggravated assault under Miss. Code Ann. §97-3-7(2)(a)(ii) because defendant’s sister-in-law testified that after defendant threatened and hit her with the butt of the gun, he intentionally shot her. Smith v. State, 111 So.3d 119, 2013 Miss. App. LEXIS 176 (Miss. Ct. App. 2013).

Evidence that defendant choked the victim with his hands until she nearly passed out was sufficient to support a jury’s decision that defendant was guilty of aggravated assault. Sellers v. State, 108 So.3d 456, 2012 Miss. App. LEXIS 533 (Miss. Ct. App. 2012), cert. denied, 107 So.3d 998, 2013 Miss. LEXIS 126 (Miss. 2013).

Weight of the evidence supported defendant’s convictions for aggravated assault and conspiracy to commit aggravated assault because defendant did not specify any contradictory evidence that showed his guilty verdict was unconscionably unjust. Moore v. State, 105 So.3d 390, 2012 Miss. App. LEXIS 506 (Miss. Ct. App. 2012), cert. denied, 109 So.3d 567, 2013 Miss. LEXIS 101 (Miss. 2013).

Sufficient evidence supported defendant’s conviction for misdemeanor domestic violence, pursuant to Miss. Code Ann. §97-3-7(3), because the 911 dispatcher testified the victim, who was defendant’s husband, stated defendant bit him during an altercation, pictures of the victim’s injuries were admitted into evidence, and defendant admitted biting the victim; the husband’s decision not to cooperate with the prosecution did not preclude a charge of domestic violence against defendant, pursuant to Miss. Code Ann. §99-3-7(3)(a). Anderson v. State, 102 So.3d 304, 2012 Miss. App. LEXIS 510 (Miss. Ct. App. 2012), cert. dismissed, 105 So.3d 326, 2013 Miss. LEXIS 37 (Miss. 2013).

Evidence was legally insufficient to sustain a conviction for simple assault domestic violence under Miss. Code Ann. §97-3-7 because appellant did not confess to committing the assault, there was no eyewitness testimony, and there were other reasonable hypotheses consistent with appellant’s innocence as to how an incident occurred. Inter alia, the victim could have sustained injuries after he attacked appellant first. Mills v. City of Water Valley, 66 So.3d 193, 2011 Miss. App. LEXIS 371 (Miss. Ct. App. 2011).

In a case of aggravated assault under Miss. Code Ann. §97-3-7(2)(b), the evidence was sufficient to prove defendant shot the victim “purposely” or “knowingly” where defendant shot the victim eight or nine times following an argument and was aware of defendant’s actions before and after the shooting. Williams v. State, 61 So.3d 981, 2011 Miss. App. LEXIS 270 (Miss. Ct. App. 2011).

Evidence was sufficient to sustain a conviction for simple assault, pursuant to Miss. Code Ann. §99-19-81, where the assault victim testified that defendant attacked her with a knife immediately after defendant fatally stabbed another victim in the chest. Porter v. State, 33 So.3d 535, 2010 Miss. App. LEXIS 206 (Miss. Ct. App. 2010).

While defendant and the State presented conflicting testimony in defendant’s aggravated assault trial, the verdict was not against the overwhelming weight of the evidence where the State’s proof met the elements of aggravated assault pursuant to Miss. Code Ann. §97-3-7(2), because the jury was the sole judge of the witnesses’ credibility. Camper v. State, 24 So.3d 1072, 2010 Miss. App. LEXIS 5 (Miss. Ct. App. 2010).

Evidence was insufficient to support defendant’s convictions for aggravated assault under Miss. Code Ann. §97-3-7(2), and other crimes, because, by limiting cross-examination, the jury was denied the ability to properly resolve the weight and credibility of the testimony of the only witness capable of identifying the perpetrator. Therefore, the record failed to reflect beyond a reasonable doubt that the error complained of did not contribute to the verdict. Mendenhall v. State, 18 So.3d 915, 2009 Miss. App. LEXIS 670 (Miss. Ct. App. 2009).

Evidence was sufficient to convict defendant of aggravated assault where defendant attempted to purposely or knowingly cause bodily injury to the law enforcement officers; defendant was described as agitated, irate, and hostile, and he made slashing motions at the deputies with a knife, and he was holding his son in front of him as a shield. Babb v. State, 17 So.3d 100, 2009 Miss. App. LEXIS 70 (Miss. Ct. App.), cert. denied, 17 So.3d 99, 2009 Miss. LEXIS 440 (Miss. 2009).

In defendant’s trial for kidnapping, sexual battery, and aggravated assault, the evidence was sufficient to sustain defendant’s conviction because the victim testified that defendant put his hand over the victim’s neck and began choking her; the victim also testified that she lost consciousness, and a nurse testified that the victim suffered petechiae and hemorrhaging to her eyes, which could be caused by strangulation. There was more than sufficient for a rational trier of fact to find the essential elements of aggravated assault. Moore v. State, 996 So. 2d 756, 2008 Miss. LEXIS 601 (Miss. 2008).

In an aggravated domestic assault case, for purposes of expert testimony, to the extent that the officer blurred the line between fact and opinion testimony with regard to his testimony that he would have expected defendant to have more severe injuries if he had been defending himself against a knife attack, any error was harmless in light of the overwhelming weight of the evidence of his guilt, including (1) the photographs of the victim’s injuries; (2) the photographs of the ironing board he used to beat the victim; (3) the photographs of defendant’s injuries; and (4) the testimony of the victim and her neighbor. Hicks v. State, 6 So.3d 1099, 2008 Miss. App. LEXIS 481 (Miss. Ct. App. 2008), cert. denied, 11 So.3d 1250, 2009 Miss. LEXIS 161 (Miss. 2009).

As the trier of fact, the jury found that the overwhelming weight of the evidence showed that defendant deliberately and knowingly shot the husband without authority of law and not in necessary self-defense and thus was guilty of aggravated assault under Miss. Code Ann. §97-3-7(2). The court found no error with such finding, as the evidence included that defendant and her husband were fighting, that she shot him, and that he hit her after being shot in an effort to obtain the gun; thus, the trial court did not abuse its discretion in denying defendant’s motion for a new trial. Lawrence v. State, 3 So.3d 754, 2008 Miss. App. LEXIS 406 (Miss. Ct. App. 2008), cert. denied, 11 So.3d 1250, 2009 Miss. LEXIS 101 (Miss. 2009).

Evidence was sufficient to convict defendant of two counts of simple assault when the testimony presented at trial showed that defendant had pointed an assault rifle at police officers. McGregory v. State, 979 So. 2d 12, 2008 Miss. App. LEXIS 207 (Miss. Ct. App. 2008).

Where defendant and his cohort had been riding around discussing ways to make money, they approached the victims’ house, knocked on the door, made up a story about running out of gas, then shot two victims, and fled the house when one of the victims’ did not go down after being shot multiple times. A rational juror could have found beyond a reasonable doubt that defendant aided and abetted the crimes of armed robbery and aggravated assault in violation of Miss. Code Ann. §97-3-7. Hughes v. State, 983 So. 2d 270, 2008 Miss. LEXIS 153 (Miss.), cert. denied, 555 U.S. 1052, 129 S. Ct. 633, 172 L. Ed. 2d 620, 2008 U.S. LEXIS 8544 (U.S. 2008).

Sufficient evidence supported defendant’s conviction for aggravated assault, in violation of Miss. Code Ann. §97-3-7(2)(a), where defendant admitted to discharging a weapon with the intent to scare the victim, and aggravated the conditions of the crime by employing a deadly weapon. Harris v. State, 970 So. 2d 151, 2007 Miss. LEXIS 709 (Miss. 2007).

Defendant’s convictions for the simple assault of a peace officer in violation of Miss. Code Ann. §97-3-7(1) were appropriate because the evidence was sufficient. The State presented ample evidence that defendant attacked the officers with punches and kicks and the officers testified that they had no idea what the purpose of defendant’s actions was or whether he was armed; the officers also admitted that those unknowns and defendant’s physical attacks placed them in fear of imminent serious bodily harm. Graham v. State, 967 So. 2d 670, 2007 Miss. App. LEXIS 721 (Miss. Ct. App. 2007).

Evidence was sufficient to sustain defendant’s conviction for aggravated assault under Miss. Code Ann. §97-3-7(2)(b) and was not against the weight of the evidence because: (1) the victim, who was renting a garage apartment from the home owner, stated that when he first went into the house, defendant was in bed, but while he was in the kitchen defendant kicked in the door and stated that he was going to kill the victim; (2) the victim testified that defendant hit and pushed the home owner against the wall then began attacking him; (3) and the victim testified that he eventually overpowered defendant and threw him on a bed, but not before defendant stabbed him while he was coming through the hall. White v. State, 958 So. 2d 241, 2007 Miss. App. LEXIS 372 (Miss. Ct. App. 2007).

Given the evidence in the record, a reasonable juror could find defendant guilty of aggravated assault beyond a reasonable doubt under Miss. Code Ann. §97-3-7; the evidence showed that defendant initiated the altercation, struck the first blow, and repeatedly stabbed the victim. Bobo v. State, 953 So. 2d 282, 2007 Miss. App. LEXIS 196 (Miss. Ct. App. 2007).

Defendant’s argument that the jury did not have sufficient evidence to convict her of aggravated assault, in violation of Miss. Code Ann. §97-3-7(2), was without merit; the State presented credible evidence that defendant knowingly stabbed the victim with a knife. Even if the victim had struck defendant prior to the stabbing, the jury could have found that defendant was not in imminent danger and used more force than reasonably necessary to repel the victim’s assault. Vaughn v. State, 926 So. 2d 269, 2006 Miss. App. LEXIS 265 (Miss. Ct. App. 2006).

Defendant’s convictions for aggravated assault and shooting into an occupied dwelling were not against the overwhelming weight of the evidence because: (1) the victim and a witness testified that they told police right away that defendant was the shooter; (2) the victim’s mother testified that one week before the shooting the victim’s sister and defendant’s ex-girlfriend called home scared because defendant had threatened to shoot up the house or to set it on fire; (3) the victim’s mother testified that it was that same week she spotted defendant trying to break into the home; and (4) defendant’s brother-in-law testified that defendant admitted that he shot the victim. Brown v. State, 986 So. 2d 308, 2006 Miss. App. LEXIS 924 (Miss. Ct. App. 2006), rev'd, 986 So. 2d 270, 2008 Miss. LEXIS 340 (Miss. 2008).

Evidence was sufficient to convict defendant of aggravated assault, despite two witnesses’ recantations; the elements of aggravated assault were proven, and it was the jury’s responsibility to weigh the credibility of the witnesses’ testimony at trial. Townsend v. State, 939 So. 2d 796, 2006 Miss. LEXIS 552 (Miss. 2006).

Defendant’s conviction for aggravated assault in violation of Miss. Code Ann. 97-3-7(2) was appropriate because, even though a DNA report itself was not admitted into evidence, the substance of its conclusion was before the jury and defendant failed to show that he was prejudiced by not possessing the report until the first day of his fourth trial. Curry v. State, 939 So. 2d 785, 2006 Miss. LEXIS 448 (Miss. 2006).

Evidence was sufficient to convict defendant of aggravated assault where the victim testified to her injuries and the act itself, and defendant presented no evidence to contradict this; reasonable minds could have found beyond a reasonable doubt that defendant was guilty. Brown v. State, 934 So. 2d 1039, 2006 Miss. App. LEXIS 540 (Miss. Ct. App. 2006).

Sufficient evidence existed to convict defendant of aggravated assault because the victim and the husband testified that defendant shot the victim, two defense witnesses testified that defendant shot in the direction of the victim, and only defendant denied either shooting the victim or having a gun. Smith v. State, 946 So. 2d 785, 2006 Miss. App. LEXIS 460 (Miss. Ct. App. 2006).

State produced evidence and witnesses tending to show that defendant did indeed commit simple assault upon a police officer; while it was true defendant called his own witnesses to contradict the State’s evidence, the appellate court could not say that any rational trier of fact could not have found the essential elements of the crime beyond a reasonable doubt, particularly when the evidence was viewed in the light most favorable to the State. Morris v. State, 927 So. 2d 744, 2006 Miss. LEXIS 113 (Miss. 2006).

Regarding the assault charge on which defendant was convicted, the State must have proven (1) that under circumstances manifesting extreme indifference to human life (2) defendant did purposefully, knowingly or recklessly (3) attempt to cause or caused serious bodily injury to the officer, Miss. Code Ann. §97-3-7(2); the testimony at trial established that defendant drove his vehicle with the officer’s arm trapped in the closed driver’s side window, evidencing defendant’s indifference to human life, and defendant admitted that he rolled up the window and that he was trying to leave; there was testimony that the car window ripped the flesh from the officer’s arm, and this evidence was sufficient to support the verdict. Hubbard v. State, 938 So. 2d 287, 2006 Miss. App. LEXIS 163 (Miss. Ct. App.), cert. denied, 937 So. 2d 450, 2006 Miss. LEXIS 543 (Miss. 2006).

Where the victim was shot in the thigh during the course of the carjacking, in circumstances from which jurors could have inferred the purposeful or knowing intent to injure another with a deadly weapon, the evidence supported a jury verdict convicting defendant of aggravated assault under Miss. Code Ann. §97-3-7(2) and armed carjacking under Miss. Code Ann. §97-3-117(2)(b). Walters v. State, 932 So. 2d 860, 2006 Miss. App. LEXIS 115 (Miss. Ct. App.), cert. dismissed, 937 So. 2d 450, 2006 Miss. LEXIS 524 (Miss. 2006).

Evidence was sufficient to sustain defendant’s convictions for aggravated assault, kidnapping, and unlawful possession of a firearm where, according to the victim’s testimony, she was accosted by defendant who grabbed her, placed a gun to her head, and physically forced her into a van against her will; an eyewitness testified that he saw the victim jump out of the van and saw the van swing back in such a fashion so as to accomplish a “perfect hit” on the woman in flight. In addition, the State presented two witnesses attesting to the fact that defendant was in possession of a firearm, and it introduced the gun into evidence with additional proof that the gun was recovered when defendant was arrested. Jones v. State, 920 So. 2d 465, 2006 Miss. LEXIS 65 (Miss. 2006).

Where eyewitnesses testified that shots were fired from defendant’s vehicle and the victim testified that defendant was the man who shot him, the evidence was sufficient to support the jury’s verdict convicting defendant of aggravated assault. Williams v. State, 914 So. 2d 1246, 2005 Miss. App. LEXIS 850 (Miss. Ct. App. 2005).

Sufficient evidence existed to convict defendant of aggravated assault as defendant sprayed the victim with lighter fluid after setting his house on fire and the victim sustained second-degree burns to 50-60% of his body. McIntosh v. State, 917 So. 2d 78, 2005 Miss. LEXIS 754 (Miss. 2005).

Even by his own argument, defendant was responsible for aggravated assault and a reduced charge of manslaughter, to which he had plead guilty because he had heard the factual basis which the district attorney’s office stated was proof should defendant’s case go to trial and defendant had previously told the court that he had no disagreement with those statements. Graham v. State, 914 So. 2d 1256, 2005 Miss. App. LEXIS 915 (Miss. Ct. App. 2005).

Evidence was sufficient to sustain a conviction for causing serious bodily injury where the victim testified that defendant threw a caustic substance down his shoulder, back, and leg, the substance gave him second degree burns, and defendant stated to the victim that he was “messed up now.” Chambliss v. State, 919 So. 2d 30, 2005 Miss. LEXIS 364 (Miss. 2005).

Evidence presented at trial was legally sufficient to convict defendant of aggravated assault pursuant to Miss. Code Ann. §97-3-7(2) because the victim identified defendant as one of her attackers, informed her rescuers that defendant and a codefendant had shot her, was shot at close range, and identified defendant and the codefendant at trial as her attackers. Jones v. State, 913 So. 2d 436, 2005 Miss. App. LEXIS 304 (Miss. Ct. App. 2005).

Court did not err in denying defendant’s motion for judgment notwithstanding the verdict because the State proved the elements of aggravated assault, provided in Miss. Code Ann. §97-3-7(2), against him; in a tape-recorded statement to the police following the shooting, defendant admitted firing two shots at the victim. Substantial evidence supported defendant’s conviction. Dunn v. State, 891 So. 2d 822, 2005 Miss. LEXIS 42 (Miss. 2005).

Where the victim testified that defendant had cut her on the neck with a box cutter, requiring ten stitches, her uncorroborated testimony was sufficient evidence to sustain defendant’s conviction for aggravated assault. Wilks v. State, 909 So. 2d 1252, 2005 Miss. App. LEXIS 108 (Miss. Ct. App. 2005).

Evidence was sufficient to sustain defendant’s attempted aggravated assault conviction where the victim testified extensively about the crime, her testimony was corroborated by other witnesses, and photographs of the victim’s injuries were admitted. Wilson v. State, 904 So. 2d 987, 2004 Miss. LEXIS 1410 (Miss. 2004).

Where defendant pulled out a gun and fired a shot at his live-in girlfriend, the evidence was sufficient to support his conviction for aggravated assault. The State presented three witnesses who testified that defendant shot the gun at least three times. Griffin v. State, 883 So. 2d 1201, 2004 Miss. App. LEXIS 965 (Miss. Ct. App. 2004).

Undisputed evidence revealed that defendant led police on a chase that spanned over two counties and that the police attempted to stop defendant numerous times, but he refused to stop, hitting three police cars in the process. Accepting the evidence in the light most favorable to the State, the jury was justified in finding defendant guilty of two counts of simple assault on a law enforcement officer and one count of aggravated assault on a law enforcement officer. Conerly v. State, 879 So. 2d 1101, 2004 Miss. App. LEXIS 762 (Miss. Ct. App. 2004).

Defendant’s aggravated assault conviction for assaulting his elderly relative was supported by credible evidence, as the State offered testimony that: at the time of the attack the victim lived alone, supported herself, and prepared her own meals; the victim’s identification of defendant as her attacker; and testimony from police officers that on at least two separate occasions the victim identified defendant as her attacker. Robinson v. State, 870 So. 2d 669, 2004 Miss. App. LEXIS 307 (Miss. Ct. App. 2004).

Sufficient evidence existed to support defendant’s guilt for aggravated assault where the victim testified that defendant had shot him, and several witnesses not only placed defendant at the scene of the crime, but confirmed that he had shot the victim. Anderson v. State, 874 So. 2d 1000, 2004 Miss. App. LEXIS 188 (Miss. Ct. App. 2004).

Evidence was sufficient to convict defendant of aggravated assault where the jury must have determined that the victim’s account of the stabbing was correct; allowing the verdict to stand did not create an unconscionable injustice. Sanderson v. State, 881 So. 2d 878, 2004 Miss. App. LEXIS 35 (Miss. Ct. App.), aff'd in part and rev'd in part, 883 So. 2d 558, 2004 Miss. LEXIS 1199 (Miss. 2004).

Where codefendants testified that defendant shot the owner of the lounge and fled with billfolds taken from the owner and patrons, and the owner and the co-owner both identified defendant as the shooter, the evidence was sufficient to sustain defendant’s convictions for armed robbery and aggravated assault, even though the money and the gun were not recovered and the bullet fragnments were not retrieved from the ceiling and the victim’s head. Graham v. State, 861 So. 2d 1053, 2003 Miss. App. LEXIS 1194 (Miss. Ct. App. 2003).

Evidence was sufficient to convict defendant where a person was guilty of simple assault if he either attempted or purposely, knowingly, or recklessly caused bodily injury to another; the officer was treated at a hospital for scratches that went from his neck to his chest, although defendant had argued that the slight injuries to the officer were inadvertent, the jury was entitled to disbelieve his account of the episode and find his conduct met the definition of assault under Miss. Code Ann. §97-3-7(1). Abram v. State, 861 So. 2d 1064, 2003 Miss. App. LEXIS 1190 (Miss. Ct. App. 2003).

Evidence was sufficient to support defendant’s aggravated assault conviction, because the evidence adduced at the trial consisted of not only the victim’s testimony, but also that of three witnesses who either saw an altercation between defendant and the victim at a convenience store or saw defendant’s actual possession of the firearm, and two of the witnesses were eyewitnesses to the altercation. Davis v. State, 866 So. 2d 1107, 2003 Miss. App. LEXIS 900 (Miss. Ct. App. 2003).

Evidence was sufficient to convict a defendant of aggravated assault, where his accomplice admitted in his statement for his plea agreement that he called to defendant to assist him while he was fighting with the assault victim, and the victim identified defendant at trial. Wells v. State, 849 So. 2d 1231, 2003 Miss. LEXIS 213 (Miss. 2003).

Where jury heard testimony from both sides and viewed a videotape of the assault, a reasonable and fair minded jury was presented enough evidence to reach a guilty verdict on the inmate’s charge of assaulting a law enforcement officer for assaulting the prison warden. Hicks v. State, 845 So. 2d 755, 2003 Miss. App. LEXIS 434 (Miss. Ct. App. 2003).

Evidence was sufficient to convict defendant where testimony was presented that defendant was seen with a gun during the altercation, a muzzle flash from his gun, and that bullet casings from a weapon matching defendant’s gun were recovered; while there was testimony that at least one other person drew a gun inside the club that night, the jury decided to give that testimony less weight than the testimony supporting defendant’s guilt. Anderson v. State, 856 So. 2d 650, 2003 Miss. App. LEXIS 585 (Miss. Ct. App. 2003).

In a case where defendant threatened his estranged wife with a gun, forced her to have intercourse with him, and struck her, the evidence was sufficient to support defendant’s rape and simple assault convictions based on the victim’s testimony, as her testimony was not incredible on its face nor was it contradicted by other, more compelling, evidence. Williams v. State, 868 So. 2d 346, 2003 Miss. App. LEXIS 669 (Miss. Ct. App. 2003).

State did not fail to prove beyond a reasonable doubt that defendant had committed an aggravated assault where the victim presented testimony that went to all of the essential elements of aggravated assault – she was attacked by defendant, who was wielding a knife, and she received lacerations while attempting to defend herself from his attack; the victim’s testimony was not impeached during cross-examination nor did the defense present evidence that would have made her version of events so improbable as to be unworthy of belief. Page v. State, 843 So. 2d 96, 2003 Miss. App. LEXIS 328 (Miss. Ct. App. 2003).

Victim’s testimony that defendant lured her into a back room in a coin-operated laundry and attacked her with a knife causing a wound to the victim’s hand was sufficient to support defendant’s conviction of aggravated assault despite the fact that no other witness actually observed the assault or that the State did not present evidence of defendant’s motive. Page v. State, 843 So. 2d 96, 2003 Miss. App. LEXIS 328 (Miss. Ct. App. 2003).

Defendant’s conviction for aggravated assault was affirmed, where there was clearly substantial credible evidence upon which the jury could and did find that defendant assaulted the victim. Alonso v. State, 838 So. 2d 309, 2002 Miss. App. LEXIS 493 (Miss. Ct. App. 2002), cert. denied, 837 So. 2d 771, 2003 Miss. App. LEXIS 178 (Miss. Ct. App. 2003).

Evidence was sufficient where the victim and his nephew both testified to the circumstances which led to the victim’s fateful meeting with defendant, the victim also testified with certainty that defendant was the man who shot him, and a doctor testified that metal fragments were recovered from the wound in the victim’s leg. Clay v. State, 829 So. 2d 676, 2002 Miss. App. LEXIS 225 (Miss. Ct. App. 2002).

Evidence was sufficient to support defendant’s conviction for aggravated assault of the victim, as the evidence showed that following a discussion over why defendant was driving a vehicle that the victim had given to his former girlfriend, defendant fired a gun at the victim three times, the victim was struck two times in the legs, and the victim had to obtain treatment at a local hospital for his gunshot wounds. Satcher v. State, 852 So. 2d 595, 2002 Miss. App. LEXIS 877 (Miss. Ct. App. 2002).

A conviction for aggravated assault was reduced where the state failed to prove every element of attempted assault, but instead proved threatened simple assault. Genry v. State, 1999 Miss. App. LEXIS 716 (Miss. Ct. App. Dec. 14, 1999), op. withdrawn, sub. op., 767 So. 2d 302, 2000 Miss. App. LEXIS 426 (Miss. Ct. App. 2000).

There was sufficient evidence from which the jury could find that the defendant’s use of his fist was a means likely to produce death or serious bodily harm, notwithstanding that the victim was not hospitalized and suffered no broken bones, where the force of the defendant’s blow knocked the victim across a table to the floor, knocked out a tooth, cut his lip, and broke his glasses. Harrison v. State, 737 So. 2d 385, 1998 Miss. App. LEXIS 1062 (Miss. Ct. App. 1998).

Evidence was sufficient to support convictions for aggravated assault and aggravated assault on a law enforcement officer where two deputies testified that the defendant fired a weapon in the direction of a carnival midway which was crowded with people and that, as they chased him toward the parking lot, he shot in their direction. Gibson v. State, 731 So. 2d 1087, 1998 Miss. LEXIS 575 (Miss. 1998).

Though the defendant contended that he shot the victim in self-defense only, there existed substantial evidence to support his conviction for aggravated assault where he admitted in a letter written to the district attorney as well as during trial that he shot the victim with a deadly weapon; two different accounts of the incident were given by the defendant and the victim, but the jury was the sole judge of the weight and worth of their testimony. Brown v. State, 726 So. 2d 248, 1998 Miss. App. LEXIS 1119 (Miss. Ct. App. 1998).

Evidence independent of defendant’s alleged admissions established corpus delicti of aggravated assault where victim was admitted to hospital with gunshot wound to his leg, officers testified that victim, while at hospital, said that defendant shot him, and narcotics agent, who was defendant’s brother, recovered weapon from defendant, who admitted shooting victim. Cotton v. State, 675 So. 2d 308, 1996 Miss. LEXIS 198 (Miss. 1996).

A conviction for aggravated assault would be reduced to a conviction for simple assault and the case remanded for resentencing where the evidence established that the defendant, a convict, had threatened a corrections officer with a simulated knife in order to obtain the officer’s keys but there was no evidence that the convict had attempted to cause serious bodily injury to the officer even though he had had every opportunity to do so. Murray v. State, 403 So. 2d 149, 1981 Miss. LEXIS 2157 (Miss. 1981).

Where, in view of the direct contradictions in the state’s proof taken alone, and of the material conflicts in the evidence as a whole, reasonable man engaged solely in the search for clues and uninfluenced by other considerations could not safely act upon the evidence as produced, conviction was reversed and remanded in order that another jury might pass upon it. Cobb v. State, 233 Miss. 54, 101 So. 2d 110, 1958 Miss. LEXIS 356 (Miss. 1958).

Where it appears that at the time the accused at bar fired his gun, the prosecutor armed with a stick was chasing him intending to beat him, state must show that gun was fired with intent to kill and with malice aforethought. Cunningham v. State, 87 Miss. 417, 39 So. 531, 1905 Miss. LEXIS 128 (Miss. 1905).

A defendant is not guilty of shooting with intent to kill another if, when he discharged his gun, he could not see and could not have shot, the other person, a house being between them. Lott v. State, 83 Miss. 609, 36 So. 11, 1903 Miss. LEXIS 79 (Miss. 1903).

19. — — Charge or conviction supportable.

Evidence was sufficient to convict defendant of domestic aggravated assault because an officer was told that defendant, the victim’s husband, had beaten her; when questioned by a nurse, the victim reported that she had been tied up and restrained for an extended period, dragged down a hallway, struck with a hammer (on her hands), and had her head slammed in an oven door; a physician treated the victim for multiple rib fractures, contusions, and lacerations; and a sergeant found and collected a hammer with hair and blood, which later was confirmed as belonging to the victim. Chase v. State, — So.3d —, 2020 Miss. App. LEXIS 47 (Miss. Ct. App. Feb. 18, 2020).

Circuit court properly sentenced defendant to 30 years in custody for aggravated assault because, inter alia, three witnesses’ descriptions of the shooter matched defendant’s physical appearance, the jury instruction regarding the identification of defendant, by the single eyewitness who knew him before the shooting and identified him in a photo array and at trial, was a correct statement of law and left it to the jury to judge the witness’s credibility and weigh it against the other evidence presented at trial, defendant failed to inform the trial court of the witness’s alleged bias, prejudice, or interest, and he also failed to inform the prosecution of his alibi defense. Robinson v. State, 247 So.3d 1212, 2018 Miss. LEXIS 175 (Miss. 2018).

Defendant was properly convicted of felony fleeing a law enforcement officer and aggravated assault on a law enforcement officer because the arresting officer testified that, based on his observations, he had reasonable suspicion of a crime of domestic violence, the arresting officer and the backup officer testified that, before the pursuit began, they saw defendant run a stop sign, and the arresting officer testified that, during his investigation, defendant threatened to kill him and, as he approached defendant’s vehicle after the pursuit, defendant tried to hit him with his vehicle. Topps v. State, 227 So.3d 1177, 2017 Miss. App. LEXIS 572 (Miss. Ct. App. 2017).

Jury’s finding that defendant strangled the victim, defendant’s spouse, was not against the overwhelming weight of the evidence because the victim testified that defendant strangled the victim, the first responding officer testified that the victim’s neck was red with abrasions, and some of the pictures of the victim’s neck showed redness and an abrasion. Ryan v. State, 245 So.3d 491, 2017 Miss. App. LEXIS 466 (Miss. Ct. App. 2017).

Testimony from several witnesses that the victim was trying to run away from defendant and posed no threat when he was shot from behind and that both victims were trying to leave the venue when defendant shot them was sufficient to support defendant’s convictions for aggravated assault and murder. Scott v. State, 220 So.3d 957, 2017 Miss. LEXIS 268 (Miss. 2017).

Trial court properly denied defendant’s motion for a judgment notwithstanding the verdict, or in the alternative, for a new trial, because the evidence was sufficient to find defendant guilty of first-degree murder and aggravated assault where defendant stated that she shot both victims, a former chief medical examiner testified that the second victim died of a fatal gunshot wound to the head and that the manner of death was homicide, and a paramedic testified that the first victim was shot in the right shoulder, hand, and that the bullet grazed her right side. Peoples v. State, 270 So.3d 926, 2018 Miss. App. LEXIS 454 (Miss. Ct. App. 2018).

Circuit court properly denied defendant’s motion for a judgment of acquittal, or in the alternative, for a new trial because, regardless of any inconsistencies as to when the victim identified defendant as the shooter, the victim testified that he had known defendant for several years and that he was “a hundred percent positive it was defendant who was driving the car,” the victim later identified defendant from a photo lineup, particles indicative of gunshot residue were found on defendant’s hands, and the weight of the evidence supported the jury’s finding that defendant was guilty of attempted aggravated assault. Brown v. State, 269 So.3d 1262, 2018 Miss. App. LEXIS 422 (Miss. Ct. App. 2018).

Evidence supported defendant’s felony aggravated domestic violence conviction because, while defendant did not expressly admit that defendant choked defendant’s spouse, defendant did admit that defendant applied pressure to the neck of defendant’s spouse. This explanation, the testimony of defendant’s spouse as to what happened in the assault, the expert opinion of the doctor who treated defendant’s spouse, and the photographs of injuries which the spouse sustained supported the inference that defendant did in fact strangle defendant’s spouse. Lewis v. State, 215 So.3d 994, 2017 Miss. App. LEXIS 182 (Miss. Ct. App. 2017).

Evidence supported defendant’s conviction for aggravated assault because the victim testified as to hearing someone say, “Freeze; don’t move,” looking up to see defendant pointing a gun at the victim, and being shot when running away. Furthermore, defendant’s alleged accomplice testified that defendant shot the victim as the alleged accomplice was selling marijuana to the victim, and another witness testified that immediately after the shooting the victim said that defendant shot the victim. Miskell v. State, 230 So.3d 345, 2017 Miss. App. LEXIS 633 (Miss. Ct. App. 2017).

There was sufficient evidence to convict defendant of attempted aggravated assault based on his act of shooting at a car; there was testimony that there were impact marks on the vehicle after the shooting. Holmes v. State, 201 So.3d 491, 2015 Miss. App. LEXIS 668 (Miss. Ct. App. 2015).

Defendant was properly convicted of simple assault of a law-enforcement officer because defendant fired his gun at an off-duty deputy, who was acting as a security guard at a restaurant, after being asked to leave the restaurant, defendant clearly was aware that the deputy was a police officer, the deputy was acting within the scope of his duty as a law-enforcement officer when defendant assaulted him, and the deputy was statutorily permitted to wear his official uniform while in the performance of private security services. Bates v. State, 172 So.3d 695, 2015 Miss. LEXIS 434 (Miss. 2015).

Defendant assaulted a law enforcement officer, while the officer was acting within the scope of the officer’s duty as a law enforcement officer, because, when defendant assaulted a sheriff’s deputy, the deputy was working off-duty, but in uniform with the sheriff’s approval, as a private security guard at a restaurant. Defendant violated the peace by threatening the deputy when escorted from the restaurant and then firing a gun at the deputy in the parking lot. Bates v. State, 172 So.3d 805, 2014 Miss. App. LEXIS 425 (Miss. Ct. App. 2014), aff'd, 172 So.3d 695, 2015 Miss. LEXIS 434 (Miss. 2015).

Defendant was properly convicted of aggravated assault on a law enforcement officer after he admitted that he beat a jailer with a sock full of bars of soap, then repeatedly kicked him, breaking his hip and pelvis, because defendant admitted assaulting the jailer, who he also did not dispute was a law enforcement officer, there was obviously sufficient evidence of serious bodily injury, and the State was not required to offer expert or medical evidence to prove aggravated assault. Rickman v. State, 150 So.3d 983, 2014 Miss. App. LEXIS 249 (Miss. Ct. App.), cert. denied, 150 So.3d 708, 2014 Miss. LEXIS 575 (Miss. 2014).

Defendant’s conviction for aggravated assault was not against the overwhelming weight of the evidence because three witnesses all testified that he was firing a shotgun from behind a big pine tree near the road; the witnesses’ testimony was corroborated by a spent shotgun shell which was recovered near the tree and by some of the wounds of one of the victims that were attributed to a shotgun; and another witness saw defendant with the shotgun shortly before the shooting. Hayes v. State, 168 So.3d 1065, 2013 Miss. App. LEXIS 744 (Miss. Ct. App. 2013), cert. denied, 2014 Miss. LEXIS 297 (Miss. June 12, 2014), cert. denied, 140 So.3d 940, 2014 Miss. LEXIS 296 (Miss. 2014).

Evidence was sufficient to convict defendant of simple assault and the verdict was not against the weight of the evidence because defendant presented no evidence that he feared imminent death or great bodily harm to himself or to his daughter justifying the use of force; defendant pinned the victim in the door of his vehicle; and the victim testified that she called out in pain several times and had bruises as a result of the incident. Matthews v. City of Madison, 143 So.3d 579, 2013 Miss. App. LEXIS 611 (Miss. Ct. App. 2013), aff'd, 143 So.3d 571, 2014 Miss. LEXIS 373 (Miss. 2014).

Evidence was sufficient to find defendant guilty of aggravated assault because the victim identified defendant as the shooter in a photo lineup prior to trial and another eyewitness identified defendant at trial as the person who shot the victim. Haywood v. State, 130 So.3d 1127, 2013 Miss. App. LEXIS 290 (Miss. Ct. App. 2013), cert. denied, 131 So.3d 577, 2014 Miss. LEXIS 77 (Miss. 2014).

Evidence presented at trial was sufficient to support defendant’s convictions of aggravated assault (Miss. Code Ann. §97-3-7(2)(a)) and burglary of a dwelling (Miss. Code Ann. §97-17-23), as it established that he drove two men to pick up a crowbar and then drove them to the victim’s house, where they used the crowbar to pry open the door and assault the victim; moreover, his confession established his involvement in the crimes. Whitaker v. State, 114 So.3d 725, 2012 Miss. App. LEXIS 481 (Miss. Ct. App. 2012), cert. denied, 2013 Miss. LEXIS 331 (Miss. June 6, 2013).

Defendant’s convictions for aggravated assault and conspiracy to commit aggravated assault were sufficiently supported by the evidence because the jury could have reasonably inferred that an agreement existed between defendant and his nephews to help defendant carry out the assault. Moore v. State, 105 So.3d 390, 2012 Miss. App. LEXIS 506 (Miss. Ct. App. 2012), cert. denied, 109 So.3d 567, 2013 Miss. LEXIS 101 (Miss. 2013).

Evidence was sufficient to convict defendant of aggravated assault. Though a witness never stated that she saw him fire a gun, her testimony that he had a firearm and was near the scene of the incident just before the shooting, that he was running behind her holding a gun, and that she then heard shooting, constituted circumstantial evidence to that effect. Jones v. State, 95 So.3d 641, 2012 Miss. LEXIS 410 (Miss. 2012).

Trial court did not err by denying defendant’s motion for a directed verdict because under the indictment, which charged defendant with attempted aggravated assault in violation of Miss. Code Ann. §97-3-7(2), the State simply had to prove that defendant attempted to cause bodily injury to the victim with a deadly weapon, and based on the evidence presented at trial, a reasonable jury could have concluded that defendant intended to cause bodily injury to the victim by using a deadly weapon; during the trial, the victim testified that he was involved in an altercation with defendant on the day of the incident, the victim and witnesses all testified that they saw defendant raise a gun and fire the gun at their car, and a bullet was recovered from the seal of the driver’s side door, which was where the victim was sitting. Johnson v. State, 50 So.3d 335, 2010 Miss. App. LEXIS 274 (Miss. Ct. App. 2010), cert. denied, 50 So.3d 1003, 2011 Miss. LEXIS 7 (Miss. 2011).

Circuit court did not err in denying a defendant’s motion for a directed verdict because the evidence before the jury was more than sufficient to sustain a finding of guilty of aggravated assault in violation of Miss. Code Ann. §97-3-7(2); the evidence showed that defendant shot the victim after a tussle over the gun had transpired, and regardless of whether defendant was attempting to pistol whip or shoot the victim, there was still sufficient evidence to show that defendant knowingly and purposely caused bodily injury to the victim by using a deadly weapon. Adams v. State, 33 So.3d 1179, 2010 Miss. App. LEXIS 207 (Miss. Ct. App. 2010).

Defendant was properly convicted of aggravated assault, a violation of Miss. Code Ann. §97-3-7(2), because, although the circuit judge abused her discretion by prohibiting defendant from developing evidence to impeach the victim’s earlier denial of bias against defendant, due to the overwhelming evidence of defendant’s guilt, the complained of error was harmless. Banks v. State, 45 So.3d 676, 2010 Miss. App. LEXIS 84 (Miss. Ct. App. 2010).

Defendant’s argument that the State failed to prove an essential element of aggravated assault on a law enforcement officer because he did not knowingly shoot the law enforcement officers was without merit Miss. Code Ann. §97-3-7(2). Defendant asserted that he thought someone was breaking into the apartment and fired a gun toward the door in self-defense, but the appellate court stated that the jury was presented with sufficient evidence to determine that defendant knew or should have known that the men outside his door were police officers; in part, an officer testified that all members of the team were announcing their presence as loudly as they could. Mayers v. State, 42 So.3d 33, 2010 Miss. App. LEXIS 88 (Miss. Ct. App.), cert. denied, 42 So.3d 24, 2010 Miss. LEXIS 437 (Miss. 2010).

Defendant’s conviction for aggravated assault in violation of Miss. Code Ann. §97-3-7(2)(b) was appropriate because it was entirely likely for reasonable jurors to conclude that the act of attaching a homemade knife to the end of a crutch and then extending the crutch in the vicinity of the victim’s head and neck amounted to an attempt at causing bodily injury with a weapon likely to cause serious bodily injury. Kendrick v. State, 21 So.3d 1186, 2009 Miss. App. LEXIS 811 (Miss. Ct. App. 2009).

Defendant’s convictions for house burglary, aggravated assault in violation of Miss. Code Ann. §97-3-7(2), armed robbery, and auto theft were proper because the evidence was sufficient. In part, defendant severely beat the victim, demanded that she give him her purse, and then took her purse, a gun, and a set of keys to the victim’s vehicle. The victim later identified defendant, based upon her own independent recollection, in a photographic lineup. Brunner v. State, 37 So.3d 645, 2009 Miss. App. LEXIS 755 (Miss. Ct. App. 2009), cert. denied, 36 So.3d 455, 2010 Miss. LEXIS 323 (Miss. 2010).

Conviction for aggravated assault under Miss. Code Ann. §97-3-7(2) was not contrary to the weight of the evidence because the State was not required to produce an actual item used to cut the victim’s throat. The victim testified about her stabbing and the object used, and she also showed the jury the scars on her neck. Perryman v. State, 16 So.3d 41, 2009 Miss. App. LEXIS 145 (Miss. Ct. App.), cert. denied, 15 So.3d 426, 2009 Miss. LEXIS 404 (Miss. 2009).

Where defendant disarmed his victim and fired the gun in the victim’s direction and into a crowded nightclub, killing the victim and another and wounding three others, the trial court did not err in denying defendant’s motion for a judgment notwithstanding the verdict because the evidence was sufficient to support defendant’s convictions of murder, aggravated assault, and felon in possession of a firearm. Roberson v. State, 19 So.3d 95, 2009 Miss. App. LEXIS 98 (Miss. Ct. App. 2009).

Defendant’s conviction for aggravated assault in violation of Miss. Code Ann. §97-3-7(2) was appropriate even though there was no direct proof that defendant intended to cause serious bodily injury to the victim because the existence of such intent could have been logically deduced from the victim’s testimony that he feared for his own safety, along with other testimony that defendant appeared to have come straight at the victim with his vehicle. Commodore v. State, 994 So. 2d 864, 2008 Miss. App. LEXIS 658 (Miss. Ct. App. 2008).

Trial court did not abuse its discretion by denying a defendant’s motion for a new trial with respect to a simple assault charge because: (1) the only essential fact in dispute was whether a car was occupied when defendant fired shots into it; (2) evidence that the car was occupied included testimony by four adults that each of them and two minor children were in the car at the time; (3) the only contradictory evidence was defendant’s own testimony and a written statement of his wife, which was taken shortly after the incident; and (4) at trial, defendant’s wife changed her version of the events and testified that she was suffering from post-traumatic stress at the time she wrote the statement. Smith v. State, 982 So. 2d 1007, 2008 Miss. App. LEXIS 304 (Miss. Ct. App. 2008).

Evidence was sufficient to support a conviction of both murder and aggravated assault, under Miss. Code Ann. §§97-3-19(1),97-3-7(2), because a rational juror could have concluded beyond a reasonable doubt that defendant was guilty of both murder and aggravated assault because (1) the evidence tended to show that defendant acted recklessly in the commission of an imminently dangerous act and with extreme indifference to human life; (2) the State produced evidence showing that defendant fired a gun inside of an apartment that contained two unarmed individuals, as well as several children; (3) the State also established that defendant’s firing of the gun resulted in the death of his wife and serious bodily injury to his stepson; and (4) defendant admitted pulling out the gun and firing it inside the apartment. Readus v. State, 997 So. 2d 941, 2008 Miss. App. LEXIS 249 (Miss. Ct. App. 2008), cert. denied, 999 So. 2d 852, 2009 Miss. LEXIS 27 (Miss. 2009).

Defendant’s conviction for the aggravated assault of his sister-in-law in violation of Miss. Code Ann. §97-3-7(2)(b) was appropriate because the evidence presented to the jury was more than sufficient to prove that an individual committed the assassination of defendant’s brother, as well as the aggravated assault of the brother’s wife while in the employ of defendant. In part, two witnesses testified that after their failed attempts to murder the brother and his wife in exchange for money, defendant contacted them and told them that he found someone else to complete the job. Vickers v. State, 994 So. 2d 200, 2008 Miss. App. LEXIS 208 (Miss. Ct. App.), cert. denied, 998 So. 2d 1010, 2008 Miss. LEXIS 675 (Miss. 2008).

Defendant’s conviction for simple assault in violation of Miss. Code Ann. §97-3-7(1) was appropriate because the evidence supported the reckless element of simple assault, whether the act was intentional or not, and a resulting bodily injury. Defendant admitted that he grabbed the victim’s shirt, and the end result of that scuffle was the victim’s broken leg. Graves v. State, 984 So. 2d 1035, 2008 Miss. App. LEXIS 92 (Miss. Ct. App. 2008).

Evidence was sufficient to convict defendant of aggravated assault under Miss. Code Ann. §97-3-7(2)(b) because: (1) the jury was instructed as to an alibi defense and resolved the issue against defendant; (2) evidence was presented that defendant was angry with the victim because of the victim’s refusal to provide him with free liquor, and that defendant lunged at and pushed the victim, who was left with a knife dangling in his neck; (3) testimony that the victim did not see the knife being projected at him was of no consequence. Crawford v. State, 972 So. 2d 44, 2008 Miss. App. LEXIS 5 (Miss. Ct. App. 2008).

Defendant’s conviction for aggravated assault in violation of Miss. Code Ann. §97-3-7(2)(a) was appropriate because he admitted on cross-examination that the victim was seated in a vehicle when defendant fired the shot. Even if the appellate court was to believe that the victim was at some point wielding a baseball bat and that, at that point in time, defendant was afraid of being struck by the bat, defendant’s own testimony revealed that the victim was not posing a threat when defendant fired the pistol. Dao v. State, 984 So. 2d 352, 2007 Miss. App. LEXIS 816 (Miss. Ct. App. 2007), cert. denied, 984 So. 2d 277, 2008 Miss. LEXIS 281 (Miss. 2008).

Defendant’s conviction for aggravated assault pursuant to Miss. Code Ann. §97-3-7(2) was appropriate because the victim testified that defendant swung at him and that he was bleeding as a result; another witness testified that he observed defendant and the victim argue and saw a “hand motion” from defendant during that argument, and afterwards the victim stated that defendant had cut him. White v. State, 958 So. 2d 290, 2007 Miss. App. LEXIS 412 (Miss. Ct. App. 2007).

Evidence supported a finding that defendant committed a delinquent act when she assaulted a teacher under Miss. Code Ann. §97-3-7(1); defendant admitted to pushing a desk in front of the teacher, and she never claimed that this was an accident or that she did not intend to injure the teacher. In the Interest of K.G., 957 So. 2d 1050, 2007 Miss. App. LEXIS 403 (Miss. Ct. App. 2007).

Evidence was legally sufficient for the jury to find defendant guilty of simple assault on a law enforcement officer under Miss. Code Ann. §97-3-7(1) because: (1) the state produced evidence that the deputy was a law enforcement officer acting within the scope of his duty when he encountered defendant during a traffic stop; (2) the deputy testified that defendant struck him in the left temple area; (3) the deputy stated that defendant struck at his mouth and he positioned himself for a second strike; (4) the deputy testified that defendant used his left elbow while striking him in the temple and that the strike had to be intentional due to defendant having to extend his elbow behind his back to strike the deputy; (5) the deputy testified that defendant used his fist when striking him in the mouth; and (6) the deputy’s testimony alone was sufficient for a conviction. Keys v. State, 963 So. 2d 1193, 2007 Miss. App. LEXIS 299 (Miss. Ct. App.), cert. denied, 973 So. 2d 245, 2007 Miss. LEXIS 703 (Miss. 2007).

In a simple assault on a law enforcement officer case, the trial court properly denied defendant’s motion for a new trial because the weight of the evidence supported the verdict because: (1) the deputy testified that defendant intentionally struck him in the temple and the mouth; (2) although defendant denied drinking alcohol, 13 beer cans were found in the toolbox in the back of his truck; (3) an empty beer can was found on the floor of his truck; (4) defendant admitted that he resisted arrest because the deputy was trying to charge him for a crime for which he claimed he did not commit; and (5) although defendant claimed that he might have accidentally hit the deputy, the deputy testified that he was struck intentionally. Keys v. State, 963 So. 2d 1193, 2007 Miss. App. LEXIS 299 (Miss. Ct. App.), cert. denied, 973 So. 2d 245, 2007 Miss. LEXIS 703 (Miss. 2007).

Conviction for aggravated assault under Miss. Code Ann. §97-3-7(2)(b) was supported by the sufficiency of the evidence because witnesses testified that defendant was an aggressor in a drunken fight, he was the only person with a knife, and he was involved voluntarily; therefore, a trial court’s failure to grant a motion for a directed verdict, failure to give a peremptory instruction, or failure to grant a judgment notwithstanding the verdict was not erroneous. Lackie v. State, 971 So. 2d 601, 2007 Miss. App. LEXIS 293 (Miss. Ct. App.), cert. denied, 973 So. 2d 244, 2007 Miss. LEXIS 683 (Miss. 2007).

Defendant’s convictions for two counts of aggravated assault were appropriate because the appellate court was unable to say that the prosecutor’s overzealousness impacted the jury’s verdict; there were several witnesses, in addition to the two victims, that testified that defendant was the perpetrator of the assault on the one victim and the other victim’s testimony alone was sufficient to support defendant’s conviction for stabbing her. Whitehead v. State, 967 So. 2d 56, 2007 Miss. App. LEXIS 181 (Miss. Ct. App.), cert. denied, 966 So. 2d 172, 2007 Miss. LEXIS 601 (Miss. 2007).

Evidence was sufficient to support defendant’s conviction of aggravated assault for pouring a bottle of rubbing alcohol on his girlfriend and then setting her on fire because, even though defendant and his girlfriend argued that the fire was an accident, the state offered substantial evidence to contradict their testimony. Taylor v. State, 954 So. 2d 944, 2007 Miss. LEXIS 183 (Miss. 2007).

Defendant’s conviction for aggravated assault was appropriate because the evidence showed that the victim’s knife wound required 40 stitches and that defendant nearly severed the victim’s ear in his attack on the victim. Kimble v. State, 920 So. 2d 1058, 2006 Miss. App. LEXIS 106 (Miss. Ct. App. 2006).

Defendant’s conviction for aggravated assault was appropriate because the evidence was sufficient to support the jury’s verdict; the state had produced four witnesses, all of whom testified that the victim did not have a knife, or any other weapon, at the time of the incident, thus negating defendant’s argument that the victim was the aggressor. Hawthorne v. State, 944 So. 2d 928, 2006 Miss. App. LEXIS 910 (Miss. Ct. App. 2006).

There was sufficient evidence to sustain a conviction for aggravated assault, despite the fact that a victim did not actually see defendant ram his car before a robbery allegedly occurred, because defendant admitted to being in an accident, portions of defendant’s vehicle were found at the scene, and defendant’s vehicle sustained heavy damage. Sanders v. State, 949 So. 2d 92, 2006 Miss. App. LEXIS 702 (Miss. Ct. App. 2006).

Motion for judgment notwithstanding the verdict or a new trial was properly denied because there was sufficient evidence to sustain a conviction for aggravated assault where a murder victim’s son was injured with a knife while trying to fend off the attack; the knife used was a deadly weapon, and the fact that no permanent injuries were suffered did not mean that the correct charge was simple assault. Wilson v. State, 936 So. 2d 357, 2006 Miss. LEXIS 435 (Miss. 2006).

Defendant’s convictions for murder and aggravated assault in violation of Miss. Code Ann. §97-3-19 and Miss. Code Ann. §97-3-7(2) were proper because there was sufficient evidence from which a rational jury could have concluded that defendant possessed the gun and shot the victim with the gun, without any struggle between the two. Anthony v. State, 936 So. 2d 471, 2006 Miss. App. LEXIS 590 (Miss. Ct. App. 2006).

Defendant’s convictions for murder and aggravated assault were proper where the evidence was sufficient to support the convictions because the State not only produced a complaining victim, but also an eyewitness to the crime. Additionally, the living victim testified that defendant shot him in the neck after defendant shot and killed the other victim. McGee v. State, 929 So. 2d 353, 2006 Miss. App. LEXIS 53 (Miss. Ct. App. 2006).

Defendant’s actions at the first victim’s home were sufficient to support defendants’ convictions for the crimes of burglary and simple assault because (1) defendants were present at the home for the sole purpose to obtain money; (2) when the victims did not voluntarily allow defendants into the home, defendants went into a rage and broke into the dwelling and assaulted two of the victims; (3) one of the defendants then proceeded to commit a further act of violence when he burst the windshield of one of the second victim’s vehicle with a large rock; (4) the other defendant continued to threaten and intimidate the first victim until she surrendered her paycheck whereupon defendants left the premises and cashed the check in order to satisfy a debt; and (5) the jury could reasonably infer that defendants formed the intent to assault those inside the home immediately upon gaining entry to the home. Arbuckle v. State, 894 So. 2d 619, 2004 Miss. App. LEXIS 1080 (Miss. Ct. App. 2004), cert. dismissed, 904 So. 2d 184, 2005 Miss. LEXIS 397 (Miss. 2005).

Defendant’s convictions on two counts of aggravated assault were proper under Miss. Code Ann. §97-3-7(2)(b) where the elements of the offense were clearly established; defendant had a knife and struck the victims, both of whom required medical attention. Further, a witness testified that she had seen defendant walk through her backyard and throw down an object, which later turned out to be the knife. McManis v. State, 901 So. 2d 648, 2004 Miss. App. LEXIS 901 (Miss. Ct. App. 2004), cert. denied, 901 So. 2d 1273, 2005 Miss. LEXIS 300 (Miss. 2005).

Where victim and defendant’s ex-girlfriend both testified defendant stabbed the victim when he was asked to leave his ex-girlfriend’s apartment, sufficient evidence existed to support defendant’s conviction for aggravated assault. Shorter v. State, 888 So. 2d 452, 2004 Miss. App. LEXIS 608 (Miss. Ct. App.), cert. denied, 888 So. 2d 1177, 2004 Miss. LEXIS 1478 (Miss. 2004).

There was sufficient evidence to support a conviction for aggravated assault based on the fact that victims of a robbery were put in fear for their lives by the exhibition of a deadly weapon; moreover, the evidence showed that defendant and another man used a baseball bat to beat a victim into unconsciousness, another victim was raped, and several victims were tied together with telephone cords and wires. Perkins v. State, 863 So. 2d 47, 2003 Miss. LEXIS 657 (Miss. 2003).

State was not required to prove that defendant had a prior conviction for simple domestic violence as the State was only required to prove that a simple domestic violence charge had been proven since defendant was not convicted of the original charge of domestic violence, second offense, and, indeed, the trial court granted defendant’s motion to dismiss the second offense aspect of the charge. Murrell v. City of Indianola, 858 So. 2d 183, 2003 Miss. App. LEXIS 1005 (Miss. Ct. App. 2003).

Though the testimony of defendant and the woman conflicted about his intent in entering the woman’s home, the jury was entitled to believe the woman’s testimony, as opposed to defendant’s testimony, that defendant forced his way into her house, placed a makeshift noose around her neck, and threatened to kill her, as defendant admitted entering her house and backing her against a wall; accordingly, the evidence was legally sufficient to support defendant’s conviction for aggravated assault as the evidence was not such that no reasonable juror could have assigned guilt to defendant on that charge. Ferguson v. State, 865 So. 2d 369, 2003 Miss. App. LEXIS 792 (Miss. Ct. App. 2003), cert. denied, 866 So. 2d 473, 2004 Miss. LEXIS 76 (Miss. 2004).

Because (1) the evidence showed that, while police attempted to arrest defendant on an outstanding warrant, defendant jumped into a vehicle, twice drove the vehicle to strike a police officer, and then defendant drove the vehicle into another police officer vehicle, causing injury, and (2) the court was not persuaded that the evidence tending to demonstrate defendant’s innocence was of such weight that it constituted a substantial miscarriage of justice to permit the present verdicts to stand, the court affirmed defendant’s convictions of taking possession of or taking away a motor vehicle and aggravated assault on a law enforcement officer. Hogan v. State, 854 So. 2d 497, 2003 Miss. App. LEXIS 852 (Miss. Ct. App. 2003).

Where jury heard testimony from both sides and viewed a videotape of the assault, a reasonable and fair minded jury was presented enough evidence to reach a guilty verdict on the inmate’s charge of assaulting a law enforcement officer for assaulting the prison warden. Hicks v. State, 845 So. 2d 755, 2003 Miss. App. LEXIS 434 (Miss. Ct. App. 2003).

There was sufficient evidence presented to support defendant’s conviction on the charge of aggravated assault because a physician testified that a victim had been assaulted with a gun, a blood covered magazine clip for a gun was found under a seat where defendant had been sitting, and witnesses testified that they had noticed laser lights on their chests when defendant was in their presence. Crosby v. State, 856 So. 2d 523, 2003 Miss. App. LEXIS 403 (Miss. Ct. App.), cert. denied, 860 So. 2d 1223, 2003 Miss. LEXIS 814 (Miss. 2003).

Evidence was sufficient to convict a defendant of aggravated assault, where his accomplice admitted in his statement for his plea agreement that he called to defendant to assist him while he was fighting with the assault victim, and the victim identified defendant at trial. Wells v. State, 849 So. 2d 1231, 2003 Miss. LEXIS 213 (Miss. 2003).

Defendant’s conviction for aggravated assault was proper where his objection to other wrong or criminal acts being admitted was untimely and where the evidence was sufficient to find him guilty of the crime; two eyewitnesses identified defendant and they stated that he pointed a handgun in their directions and fired several times. Ball v. State, 845 So. 2d 736, 2003 Miss. App. LEXIS 441 (Miss. Ct. App. 2003).

Where evidence showed that defendant and his father entered the victim’s home armed with a sword, a knife, a baton, and a stun gun, and victim was cut with the sword or knife (he was not sure which) when he took it from the defendant, the evidence was sufficient to convict the defendant of assault with a deadly weapon. Al-Fatah v. State, 856 So. 2d 494, 2003 Miss. App. LEXIS 333 (Miss. Ct. App.), cert. denied, 860 So. 2d 315, 2003 Miss. LEXIS 714 (Miss. 2003).

Trial court properly denied defendant’s motion for a directed verdict, as the evidence, viewed in the light most favorable to the verdict, was sufficient to show defendant fired multiple shots at the victim, that defendant’s shots struck the victim’s legs, and that the victim had to be treated for the gunshot wounds at a hospital. Satcher v. State, 852 So. 2d 595, 2002 Miss. App. LEXIS 877 (Miss. Ct. App. 2002).

Evidence supported a conviction for aggravated assault upon a law enforcement officer where (1) the defendant inmate struck a corrections officer with a sharp object that broke the skin and caused bleeding, (2) a toothbrush was found nearby after the blow was struck, and (3) another officer testified from his training and experience as a law enforcement officer that the toothbrush had a sharpened end and could cause serious bodily injury. Spann v. State, 797 So. 2d 365, 2001 Miss. App. LEXIS 214 (Miss. Ct. App. 2001).

The defendant was not entitled to judgment notwithstanding the verdict or a new trial where, in the face of contradictory evidence, the jury determined that the defendant used unreasonable force in evicting trespassers from his property where he placed his hand on the victim and pointed a gun at him. Tate v. State, 784 So. 2d 208, 2001 Miss. LEXIS 123 (Miss. 2001).

Evidence was sufficient to support a conviction for aggravated assault where there was testimony that the defendant shot the victim in the foot after a conversation between the defendant and the victim’s son; a contrary determination was not required by contradictory evidence as to whether the victim had a knife in his hand at the time of the incident. Moore v. State, 785 So. 2d 308, 2001 Miss. App. LEXIS 89 (Miss. Ct. App. 2001).

Evidence was sufficient to support a conviction for aggravated assault where the defendant shot the victim and, although the defendant claimed self-defense, every other witness to the incident testified that the defendant was unprovoked when he drew a gun and began shooting at the victim, and that he was the initial aggressor. Rice v. State, 782 So. 2d 171, 2001 Miss. App. LEXIS 10 (Miss. Ct. App. 2001).

Evidence was sufficient to establish aggravated assault where (1) the defendant entered a store under the false pretense of experiencing mechanical trouble with his vehicle, (2) as the store owner and his employees worked to assist the defendant, he grabbed a store employee, wrapped one arm around her and used his other arm to place a butcher knife at her throat, (3) as he grabbed the employee, he announced he was “fooling” those inside the store and intended to rob the establishment, and (4) the defendant then released the employee and fled when the store owner produced a firearm and pointed it at him. Genry v. State, 767 So. 2d 302, 2000 Miss. App. LEXIS 426 (Miss. Ct. App. 2000).

Evidence was sufficient to support a conviction for aggravated assault where (1) the defendant lay in wait for the victim in the latter’s mobile home, (2) he kicked her in the back and shoulder and stomped her face, and (3) he then took a piece of a broken vase and inflicted a severe cut on her face. Owens v. State, 763 So. 2d 917, 2000 Miss. App. LEXIS 323 (Miss. Ct. App. 2000).

Evidence supported a conviction for aggravated assault where two eyewitnesses testified that the defendant, at a time when he was not threatened with any imminent physical harm, purposely discharged a firearm in the direction of the victim and that the bullets discharged from the weapon, and in fact came dangerously close to striking her; the defendant’s competing version of events, i.e., that he purposely avoided any attempt to injure the victim and was firing in self-defense merely to distract a third party in his preparations to fire his own weapon at the defendant offered a classic conflict in the evidence that the jury resolved against the defendant. Brown v. State, 763 So. 2d 207, 2000 Miss. App. LEXIS 318 (Miss. Ct. App. 2000).

Evidence was sufficient to establish a bodily injury and, thus, to support a conviction where the victim, who was a police officer, that he experienced pain due to the defendant’s hitting him in the back with his fists. Jones v. State, 756 So. 2d 852, 2000 Miss. App. LEXIS 76 (Miss. Ct. App. 2000).

Evidence was sufficient to support a conviction for simple assault where the victim testified that he experienced pain due to the defendant’s hitting him in the back with his fists. Jones v. State, 1999 Miss. App. LEXIS 613 (Miss. Ct. App. Nov. 9, 1999).

Evidence was sufficient to support a conviction for aggravated assault, notwithstanding the assertion of self-defense by the defendant, where it appeared that the defendant shot the victim without justification: (1) a neighbor at the scene who was 15 feet away from the victim when he was shot testified that the victim did not have a gun, (2) police officers testified that there was no physical evidence showing that the defendant’s car had been struck by bullets, (3) police officers testified that physical evidence showed that the shots in the defendant’s windshield were fired from the inside of the car, and (4) the defendant left the scene prior to the incident and returned with a gun. Wooten v. State, 752 So. 2d 1105, 1999 Miss. App. LEXIS 659 (Miss. Ct. App. 1999).

Evidence was sufficient to support a conviction for aggravated assault on a law enforcement officer where the officer testified that (1) he responded to a disturbance call regarding shots fired at an apartment complex, (2) he saw a vehicle leaving from that direction in a hurry as he approached the area and attempted to block the passage of the vehicle with his police cruiser, but that the vehicle went around his patrol car, (3) he then turned on his blue lights and siren and pursued the vehicle, (4) just as the vehicle turned a corner, it began pulling to the side just behind a parked car, and (5) the defendant rolled out of the back passenger side of the vehicle, pointed a gun, fired it, and ran away. Norwood v. State, 741 So. 2d 992, 1999 Miss. App. LEXIS 356 (Miss. Ct. App. 1999).

Evidence was sufficient to establish aggravated assault where (1) the victim testified that she was struck repeatedly on her buttocks, lower extremities, and arms with a pool stick and was choked about the neck, (2) such testimony was corroborated by the investigating officer, who testified that he saw bruises on the victim’s arms and legs and that, while taking her statement, he noted that the victim was in pain, (3) the registered nurse on duty at hospital at which the victim was treated testified that she had a red mark on the right side of her neck and bruises on her buttocks, legs, and arms, (4) an x-ray of the victim’s hand revealed a broken finger, and (5) a CAT scan was also performed due to the trauma to the victim’s head and her statement that she had been in and out of consciousness. Rushing v. State, 1999 Miss. App. LEXIS 350 (Miss. Ct. App. June 22, 1999).

Evidence was sufficient to sustain a conviction for aggravated assault where the physician who treated the victim at the emergency room testified that the injuries were possibly “severe,” in that there was a risk of intercranial injury, and the physician who ultimately performed surgery on the victim’s broken nose stated that the swelling was so severe that surgery had to be postponed for one week. Gayle v. State, 743 So. 2d 392, 1999 Miss. App. LEXIS 197 (Miss. Ct. App. 1999).

In a prosecution for simple assault upon a law enforcement officer, the trial court did not err in finding that the victim was a “law enforcement officer” acting within the scope of his duties at the time of the offense, even though he had not attended the law enforcement training academy as required by §45-6-3(c), since he was a “de jure deputy sheriff” where he was appointed by the sheriff pursuant to §19-25-19 to act as a jailer, and he was wearing a signed identification card and a uniform at the time of the offense. Amerson v. State, 648 So. 2d 58, 1994 Miss. LEXIS 596 (Miss. 1994).

In a prosecution for rape, the evidence was sufficient to support an instruction on the charge of aggravated assault where the victim testified that the defendant had repeatedly punched her in the face and head during his attack on her, she further testified that she had spent about 4 days in the hospital and that she was told to see a neurologist because of a damaged nerve in her head, the emergency room physician testified that the victim had suffered significant facial trauma and that both of her eyes were swollen shut, the victim had fresh blood in both nostrils and significant bruising and bleeding into the skin of her face, and photographs of the victim taken after the attack illustrated the nature of her injuries. The evidence was also sufficient to support an instruction on the lesser included offense of simple assault where the defendant transported the victim to the hospital after the attack. Taylor v. State, 577 So. 2d 381, 1991 Miss. LEXIS 120 (Miss. 1991).

There was sufficient evidence to support a conviction for aggravated assault where the victim had been bitten on the face and had been stabbed several times in the neck and hand with a pen. Simmons v. State, 568 So. 2d 1192, 1990 Miss. LEXIS 605 (Miss. 1990).

Evidence was sufficient to prove aggravated assault where, during argument, defendant threw unidentified liquid into victim’s face and attacked victim with knife, cutting him several times around face and neck. Black v. State, 506 So. 2d 264, 1987 Miss. LEXIS 2468 (Miss. 1987).

Jury’s finding Vietnam War veteran, suffering from post-traumatic stress disorder, guilty of aggravated assault was not against the overwhelming weight of the evidence, in view of the conflicting opinions of 2 psychiatric experts as to whether he knew right from wrong at the time he stabbed victim, and lay testimony as to facts surrounding the incident. Norris v. State, 490 So. 2d 839, 1986 Miss. LEXIS 2477 (Miss. 1986).

Admission of aggravated assault defendant that defendant cut victim with knife having 5 to 6 inch blade, testimony by emergency room physician establishing that wound cut several major arteries and would have been life threatening if not treated, and testimony of victim that prior to assault, defendant threatened to kill victim is sufficient evidence to establish that defendant purposely caused serious bodily injury to victim with deadly weapon, which is all that is required for aggravated assault conviction. Nobles v. State, 464 So. 2d 1151, 1985 Miss. LEXIS 1919 (Miss. 1985).

Evidence was sufficient to support the conviction of defendant for aggravated assault on a policeman where officers had followed defendant after observing his reckless driving and their identity as policemen should have been clear since they were in a marked car, yet, when the officers overtook defendant and one asked for his license, defendant shot him and continued shooting him after he was knocked down by the first bullet. Kinney v. State, 336 So. 2d 493, 1976 Miss. LEXIS 1509 (Miss. 1976).

Where defendant armed himself with a deadly weapon, declared that he would not be brought to jail upon a warrant, and shot an arresting officer, he placed himself within the category of persons subject to the penalties prescribed in this section. Maroone v. State, 317 So. 2d 25, 1975 Miss. LEXIS 1722 (Miss. 1975).

Although conflicting in part, evidence that upon husband’s unexpected return home, accused ran out of the back door, came around the house and shot the husband as he was standing on the front porch, unarmed, and was not threatening accused, supported conviction. Shannon v. State, 237 Miss. 550, 115 So. 2d 293, 1959 Miss. LEXIS 502 (Miss. 1959), overruled, Ray v. State, 381 So. 2d 1032, 1980 Miss. LEXIS 1930 (Miss. 1980).

Evidence, including the testimony of the victim, that immediately before the shooting he had seen the accused with a shotgun only a short distance away and that the accused had shot him, sustained a conviction of assault and battery with intent to kill. Williams v. State, 232 Miss. 613, 100 So. 2d 137, 1958 Miss. LEXIS 309 (Miss. 1958).

Although the evidence was conflicting, proof for the state that accused struck at the neck of another with a handsaw was sufficient to sustain conviction. Wixon v. State, 229 Miss. 430, 90 So. 2d 859, 1956 Miss. LEXIS 622 (Miss. 1956).

Evidence that the defendant pointed a pistol at the prosecuting witness to compel the latter to drop an axe which he had in his hand and which he had carried over to the car upon being called there, was sufficient to justify a conviction of an assault on a charge of assault and battery with intent to kill, where it did not appear that the pistol was aimed in self-defense, or that defendant was in any danger at the time. Eaton v. State, 186 Miss. 459, 191 So. 93, 1939 Miss. LEXIS 229 (Miss. 1939).

Evidence of threat to kill, unless certain papers signed, would support charge of assault. Stroud v. State, 131 Miss. 875, 95 So. 738, 1923 Miss. LEXIS 222 (Miss. 1923).

20. — —Charge or conviction unsupportable.

Defendant was erroneously convicted of four counts of aggravated assault based on the act of firing one shot into a vehicle when the evidence supported only one attempt, as defendant’s attempt to discharge a gun one time did not support the inference that defendant intended to injure four individuals. Foreman v. State, 51 So.3d 957, 2011 Miss. LEXIS 38 (Miss. 2011).

Police officer’s action in turning onto road despite fact that view of oncoming traffic was blocked by row of hedges, while negligent, did not turn collision with motorist into crime of assault, so as to relieve motorist of having to comply with notice requirements in Tort Claims Act in subsequent personal injury claim against city and officer. City of Jackson v. Lumpkin, 697 So. 2d 1179, 1997 Miss. LEXIS 306 (Miss. 1997), overruled, Carr v. Town of Shubuta, 733 So. 2d 261, 1999 Miss. LEXIS 72 (Miss. 1999), overruled in part, Stuart v. Univ. of Miss. Med. Ctr., 21 So.3d 544, 2009 Miss. LEXIS 396 (Miss. 2009). But see Carr v. Town of Shubuta, 733 So. 2d 261, 1999 Miss. LEXIS 72 (Miss. 1999), overruled in part, Stuart v. Univ. of Miss. Med. Ctr., 21 So.3d 544, 2009 Miss. LEXIS 396 (Miss. 2009).

In a prosecution for simple assault upon a law enforcement officer, the evidence was insufficient to support a jury determination that the defendant caused “injury” where there was no testimony that the officer suffered pain, illness or impairment, and the circumstantial evidence concerning the defendant’s actions, though sufficient to allow an inference that the officer suffered pain, was weak; circumstantial evidence should be supportive of, not in lieu of, direct testimony which is readily at hand, and therefore a new trial would be required so that the officer could be asked whether he suffered pain. Murrell v. State, 655 So. 2d 881, 1995 Miss. LEXIS 234 (Miss. 1995).

A conviction of aggravated assault of an 8-year-old child was not supported by the evidence where the defendant, while committing a rape of the child’s mother, pointed a gun toward the child and told her to “shut up,” but did not touch her or make any advances toward her; the defendant had the means and opportunity to cause the child great bodily harm but did not “attempt” to do so since there were no extraneous events which prevented him from discharging the firearm. Brown v. State, 633 So. 2d 1042, 1994 Miss. LEXIS 122 (Miss. 1994).

Although defendant was charged with and convicted of aggravated assault, defendant was guilty of no more than simple assault where the victim’s injuries were not serious and where there was insufficient evidence to prove that defendant intended to cause her serious bodily injury. Brooks v. State, 360 So. 2d 704, 1978 Miss. LEXIS 2306 (Miss. 1978).

One may not be convicted of assault with intent to kill where the evidence fails to show beyond a reasonable doubt that he used more force than was reasonably necessary to protect his employer’s property from destruction. Higgenbotham v. State, 237 Miss. 841, 116 So. 2d 407, 1959 Miss. LEXIS 540 (Miss. 1959).

Testimony that defendant pointed pistol at deputy who was attempting to arrest him and said that he, defendant, would shoot deputy if he moved, and that deputy did not move and defendant did not shoot, does not support verdict and judgment of felonious intent to kill and murder. Craddock v. State, 204 Miss. 606, 37 So. 2d 778, 1948 Miss. LEXIS 393 (Miss. 1948).

Evidence which shows that the accused having an axe in his hands was not in striking distance of the state’s witness nor sufficiency near to put the witness in fear of being struck, and accused was not restrained, is insufficient to justify a conviction of assault. Grimes v. State, 99 Miss. 232, 54 So. 839, 1911 Miss. LEXIS 197 (Miss. 1911).

21. —Variance between indictment and proof.

There was no variance between an indictment charging the defendant with assault and battery with intent to kill a particular person and testimony introduced by the prosecution showing that the defendant had no intention to shoot the person he actually shot but mistook that person he shot for another, and shot the victim thinking that he was shooting the other. Brandon v. State, 263 So. 2d 560, 1972 Miss. LEXIS 1336 (Miss. 1972).

In prosecution for assault and battery with intent to kill where evidence showed that the accused had no ill will toward the person assaulted but made a mistake as to identity and the indictment charged that the accused intended to kill the person she assaulted, the variance between evidence and indictment was not fatal. Garner v. State, 227 Miss. 840, 87 So. 2d 80, 1956 Miss. LEXIS 761 (Miss. 1956).

There is no fatal variance between an indictment charging defendant with assault and battery with intent to kill and murder “Floyd Griffin,” and proof that victim’s name was “Floyd Griffie” since defendant could not have been misled thereby. Hughes v. State, 207 Miss. 594, 42 So. 2d 805, 1949 Miss. LEXIS 372 (Miss. 1949).

There is no fatal variance between an indictment charging defendant with shooting “John Horne,” and proof that the name of the prosecuting witness was “John Horne, Jr.” where throughout the trial such witness was referred to either by the name of John or John Horne, together with the mute evidence that such witness had suffered the loss of some fingers, which the evidence showed resulted from the shooting, all of which evidence sufficiently identified the witness as being the person named in the indictment as having been shot. Foreman v. State, 186 Miss. 529, 191 So. 657, 1939 Miss. LEXIS 267 (Miss. 1939).

22. Instructions; generally.

In an aggravated assault case, in which defendant alleged that he inadvertently stabbed the victim, trial counsel was not ineffective for not offering what defendant called an “accident instruction” based on the excusable homicide statute because the instruction might have confused the jury; and defendant failed to rebut the presumption that counsel’s failure to offer the proffered instruction was trial strategy. Greenleaf v. State, 267 So.3d 749, 2019 Miss. LEXIS 125 (Miss. 2019).

Circuit court did not fail to properly instruct the jury regarding the elements of the crime of aggravated assault because jury instruction S-1 was the only instruction that advised the jury of the essential elements of the crime, and it tracked the language of the indictment and the aggravated assault statute and accurately followed the requisite elements of the crime; the deadly weapon language at issue in jury instruction S-3 was not included in the elements instruction; and the unnecessary language in jury instruction S-3 did not prejudice defendant as the instruction did not direct the jury to a conclusion regarding any element of the crime and did not deprive him of his defense of accident. Dennis v. State, 271 So.3d 661, 2018 Miss. App. LEXIS 589 (Miss. Ct. App. 2018).

Trial court did not err in instructing the jury at defendant’s trial for aggravated assault that a person did not have to possess ill-will toward or even know the identity of a specific individual to commit an aggravated assault on that person. Miskell v. State, 230 So.3d 345, 2017 Miss. App. LEXIS 633 (Miss. Ct. App. 2017).

Defendant was entitled to a new trial as to the aggravated-assault charges against defendant because, due to variances between the indictment and the jury instructions, the jury instructions did not fairly instruct the jury on the applicable law. The jury was not asked to decide whether the injuries inflicted upon the shooting victims were “serious” bodily injuries, which substantially altered the elements of proof for a conviction, and a deadly weapon was not an element of the crime as suggested by the jury instructions. Brown v. State, 225 So.3d 1263, 2016 Miss. App. LEXIS 422 (Miss. Ct. App. 2016), rev'd, 222 So.3d 302, 2017 Miss. LEXIS 169 (Miss. 2017).

Defendant was not erroneously convicted of aggravated assault because the evidence supported the giving by the trial judge of an accomplice-liability jury instruction, given the conflicting testimony as to whether defendant or another person with defendant shot the victim, and the instruction did not constructively amend the indictment. Moreover, the trial judge did abuse the judge’s discretion in additionally giving a cautionary instruction as to accomplice testimony. Jones v. State, 238 So.3d 1235, 2016 Miss. App. LEXIS 408 (Miss. Ct. App. 2016), cert. denied, 237 So.3d 1269, 2018 Miss. LEXIS 148 (Miss. 2018).

Defendant suffered no prejudice from the State’s inclusion of the term “recklessly” in the jury instruction on aggravated assault, because the original indictment clearly provided that she was being charged under this section. Towles v. State, 193 So.3d 688, 2016 Miss. App. LEXIS 382 (Miss. Ct. App. 2016).

Mississippi Supreme Court had held that an acquit first instruction, like the one in this case, was not prohibited by Mississippi law, and thus there was no error in connection with defendant’s trial for attempted kidnapping and aggravated assault. Burgess v. State, 210 So.3d 569, 2016 Miss. App. LEXIS 314 (Miss. Ct. App. 2016), cert. denied, 209 So.3d 431, 2017 Miss. LEXIS 59 (Miss. 2017).

It was reversible error to deny defendant’s request for a lesser-included offense instruction on simple assault, when he was charged with aggravated assault, because (1) the State solely asserted defendant committed the crime by using a bottle, and (2) a reasonable juror could conclude the bottle was not used or the bottle was not a dangerous weapon. Franklin v. State, 136 So.3d 1021, 2014 Miss. LEXIS 123 (Miss. 2014).

Trial court did not err by refusing a proposed theory-of-the-case instruction because the instruction was redundant. James v. State, 146 So.3d 985, 2014 Miss. App. LEXIS 66 (Miss. Ct. App.), cert. denied, 146 So.3d 981, 2014 Miss. LEXIS 463 (Miss. 2014).

Because the record provided evidence corroborating an accomplice’s testimony, the trial court was not required to instruct the jury to regard the accomplice’s testimony with great caution and suspicion. James v. State, 146 So.3d 985, 2014 Miss. App. LEXIS 66 (Miss. Ct. App.), cert. denied, 146 So.3d 981, 2014 Miss. LEXIS 463 (Miss. 2014).

Trial court properly refused a requested instruction because, reading all the given instructions together, the jury was fairly, fully, and accurately instructed regarding its duty to consider and weigh the credibility of witness testimony. James v. State, 146 So.3d 985, 2014 Miss. App. LEXIS 66 (Miss. Ct. App.), cert. denied, 146 So.3d 981, 2014 Miss. LEXIS 463 (Miss. 2014).

Trial court’s aiding-and-abetting instruction, read together with its aggravated-assault instruction, adequately informed the jury that if one defendant was found guilty individually, his codefendant could not be found guilty individually without deliberately associating himself in some way with the crime and participating in it. Jones v. State, 95 So.3d 641, 2012 Miss. LEXIS 410 (Miss. 2012).

Defendant’s convictions for the simple assault of a peace officer in violation of Miss. Code Ann. §97-3-7(1) were appropriate because even though a jury instruction erroneously allowed the jury to find “physical menace” from words alone, it was a harmless error since it was uncontradicted that defendant attacked the officers with kicks and punches. Graham v. State, 967 So. 2d 670, 2007 Miss. App. LEXIS 721 (Miss. Ct. App. 2007).

Simple assault on a law enforcement officer charge resulted from injuries the deputy sustained when attempting to arrest defendant, and the evidence was uncontradicted that defendant engaged in a violent physical struggle with the deputy which resulted in both men sustaining multiple injuries; the trial judge determined that there was a lack of evidence to support a jury instruction on an illegal arrest, and thus the trial judge did not abuse his discretion in denying defendant’s jury instructions that he had the right to resist an unlawful arrest. Keys v. State, 963 So. 2d 1193, 2007 Miss. App. LEXIS 299 (Miss. Ct. App.), cert. denied, 973 So. 2d 245, 2007 Miss. LEXIS 703 (Miss. 2007).

In an aggravated assault case, proposed jury instructions on the “single juror,” the presumption of innocence and the state’s burden of proof, and the elements of the offense were properly rejected because they were covered by instructions that had already been given; moreover, an accident instruction was rejected as not supported by the evidence since that doctrine did not apply to intentional acts. Ellis v. State, 956 So. 2d 1008, 2007 Miss. App. LEXIS 119 (Miss. Ct. App.), cert. dismissed, 973 So. 2d 244, 2007 Miss. LEXIS 687 (Miss. 2007).

Defendant’s conviction for aggravated assault was appropriate under Miss. Code Ann. §97-3-7 where his indictment sufficiently tracked §97-3-7(2)(b). Further, a jury instruction was appropriate because it set forth the elements of the crime the jury was required to find in order to find him guilty of the assault. Jenkins v. State, 913 So. 2d 1044, 2005 Miss. App. LEXIS 330 (Miss. Ct. App. 2005).

Where defendant was tried and convicted for aggravated assault, there was no evidentiary basis warranting an instruction regarding his use of the weapon in a negligent manner, so as to have allowed for an instruction on simple assault. Moreover, the instruction was not a proper statement of the law, for it gave the impression that one could shoot another with a gun and only be guilty of simple assault; finally, the evidence presented by the State revealed that defendant had intentionally fired shots at the victim, and defendant never refuted the State’s proof that the shooting was done in an intentional manner. Acreman v. State, 907 So. 2d 1005, 2005 Miss. App. LEXIS 276 (Miss. Ct. App. 2005).

In defendant’s attempted aggravated assault case, a court properly rejected his proposed instructions where, characterizing his offense as domestic violence would neither have reduced his crime to a misdemeanor, nor reduced his sentence. The proposed jury instructions misstated the law and were therefore properly rejected. Wilson v. State, 904 So. 2d 987, 2004 Miss. LEXIS 1410 (Miss. 2004).

In a case where the indictment charged defendant with aggravated assault, a jury instruction mentioning attempt did not create plain error because attempted assault fell within the meaning of assault, and the indictment mentioned the statute number of the crime for which defendant was to be prosecuted and tracked the language of the statute. Lewis v. State, 897 So. 2d 994, 2004 Miss. App. LEXIS 929 (Miss. Ct. App. 2004), cert. denied, 896 So. 2d 373, 2005 Miss. LEXIS 225 (Miss. 2005).

Although the trial court failed to instruct the jury of the elements of aggravated assault, it appeared beyond a reasonable doubt that the absence of the element instruction did not cause or contribute to the jury reaching the verdict that it reached. The evidence was overwhelming that defendant used his car in a manner that clearly indicated that he was attempting to cause serious bodily injury with a deadly weapon (the car), or under circumstances manifesting extreme indifference to the value of human life; consequently, the error was harmless. Conerly v. State, 879 So. 2d 1101, 2004 Miss. App. LEXIS 762 (Miss. Ct. App. 2004).

Defendant’s aggravated assault conviction was upheld because the trial court had not erred in refusing to instruct the jury on self-defense, since there was no evidence that defendant was acting in self-defense when he shot two victims. Additionally, the jury was provided more than adequate instruction on the essential elements of aggravated assault. McKinley v. State, 873 So. 2d 1052, 2004 Miss. App. LEXIS 450 (Miss. Ct. App. 2004).

Court rejected defendant’s argument that the trial court committed reversible error when it granted a particular instruction because the alleged error was not properly preserved for appellate review and was procedurally barred; even with the procedural bar in place, the court found no plain error because even though the instruction itself was an unhelpful, abstract statement of law, given that aggravated assault was not a specific intent crime, the submission of the instruction did not constitute reversible error. Hogan v. State, 854 So. 2d 497, 2003 Miss. App. LEXIS 852 (Miss. Ct. App. 2003).

Trial court properly denied defendant’s motion for a directed verdict, as the evidence, viewed in the light most favorable to the verdict, was sufficient to show defendant fired multiple shots at the victim, that defendant’s shots struck the victim’s legs, and that the victim had to be treated for the gunshot wounds at a hospital. Satcher v. State, 852 So. 2d 595, 2002 Miss. App. LEXIS 877 (Miss. Ct. App. 2002).

Where defendant was indicted only for four counts of simple assault, the trial court did not err in giving jury lesser offense instruction requested by defendant, allowing the jury to convict him of disorderly conduct as to one count; defendant argued that the most he could be convicted of was disorderly conduct, and that he was entitled to have the jury instructed as to his theory of defense. Williams v. State, 797 So. 2d 372, 2001 Miss. App. LEXIS 243 (Miss. Ct. App. 2001).

The defendant was entitled to a new trial on the ground that the jury was not instructed as to the essential elements of aggravated assault where the court instructed the jury that if they believed from the evidence in the case beyond a reasonable doubt that the defendant committed an aggravated assault in and upon the body of the victim with a shotgun, without provocation, or without threat of great bodily harm to himself, then it would be their sworn duty to find the defendant guilty as charged; the instruction failed to set out the essential elements of the crime of aggravated assault as it did not instruct the jury that it must find that the defendant attempted to cause or purposely or knowingly caused bodily injury to the victim. Reddix v. State, 731 So. 2d 591, 1999 Miss. LEXIS 21 (Miss. 1999).

In a prosecution for aggravated assault, the trial court erred in giving a “flight instruction” where there was an explanation for the defendant’s flight implicit in the defense of the case-the defendant’s claim of self-defense-and there was ample reason for the defendant to have left the scene of the hostilities based on threats from a third person and the alleged danger from the victim. Banks v. State, 631 So. 2d 748, 1994 Miss. LEXIS 9 (Miss. 1994).

Where an assault defendant is arguing self-defense, a flight instruction should be automatically ruled out and found to be of no probative value; a flight instruction would have particular prejudicial effect in a case where self-defense is claimed because to suggest and highlight, through the sanction of a court-granted instruction, that the defendant’s flight was possibly an indication of guilt suggests that the court does not accept the self-defense argument. Banks v. State, 631 So. 2d 748, 1994 Miss. LEXIS 9 (Miss. 1994).

In a prosecution for aggravated assault, the injuries inflicted upon the victim clearly constituted “serious bodily injury” within the meaning of subsection (2) of this section where a blow to the head knocked the victim unconscious and opened a flesh wound requiring sutures, the victim’s jaw was broken in 2 places, an injury to the victim’s arm required surgery under general anesthesia, a bone graft, and the insertion of a metal plate, and the victim was unable to use his arm or return to work for at least 4 weeks; thus, the trial court did not err in refusing the defendant’s requested instruction defining serious bodily injury as “injuries involving great risk of death.” Fleming v. State, 604 So. 2d 280, 1992 Miss. LEXIS 382 (Miss. 1992).

A defendant who was convicted of aggravated assault and sentenced to 15 years imprisonment was not entitled to a jury instruction on attempted murder which carries a maximum sentence of 10 years imprisonment, even though the evidence would have supported a conviction for either offense, since there was no view of the evidence under which the defendant might have been found guilty of attempted murder and not guilty of aggravated assault. McGowan v. State, 541 So. 2d 1027, 1989 Miss. LEXIS 180 (Miss. 1989).

Trial court committed reversible error when it instructed jury to completely disregard testimony of witness who testified that individual, not defendant, had told her that he had used boxcutter to cut “a boy”, because issue concerning that individual was not whether he had character trait for being truthful, but whether he was telling truth about circumstances surrounding fight, cutting of victim, and his participation in those events; witness whose testimony was excluded contradicted testimony of individual that he did not cut anybody, and possibility that individual cut victim was relevant factor to be considered by jury in its deliberations as to whether or not defendant was guilty of cutting victim, since issue at trial was identity of person who cut victim. Clark v. State, 514 So. 2d 1221, 1987 Miss. LEXIS 2866 (Miss. 1987).

In a prosecution for aggravated assault under §97-3-7(2), the trial court properly instructed the jury if they believed beyond a reasonable doubt defendant drove his automobile in the manner enumerated in the instruction and that if they believed beyond a reasonable doubt such manner of driving manifested extreme indifference to the value of human life, then they should find defendant guilty. Gray v. State, 427 So. 2d 1363, 1983 Miss. LEXIS 2351 (Miss. 1983).

An instruction which required in order for the jury to find defendant guilty of assault, the jury must find from the evidence the defendant unlawfully, wilfully or feloneously caused bodily injury to the alleged victim recklessly under circumstances manifesting extreme indifference to the value of human life by driving into the alleged victim and striking him with an automobile, was an adequate instruction on assault. Buchanan v. State, 427 So. 2d 697, 1983 Miss. LEXIS 2464 (Miss. 1983).

In an action for aggravated assault with an automobile that arose when the victim, who had attempted to intervene in an altercation between defendant and a third party over an automobile collision, was struck by either an open door or the rear of defendant’s car, the evidence was insufficient to support an instruction that required a guilty verdict if defendant knowingly or recklessly caused serious bodily injury by running into the complainant with his automobile under circumstances manifesting extreme indifference to the value of human life; giving such an instruction was reversible error, even though defendant did not move for a directed verdict of not guilty or ask for a peremptory instruction of not guilty. McGee v. State, 365 So. 2d 302, 1978 Miss. LEXIS 2417 (Miss. 1978).

State’s instruction, in a prosecution for assault and battery with intent to kill, to the effect that voluntary drunkenness was no excuse or justification for the commission of the crime in that one could not take advantage of a situation in which he had placed himself voluntarily by being drunk or drinking, and that if the jury believed beyond a reasonable doubt that defendant, with felonious intent and malice aforethought to kill, shot and wounded the victim, it should find defendant guilty even though they might believe that defendant had been drunk or drinking at the time, was not misleading as assuming that a crime had been committed, nor was it misleading in any other particular. Cobb v. State, 235 Miss. 57, 108 So. 2d 719, 1959 Miss. LEXIS 402 (Miss. 1959).

Instruction defining crime with which defendant is charged is sufficient if it sets forth all of the elements of crime, and state need not request instruction defining essential elements of crime of murder, though defendant may request such instruction if he desires. Bone v. State, 207 Miss. 20, 41 So. 2d 347, 1949 Miss. LEXIS 314 (Miss. 1949).

In prosecution for assault and battery with intent to kill and murder, even assuming that court erred in authorizing jury, if certain facts were found, to find defendant guilty of injuring another by committing an assault and battery on him with a shotgun, such error was not prejudicial where the jury did not act on such instruction but found the defendant guilty as charged as authorized by another instruction. Hudson v. State, 199 Miss. 406, 24 So. 2d 779, 1946 Miss. LEXIS 210 (Miss. 1946).

Alleged error in prosecution for assault with intent to murder of failure of instructions for state to define the term “murder” used therein, was not available to defendant where his instructions followed the language used by the state, some of which defined murder in the language of the statute. Bridges v. State, 197 Miss. 527, 19 So. 2d 738, 1944 Miss. LEXIS 317 (Miss. 1944).

Striking out the words “in attempt” from defendant’s requested instruction defining murder, in prosecution for assault with intent to murder, to the effect that “the defendant acted feloniously without authority of law from his deliberate design and with his malice aforethought in attempt to kill and murder,” was not error. Bridges v. State, 197 Miss. 527, 19 So. 2d 738, 1944 Miss. LEXIS 317 (Miss. 1944).

Instruction that if the jury believed from the evidence beyond a reasonable doubt that the defendant feloniously, wilfully, and of malice aforethought, hit and wounded the prosecuting witness with a pair of wire pliers, which they believed was a deadly weapon, at a time when defendant was in no danger of losing his own life or suffering great bodily harm at the hands of the prosecuting witness, they should find defendant guilty of assault and battery with intent to kill and murder, was defective as authorizing conviction upon proof of a simple assault. Daniels v. State, 196 Miss. 328, 17 So. 2d 793, 1944 Miss. LEXIS 196 (Miss. 1944).

Where evidence did not justify conviction under this section [Code 1942, § 2011], defective instruction authorizing conviction hereunder upon proof of a simple assault would not cause reversal of conviction for assault with intent to kill and murder, but conviction would be affirmed as a conviction for simple assault and battery and remanded for appropriate sentence. Daniels v. State, 196 Miss. 328, 17 So. 2d 793, 1944 Miss. LEXIS 196 (Miss. 1944).

Instruction authorizing conviction under the statute upon a finding that the defendant assaulted a police officer “with means or force likely to produce death,” rather than a simple assault, where evidence showed that defendant committed battery on the officer with his hands and feet, was not erroneous, under the circumstances. Blaine v. State, 196 Miss. 603, 17 So. 2d 549, 1944 Miss. LEXIS 240 (Miss. 1944).

In prosecution for shooting another with intent to murder him, court properly included in instruction definition of murder. Martin v. State, 163 Miss. 454, 142 So. 15, 1932 Miss. LEXIS 62 (Miss. 1932).

In prosecution for assault with intent to murder, instruction setting forth elements of crime as stated in statute held sufficient without using word “felonious.” Martin v. State, 163 Miss. 454, 142 So. 15, 1932 Miss. LEXIS 62 (Miss. 1932).

23. —Intent.

Aggravated assault instruction, which used the term “willfully,” was not improper as the Supreme Court of Mississippi has made clear that the terms “wilfully” and “purposely or knowingly” have substantially the same meanings. Davis v. State, 909 So. 2d 749, 2005 Miss. App. LEXIS 575 (Miss. Ct. App. 2005).

In an aggravated assault prosecution defended on M’Naghten insanity grounds, even though defendant requested no intoxication instruction, the giving of state’s instruction that voluntary intoxication was no defense was not error where, in view of defendant’s testimony, the jury could have inferred that, at the time of the offense, the defendant was too drunk to have the requisite intent to commit the crime. Norris v. State, 490 So. 2d 839, 1986 Miss. LEXIS 2477 (Miss. 1986).

In a prosecution for assault with intent to kill and murder, an instruction to the effect that the jury should convict the defendants if it should find that the defendants committed assault and battery upon the victim “by use of means or force likely to produce death, with the intent to maim or kill and murder” him, was prejudicial error, where the evidence as to intent was inconclusive, as was evidence of facial injuries sustained by the victim of the assault. Johnson v. State, 230 So. 2d 810, 1970 Miss. LEXIS 1572 (Miss. 1970).

An instruction that malice aforethought may be presumed from the unlawful and deliberate use of a deadly weapon should not have been granted. Barnette v. State, 252 Miss. 652, 173 So. 2d 904, 1965 Miss. LEXIS 1136 (Miss. 1965).

In absence of evidence to support it, it was not error for the lower court to refuse to charge the jury that the accused was entitled to an acquittal if he struck his victim in the heat of passion, and without deliberation. Frierson v. State, 250 Miss. 339, 165 So. 2d 342, 1964 Miss. LEXIS 467 (Miss. 1964).

Any error in an instruction which failed to include intent as an essential element of the offense to be proved was cured by an instruction, given at accused’s request, which charged the jury that intent to kill and slay is the essential ingredient of the offense charged in the indictment. Frierson v. State, 250 Miss. 339, 165 So. 2d 342, 1964 Miss. LEXIS 467 (Miss. 1964).

In a prosecution involving use of a deadly weapon, it was reversible error for the court to instruct for the state that it is reasonable to infer that a person ordinarily intends the natural and probable consequences of his acts knowingly done, and further that the jury might draw the inference that the defendant intended all the consequences which one standing in like circumstances and possessing like knowledge should reasonably have expected to result from his act knowingly done. Hydrick v. State, 246 Miss. 448, 150 So. 2d 423, 1963 Miss. LEXIS 463 (Miss. 1963).

An instruction that there is no particular time during which it is necessary that an intent to kill should have existed is inaccurate, since the intent must exist at the time injury was inflicted. Lindley v. State, 234 Miss. 423, 106 So. 2d 684, 1958 Miss. LEXIS 512 (Miss. 1958).

Even if an instruction to the effect that if the jury should find that the accused was intoxicated at the time of the difficulty it must be satisfied beyond a reasonable doubt that such intoxication did not incapacitate him from forming a deliberate design to kill the victim should be given where the evidence justifies it, it was properly refused where the accused’s testimony established that he was not drunk at the time of committing an assault and battery with intent to kill. Wixon v. State, 229 Miss. 430, 90 So. 2d 859, 1956 Miss. LEXIS 622 (Miss. 1956).

The court did not commit error in granting to the state an instruction on the question of malice aforethought. Wixon v. State, 229 Miss. 430, 90 So. 2d 859, 1956 Miss. LEXIS 622 (Miss. 1956).

Trial court’s refusal to instruct jury to find the defendant guilty of simple assault and battery was proper where proof showed that defendant was either guilty of assault and battery with intent to kill and murder or nothing. Duckworth v. State, 209 Miss. 318, 46 So. 2d 787, 1950 Miss. LEXIS 390 (Miss. 1950).

Instruction, that malice aforethought “may be presumed from unlawful and deliberate use of a deadly weapon,” was proper where jury was also charged that burden was upon state to prove malice aforethought beyond every reasonable doubt, and that defendant intended to kill his victim. Hughes v. State, 207 Miss. 594, 42 So. 2d 805, 1949 Miss. LEXIS 372 (Miss. 1949).

Instruction, that malice aforethought “may be presumed from the unlawful and deliberate use of a deadly weapon,” was proper in absence of evidence showing justification or necessity for assault. Hughes v. State, 207 Miss. 594, 42 So. 2d 805, 1949 Miss. LEXIS 372 (Miss. 1949).

In prosecution for assault and battery with intent to kill and murder, instruction directing jury to take into consideration fact that defendant had another load in his gun and could have used it and killed his alleged victim, if he had so desired, but did not do so because he did not want to kill him, was properly refused as it amounts to a comment on weight of evidence as to whether or not defendant shot with intent to kill and murder. Ceary v. State, 204 Miss. 299, 37 So. 2d 316, 1948 Miss. LEXIS 366 (Miss. 1948).

Instruction in prosecution for assault with intent to murder, that malice is implied by law from the nature and character of the weapon used, and that the use of a deadly weapon in a difficulty and not necessarily in self-defense is evidence of malice, constituted error, for the reasons that the instruction failed to characterize the use of the weapon as “deliberate,” the court found peremptorily that the weapon was deadly, and there was no need or right to charge the jury upon a presumption. However, such error was not prejudicial to defendant whose guilt was overwhelming. Bridges v. State, 197 Miss. 527, 19 So. 2d 738, 1944 Miss. LEXIS 317 (Miss. 1944).

Omission from instruction of words, “with intent to kill and murder,” did not prejudice defendant convicted of assault and battery with intent to kill and murder, where, because evidence negatived such intent, the supreme court affirmed conviction for constituent offense of assault and battery. Griffin v. State, 196 Miss. 528, 18 So. 2d 437, 1944 Miss. LEXIS 226 (Miss. 1944).

Instruction that “deliberate intent” and “deliberate design” and “malice aforethought” meant the same thing, held not erroneous. Word v. State, 180 Miss. 883, 178 So. 821, 1938 Miss. LEXIS 46 (Miss. 1938).

Instruction on assault with intent to kill eliminating felonious intent held erroneous. Herring v. State, 134 Miss. 505, 99 So. 270, 1924 Miss. LEXIS 298 (Miss. 1924).

Instruction omitting intent to kill on trial for assault with such intent is erroneous. Lott v. State, 130 Miss. 119, 93 So. 481, 1922 Miss. LEXIS 184 (Miss. 1922).

Erroneous instruction on assault with intent to kill held not cured by others stating the law correctly. Lott v. State, 130 Miss. 119, 93 So. 481, 1922 Miss. LEXIS 184 (Miss. 1922).

Instruction is erroneous which fails to state that, when defendant called upon his wife to shoot, he must have had the intent to kill with malice aforethought. Smith v. State, 91 So. 41 (Miss. 1922).

Where evidence showed that accused shot in to a wagon occupied by a designated person and several others it was error to instruct the jury that proof of a design to kill the designated person was unnecessary to a conviction under indictment for assault with intent to kill said person. Gentry v. State, 92 Miss. 141, 45 So. 721, 1907 Miss. LEXIS 26 (Miss. 1907).

24. —Deadly weapon.

In defendant’s trial for kidnapping and the aggravated assault of his ex-girlfriend, the trial court’s instruction to the jury that stun gun was a deadly weapon was peremptory and in error, necessitating reversal. Russell v. State, 832 So. 2d 551, 2002 Miss. App. LEXIS 251 (Miss. Ct. App.), cert. denied, 832 So. 2d 533, 2002 Miss. App. LEXIS 782 (Miss. Ct. App. 2002).

Where defendant used knife’s metal butt to strike victim on the back of the head six or seven times with all the force he had, the knife could be called a deadly weapon for the purposes of aggravated assault under Miss. Code Ann. §97-3-7. Walls v. State, 827 So. 2d 718, 2002 Miss. App. LEXIS 525 (Miss. Ct. App. 2002).

The trial court committed reversible error where the defendant was indicted for aggravated assault by causing or attempting to cause serious bodily injury in violation of subsection (2)(a), but the court instructed the jury with regard to aggravated assault with a deadly weapon in violation of subsection (2)(b). Rushing v. State, 753 So. 2d 1136, 1999 Miss. App. LEXIS 717 (Miss. Ct. App. 1999).

In a prosecution for aggravated assault under subsection (2) of this section, the defendant may not have the jury instructed on the lesser offense of simple assault under subsection (1) of this section where the defendant wielded what was indisputably a deadly weapon and intentionally struck the victim, even if the injury inflicted was relatively slight. Hutchinson v. State, 594 So. 2d 17, 1992 Miss. LEXIS 45 (Miss. 1992).

In a prosecution for aggravated assault under subsection (2)(a) of this section, the defendant’s use of a shot gun, which is a deadly weapon, during the alleged assault precluded his entitlement to an instruction authorizing a conviction of simple assault under subsection (1) of this section. Hunt v. State, 569 So. 2d 1200, 1990 Miss. LEXIS 671 (Miss. 1990).

By failing to attack the constitutionality of subsection (2) of this section, by proper motion in the trial court, defendant waived any error in this regard, and was precluded from raising the issue on appeal; moreover, where he failed to object to a jury instruction that the pocket knife used in the alleged crime was a deadly weapon, the issue was not preserved for appeal. Colburn v. State, 431 So. 2d 1111, 1983 Miss. LEXIS 2609 (Miss. 1983).

Whether the use of feet and fists constituted the use of a deadly weapon is a question for the jury to determine from the evidence, and the trial court committed reversible error when it instructed the jury that feet and fists were a deadly weapon. Pulliam v. State, 298 So. 2d 711, 1974 Miss. LEXIS 1571 (Miss. 1974).

Granting of an instruction, in a prosecution for assault and battery with intent to kill, that malice aforethought might be assumed from the unlawful and deliberate use of a deadly weapon, constituted reversible error since the instruction was on abstract principle of law, no mention was made of the specific facts of the case, and the two different versions of what had occurred and all of the facts surrounding the shooting were in evidence. Allison v. State, 274 So. 2d 678, 1973 Miss. LEXIS 1609 (Miss. 1973).

An instruction which plainly predicated guilt upon the assault being made with “a deadly weapon, to wit, a pistol or metal instrument,” was not subject to the claimed infirmity that it did not require the jury to determine that a deadly weapon had been used but instead created an assumption that the metal instrument used was a deadly weapon. Frierson v. State, 250 Miss. 339, 165 So. 2d 342, 1964 Miss. LEXIS 467 (Miss. 1964).

An instruction under which the nature of the weapon, and the felonious assault were facts to be determined by the jury from the evidence in the case beyond a reasonable doubt, did not assume that a handsaw was a deadly weapon. Cobb v. State, 233 Miss. 54, 101 So. 2d 110, 1958 Miss. LEXIS 356 (Miss. 1958).

Instruction requiring only that the jury find that an assault was made “with some instrument capable of producing death or great bodily harm” was held error, since this section requires that the assault be made “with any deadly weapons or other means or force likely to produce death.” Williams v. State, 205 Miss. 515, 39 So. 2d 3, 1949 Miss. LEXIS 448 (Miss. 1949).

25. —Self-defense.

In a case in which defendant appealed his conviction for violating Miss. Code Ann. §97-3-7(2)(a), he unsuccessfully argued that his jury instruction on self-defense should have been included. Part of the instruction given to the jury already properly instructed it on defendant’s theory of self-defense. David v. State, 29 So.3d 129, 2010 Miss. App. LEXIS 112 (Miss. Ct. App. 2010).

In a case in which defendant appealed his conviction for violating Miss. Code Ann. §97-3-7(2)(a), he unsuccessfully argued that a jury instruction on self-defense should have been included. Since defendant did not cite to any authority for his assertion that the jury instruction on self-defense should have been included based on the disparity in size between the victim and defendant the testimony at trial, the assignment of error was procedurally barred. David v. State, 29 So.3d 129, 2010 Miss. App. LEXIS 112 (Miss. Ct. App. 2010).

In an aggravated assault case, three separate instructions given to the jury were not error because they adequately informed the jury on the law of self-defense and that defendant was entitled to this defense if the evidence supported such. Ellis v. State, 956 So. 2d 1008, 2007 Miss. App. LEXIS 119 (Miss. Ct. App.), cert. dismissed, 973 So. 2d 244, 2007 Miss. LEXIS 687 (Miss. 2007).

Self-defense instruction was not improper because it unambiguously required the jury to find defendant not guilty if they concluded that she acted in self-defense. Davis v. State, 909 So. 2d 749, 2005 Miss. App. LEXIS 575 (Miss. Ct. App. 2005).

Trial court did not err in refusing jury instruction D-9, a self-defense instruction, because it was repetitious of instruction S-3 that was given by the trial court. Clark v. State, 2005 Miss. App. LEXIS 371 (Miss. Ct. App. June 7, 2005), sub. op., op. withdrawn, 928 So. 2d 192, 2006 Miss. App. LEXIS 135 (Miss. Ct. App. 2006).

Question was not whether the individual who was attacked was a victim, but whether he became a victim as a result of his own aggression or as a result of defendant’s unjustified aggression against him. On that issue, the jury was properly instructed and defendant’s request that the word “victim” be replaced with the individual’s actual name in the self-defense instructions was properly rejected, as the jury was well aware that defendant had stabbed the “victim” and the use of that word did not prejudice defendant. Roberts v. State, 911 So. 2d 573, 2005 Miss. App. LEXIS 328 (Miss. Ct. App. 2005).

Trial court did not err in refusing defendant’s proposed instruction in defendant’s trial for simple assault on a law enforcement officer because the instruction was nothing more than an alternate method of stating the self-defense theory set out in another instruction already given. Sheffield v. State, 844 So. 2d 519, 2003 Miss. App. LEXIS 374 (Miss. Ct. App. 2003).

Jury instruction was proper where it paralleled statutory language of this section; therefore, jury could have believed all of defendants’ story, but not found self-defense proper in this case where 3 people beat admittedly unarmed man. Johnson v. State, 512 So. 2d 1246, 1987 Miss. LEXIS 2703 (Miss.), cert. denied, 484 U.S. 968, 108 S. Ct. 462, 98 L. Ed. 2d 402, 1987 U.S. LEXIS 4990 (U.S. 1987), overruled in part, Smith v. State, 986 So. 2d 290, 2008 Miss. LEXIS 339 (Miss. 2008).

In an aggravated assault prosecution defended on M’Naghten insanity grounds, the giving of an instruction that voluntary intoxication was no defense could not have caused the jury to disregard defendant’s insanity defense, where all of the instructions, when read together, clearly instructed the jury as to the state’s burden in proving all elements of the crime and in proving defendant’s sanity. Norris v. State, 490 So. 2d 839, 1986 Miss. LEXIS 2477 (Miss. 1986).

Reckless or negligent beliefs of defendant to charge of aggravated assault that defendant was acting in self defense in attacking and cutting victim at time when victim had back turned is not basis upon which defendant may be granted instruction on lesser included offense of simple assault. Nobles v. State, 464 So. 2d 1151, 1985 Miss. LEXIS 1919 (Miss. 1985).

The trial court properly refused defendant’s instructions which contained inaccurate statements relative to the law of self-defense, and omitted the requirements that the defendant must have been in immediate danger, real or apparent, and that the intent to kill the defendant must have been manifested by some overt act on the part of the victim. Yarber v. State, 230 Miss. 746, 93 So. 2d 851, 1957 Miss. LEXIS 418 (Miss. 1957).

In a prosecution for murder, an instruction to the jury that even if the deceased attempted to have unnatural intercourse with the defendant, but the danger of accomplishment of the crime by the deceased was over and at a time when such danger was not imminent or impending the defendant tied and gagged the deceased, and if the jury finds robbery, then the crime was murder, was proper in presenting defendant’s theory of self-defense and the state’s theory of felony murder. Burns v. State, 228 Miss. 254, 87 So. 2d 681, 1956 Miss. LEXIS 510 (Miss. 1956).

Where accused, in prosecution for assault and battery, insulted other party who struck first blow, instruction of self-defense was error. Wicker v. State, 107 Miss. 690, 65 So. 885, 1914 Miss. LEXIS 133 (Miss. 1914).

An instruction on self-defense should not be modified by words “without fault in himself in bringing on the difficulty.” Garner v. State, 93 Miss. 843, 47 So. 500, 1908 Miss. LEXIS 148 (Miss. 1908).

26. — Lesser offense.

Defendant’s lesser-included offense instruction on simple domestic violence was properly rejected because there was evidence that the victim was strangled; and strangulation automatically fell under the offense of aggravated domestic violence. Brown v. State, 285 So.3d 671, 2019 Miss. App. LEXIS 263 (Miss. Ct. App.), cert. denied, — So.3d —, 2019 Miss. LEXIS 438 (Miss. 2019).

Circuit court did not err in refusing defendant’s lesser-included offense of simple assault instruction because no reasonable jury could conclude that the victim’s injuries were less than serious; the aftermath of the altercation between defendant and the victim left the victim confined to a wheelchair and unable to walk, eat on his own, or communicate. Torrey v. State, 229 So.3d 156, 2017 Miss. App. LEXIS 107 (Miss. Ct. App. 2017).

Trial court properly denied defendant’s simple assault lesser-included-offense jury instruction because the evidence did not demonstrate negligence as defendant testified and argued at trial that defendant intentionally shot at the victim in self-defense because the victim had a gun and pointed it at defendant. Taylor v. State, 137 So.3d 283, 2014 Miss. LEXIS 225 (Miss. 2014).

In a felonious child abuse case, because the child’s burns were not caused by a child exploring her environment, the doctor who treated her unequivocal opined that the burns were nonaccidental, the burns came from a hot, solid object, and no reasonable juror could find the child’s second-degree burns on nondominant fingers were not considered serious bodily harm, the trial court did not err in refusing to instruct the jury on the lesser-offense of simple assault. Harris v. State, 123 So.3d 925, 2013 Miss. App. LEXIS 607 (Miss. Ct. App. 2013).

Trial court’s refusal to give a jury instruction on simple assault as a lesser included offense of aggravated assault was proper since: (1) defendant did not present sufficient evidence of negligence since if all of the shots that hit the victim were fired as a result of a struggle, then defendant acted in self-defense, which was inconsistent with negligence; (2) defendant’s testimony that he squeezed the trigger once but did not know if he shot the victim was too tenuous for a negligence finding; and (3) squeezing the trigger and hitting the victim caused serious bodily harm, which meant that the case was definitely an aggravated assault case. Gilmore v. State, 119 So.3d 278, 2013 Miss. LEXIS 361 (Miss. 2013).

Because, in attempting to prove assault, the State introduced evidence that defendant began swinging at an officer while he was being arrested, and it would have been impossible for defendant to have committed simple assault on a law-enforcement officer without committing the crime of resisting arrest, the offense of resisting arrest was a lesser-included offense of the charged crime of simple assault, and the trial judge was authorized to grant the State’s request for a resisting-arrest instruction. Edwards v. State, 124 So.3d 105, 2013 Miss. App. LEXIS 700 (Miss. Ct. App. 2013).

When defendant was charged with aggravated assault, pursuant to Miss. Code Ann. §97-3-7(2)(b), a circuit court properly refused defendant’s request for a jury instruction on the lesser-included offense of simple assault, §97-3-7(1)(a), because there was no evidentiary basis justifying an instruction on simple assault given the severity of the victim’s injuries and the extensive treatment required to repair those injuries; the fractures to the victim’s face required the insertion of 5 plates and 22 screws, and the victim’s broken jaw had to be wired shut for 2 weeks. Jones v. State, 64 So.3d 1033, 2011 Miss. App. LEXIS 346 (Miss. Ct. App. 2011).

Had defendant presented testimony or any evidence that the victim’s injuries were not serious, then a simple assault instruction may have been warranted; however, defendant presented no such evidence, and the circuit court did not err in determining that the severity of the victim’s injuries would not have supported a conviction of simple assault. Ames v. State, 17 So.3d 130, 2009 Miss. App. LEXIS 144 (Miss. Ct. App.), cert. denied, 17 So.3d 99, 2009 Miss. LEXIS 433 (Miss. 2009).

Jury instruction as to simple assault was not warranted where no reasonable juror could find defendant guilty of simple assault against the law enforcement officer or that the incident was an accident; nothing in the record suggested that defendant did not knowingly or purposely pull a knife on the deputies. Babb v. State, 17 So.3d 100, 2009 Miss. App. LEXIS 70 (Miss. Ct. App.), cert. denied, 17 So.3d 99, 2009 Miss. LEXIS 440 (Miss. 2009).

In a case in which defendant was convicted of violating Miss. Code Ann. §97-3-7(2)(b), the trial judge did not err by refusing to grant a simple assault jury instruction. Defendant contended that a lesser-included-offense instruction should have been given for the jury to consider simple assault, but the trial judge found that the evidence did not support simple assault. Carter v. State, 995 So. 2d 847, 2008 Miss. App. LEXIS 700 (Miss. Ct. App. 2008).

In an aggravated assault case, the trial court did not err in refusing a jury instruction on the lesser-included offense of simple assault as it was undisputed that defendant intentionally stabbed the victim, and there was no evidence that defendant acted negligently. Ford v. State, 975 So. 2d 859, 2008 Miss. LEXIS 102 (Miss. 2008).

Circuit court erred when it declined to instruct the jury on the lesser-included offense of simple assault where, pursuant to Miss. Code Ann. §97-3-7(1)(a), viewing the testimony in a light most favorable to defendant, it was clear that, given the option, reasonable jurors cold find defendant guilty of simple assault and not guilty of aggravated assault under Miss. Code Ann. §97-3-7(2)(b). Booze v. State, 964 So. 2d 1218, 2007 Miss. App. LEXIS 624 (Miss. Ct. App. 2007).

Because defendant’s actions clearly arose to an aggravated assault, the evidence did not support the giving of a lesser-included offense instruction on simple assault; the evidence showed that defendant caused serious bodily injury under such circumstances manifesting extreme indifference to the value of human life. Downs v. State, 962 So. 2d 1255, 2007 Miss. LEXIS 444 (Miss. 2007).

In a case where defendant was charged with aggravated assault after he stabbed several victims during a drunken fight, he was not entitled to an instruction on simple assault because he yielded a dangerous weapon and intentionally struck at the victims; the case was distinguished from others where mere negligent use of a weapon was shown. Lackie v. State, 971 So. 2d 601, 2007 Miss. App. LEXIS 293 (Miss. Ct. App.), cert. denied, 973 So. 2d 244, 2007 Miss. LEXIS 683 (Miss. 2007).

In an aggravated assault case, a trial court did not err by failing to instruct the jury on several lesser included offenses, which included simple assault, simple domestic violence assault, and aggravated domestic violence, because they were not requested. Ellis v. State, 956 So. 2d 1008, 2007 Miss. App. LEXIS 119 (Miss. Ct. App.), cert. dismissed, 973 So. 2d 244, 2007 Miss. LEXIS 687 (Miss. 2007).

Lesser-included offense instruction was not warranted where the record contained no evidence which supported simple assault as no evidence was presented that showed the victim’s injuries to be less than serious; given the severity and the extensive treatment necessary to repair the injuries, and the fact that the injuries were serious, a lesser-included offense instruction was not required. Brown v. State, 934 So. 2d 1039, 2006 Miss. App. LEXIS 540 (Miss. Ct. App. 2006).

Under simple assault under Miss. Code Ann. §97-3-7(1)(b), defendant had to have acted negligently, but there was no evidence in the record that defendant acted negligently as the victim was stabbed six times, and defendant admitted that he swung at the victim with a knife; defendant claimed that he was acting in self-defense and a self-defense jury instruction was given, but defendant was not entitled to a lesser-included offense jury instruction on simple assault. Grubbs v. State, 956 So. 2d 932, 2006 Miss. App. LEXIS 379 (Miss. Ct. App. 2006), cert. denied, 957 So. 2d 1004, 2007 Miss. LEXIS 313 (Miss. 2007).

In an aggravated assault with a weapon case, Miss. Code Ann. §97-3-7(2)(b), no reasonable juror could have believed that defendant was only guilty of simple assault under §97-3-7(1)(a); thus, because the uncontradicted physical facts so overwhelmingly supported a finding of aggravated assault and rendered so unreasonable the suggestion that defendant might have been guilty only of simple assault, the trial court did not err in not instructing the jury on the lesser-included offense of simple assault. Grubbs v. State, 956 So. 2d 932, 2006 Miss. App. LEXIS 379 (Miss. Ct. App. 2006), cert. denied, 957 So. 2d 1004, 2007 Miss. LEXIS 313 (Miss. 2007).

Lesser-included simple assault instruction was proper because the record offered evidence in support of the defendant’s theory that she had not wilfully caused bodily injury to the vicitim with a deadly weapon and the instruction clearly reflected the definition of simple assault as found in Miss. Code Ann. §97-3-7(1). Davis v. State, 909 So. 2d 749, 2005 Miss. App. LEXIS 575 (Miss. Ct. App. 2005).

Evidence showed the assault to be intentional, not careless or negligent and defendant and his cohorts had purposefully inflicted serious injury to the victim by means of a tire tool and then proceeded to rob his business. Thus, the trial court did not err in denying defendant’s request for a simple assault jury instruction. Williams v. State, 909 So. 2d 1233, 2005 Miss. App. LEXIS 89 (Miss. Ct. App. 2005).

Trial court did not err in refusing to instruct the jury on simple assault as the victim testified that defendant fondled her breast while on a three-wheeler, and defendant could not point to evidence in the record from which a jury could reasonably find him not guilty of sexual assault, and find him guilty of simple assault. Ladnier v. State, 878 So. 2d 926, 2004 Miss. LEXIS 623 (Miss. 2004).

In a sexual battery case, a trial court did not err in failing to instruct the jury on simple assault which was not a lesser-included offense; the element of “bodily injury” was missing from the sexual battery statute, Miss. Code Ann. §97-3-95. Seigfried v. State, 869 So. 2d 1040, 2003 Miss. App. LEXIS 958 (Miss. Ct. App. 2003), cert. denied, 870 So. 2d 666, 2004 Miss. LEXIS 352 (Miss. 2004).

Defendant was not entitled to an instruction under Miss. Code Ann. §97-3-7(1)(b), as the evidence indicated that defendant intentionally struck the victim; moreover defendant did not request the instruction at trial and the court was not required to offer it sua sponte. Armstrong v. State, 828 So. 2d 239, 2002 Miss. App. LEXIS 523 (Miss. Ct. App. 2002).

In a prosecution for aggravated assault, the court properly instructed the jury with regard to simple assault as a lesser included offense where the state presented a witness claiming there was serious bodily injury and the defense brought forth a witness that the injuries were not serious. Odom v. State, 767 So. 2d 242, 2000 Miss. App. LEXIS 151 (Miss. Ct. App. 2000).

In a prosecution for aggravated assault, the court properly refused to instruct the jury with regard to simple assault based upon negligent injury where the testimony was that the defendant intentionally shot the victim and the only issue was whether he or the victim shot first. Reddix v. State, 731 So. 2d 591, 1999 Miss. LEXIS 21 (Miss. 1999).

Even though victims’ wounds were not very serious, defendant was not entitled to instruction on simple assault, as lesser included offense of aggravated assault, where defendant used gun during assault. Hoops v. State, 681 So. 2d 521, 1996 Miss. LEXIS 433 (Miss. 1996).

In prosecution for aggravated assault, defendant is entitled to a lesser included offense jury instruction for mayhem as long as there is some proof that shows him to be innocent of aggravated assault, but at same time only guilty of mayhem. Hoops v. State, 681 So. 2d 521, 1996 Miss. LEXIS 433 (Miss. 1996).

Defendant was not entitled to instruction on mayhem, as lesser included offense of aggravated assault, since same proof that established aggravated assault also established mayhem. Hoops v. State, 681 So. 2d 521, 1996 Miss. LEXIS 433 (Miss. 1996).

Aggravated assault defendant was not entitled to lesser included offense instruction on simple assault given that multiple stab wounds suffered by both victims were serious and life-threatening, and in light of absence of evidence that defendant was merely negligent in handling knife; evidence precluded finding that injuries were negligently inflicted. Jackson v. State, 672 So. 2d 468, 1996 Miss. LEXIS 718 (Miss. 1996).

In a prosecution for simple assault upon a law enforcement officer, the trial court erred in failing to give an instruction on the lesser included offense of resisting arrest where a reasonable fact-finder could have concluded, based on the evidence presented, that the defendant resisted arrest, but had a reasonable doubt as to whether he “injured” the officer within the meaning of this section. Murrell v. State, 655 So. 2d 881, 1995 Miss. LEXIS 234 (Miss. 1995).

In a prosecution for felony child abuse arising from an infant’s ingestion of glass slivers in her food, the evidence was insufficient to support an instruction on the lesser included offense of simple assault, since no reasonable juror could find that the glass slivers were not used in “such a manner as to cause serious bodily harm,” and there was no evidence from which a juror could conclude that the infant accidentally ingested the glass. Payton v. State, 642 So. 2d 1328, 1994 Miss. LEXIS 442 (Miss. 1994).

In a prosecution for burglary of an inhabited dwelling, the defendant was not entitled to a lesser included offense instruction on the charge of simple assault where the evidence sufficiently supported a jury determination of the burglary charge, since simple assault is not a constituent offense of burglary of a dwelling. Ross v. State, 603 So. 2d 857, 1992 Miss. LEXIS 381 (Miss. 1992).

In a prosecution for aggravated assault under subsection (2) of this section, the defendant may not have the jury instructed on the lesser offense of simple assault under §97-3-7(1) where the defendant wielded what was indisputably a deadly weapon and intentionally struck the victim, even if the injury inflicted was relatively slight. Hutchinson v. State, 594 So. 2d 17, 1992 Miss. LEXIS 45 (Miss. 1992).

In an assault prosecution, in which the defendant slashed the victim across the neck with a knife or a box cutter, the defendant was entitled to an instruction on self-defense where there was evidence that the victim had struck the defendant with an ice pick. Anderson v. State, 571 So. 2d 961, 1990 Miss. LEXIS 717 (Miss. 1990).

In a prosecution for aggravated assault, the trial court erred in refusing to give a lesser included offense instruction on simple assault where the evidence could have brought the case within the statutory definition of simple assault, even though some of the evidence was contradicted and the jury was not required to believe any of the testimony presented; as long as the evidence “muddies the water enough,” the defendant is entitled to the lesser included offense instruction. Robinson v. State, 571 So. 2d 275, 1990 Miss. LEXIS 720 (Miss. 1990).

In a prosecution for aggravated assault under subsection (2)(a) of this section, the defendant’s use of a shot gun, which is a deadly weapon, during the alleged assault precluded his entitlement to an instruction authorizing a conviction of simple assault under subsection (1) of this section. Hunt v. State, 569 So. 2d 1200, 1990 Miss. LEXIS 671 (Miss. 1990).

In deciding whether lesser included offense instructions are to be given, trial courts must be mindful of the disparity in maximum punishments. However, even where there is a great disparity in maximum punishments between the offenses, the trial judge cannot indiscriminately give a lesser included offense instruction, nor can the trial judge give such an instruction on the basis of pure speculation; there must be some evidence regarding the lesser included offense. Thus, a rape defendant was entitled to instructions on the lesser included offenses of simple and aggravated assault where the defendant’s side of the story warranted the instructions, particularly since the maximum penalty for simple assault carries a 6-month jail term in the county jail and a $500 fine and the maximum penalty for aggravated assault carries a 20-year prison term in the penitentiary, while the defendant would be faced with the possibility of serving a prison term for the remainder of his life if convicted for rape. Boyd v. State, 557 So. 2d 1178, 1989 Miss. LEXIS 461 (Miss. 1989).

Aggravated assault defendant is not entitled to have instruction given on lesser included offense of simple assault where uncontradicted evidence has been introduced showing victim suffered serious bodily injuries and evidence shows beyond reasonable doubt that injuries were inflicted under circumstances manifesting extreme indifference to value of human life. Harbin v. State, 478 So. 2d 796, 1985 Miss. LEXIS 2261 (Miss. 1985).

Prisoner charged with aggravated assault arising from incident in which prisoner holds jail guard hostage while attempting to escape is entitled to instruction on lesser included offense of simple assault by physical menace. Lee v. State, 469 So. 2d 1225, 1985 Miss. LEXIS 1900 (Miss. 1985).

A conviction for aggravated assault on a fireman while acting within the scope of his duty would be reduced to a conviction for simple assault where evidence established that the defendant did not know that the victim of the assault was a fireman. Morgan v. State, 388 So. 2d 495, 1980 Miss. LEXIS 2114 (Miss. 1980).

27. —Defendant as witness.

In a prosecution where the defendant was the only witness in his defense on the facts of the case, any error in the court’s instruction that the jury in determining what weight should be given to the testimony of any witness had the right to consider what interest the witness had in the results of the trial, was cured by an instruction for the defense directing the jury to consider defendant’s testimony as that of any other witness, and not to arbitrarily ignore him, simply because he was a defendant in the case. Reed v. State, 237 Miss. 23, 112 So. 2d 533, 1959 Miss. LEXIS 445 (Miss. 1959).

In a prosecution for assault and battery with intent to kill, where the defendant was the only witness in his behalf on the facts of the case, instruction that if the jury had no other reason to disbelieve the defendant than the fact he was a defendant in the case, it was the jury’s sworn duty to believe him, was more than the defendant was entitled to and has been condemned. Reed v. State, 237 Miss. 23, 112 So. 2d 533, 1959 Miss. LEXIS 445 (Miss. 1959).

Instruction that defendant is a competent witness in her own behalf, that her testimony is entitled to the same consideration as that of any other witness, and that it is jury’s duty to believe every word she said while so testifying if the jury had no other reason to disbelieve her than that she is the defendant in the case, is improper as being confusing and on the weight of the testimony. Coleman v. State, 22 So. 2d 410 (Miss. 1945), overruled, Flowers v. State, 473 So. 2d 164, 1985 Miss. LEXIS 2140 (Miss. 1985).

28. Conviction of lesser crime.

Although the circuit court erred in finding defendant guilty of aggravated assault, because the jury inherently found defendant guilty of simple assault, and defendant conceded that he was guilty of simple assault, the matter was remanded to the circuit court so it could sentence defendant accordingly. Snowden v. State, 131 So.3d 1251, 2014 Miss. App. LEXIS 59 (Miss. Ct. App. 2014).

When a jury found defendant guilty of resisting arrest, but acquitted him of the charge of aggravated assault on a police officer, the verdict was not necessarily inconsistent because, among other things, the record showed that defendant struck an officer in the chest when the officer tried to arrest defendant. Chambers v. State, 2007 Miss. App. LEXIS 108 (Miss. Ct. App. Feb. 27, 2007), op. withdrawn, sub. op., 973 So. 2d 266, 2007 Miss. App. LEXIS 692 (Miss. Ct. App. 2007).

Where appellant was charged with sexual battery, his defense attorney was not ineffective for allowing him to plead guilty of aggravated assault. Aggravated assault is a lesser crime than sexual battery and carries a lower maximum sentence. Pearson v. State, 906 So. 2d 788, 2004 Miss. App. LEXIS 1139 (Miss. Ct. App. 2004).

Assault with intent to rape under former § 2361 is sufficiently a lesser included 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. Grayer v. State, 519 So. 2d 438, 1988 Miss. LEXIS 52 (Miss. 1988).

Since the doctrine of collateral estoppel contemplates a prior adjudication of an issue by the trier of the facts, the doctrine did not require the court to decline a verdict of guilty of aggravated assault, returned along with a verdict of not guilty of attempted kidnapping, both charges arising from the same facts, since the 2 indictments had been consolidated and simultaneously submitted to the jury, and there had been no prior adjudication of any issue. Johnson v. State, 491 So. 2d 834, 1986 Miss. LEXIS 2510 (Miss. 1986).

The trial court did not err in refusing defendant’s suggested instruction on simple assault, where there was no evidence that the wounds inflicted upon the victim were anything but serious, involving great risk of death. Colburn v. State, 431 So. 2d 1111, 1983 Miss. LEXIS 2609 (Miss. 1983).

Where there was ample evidence that the accused deliberately shot his victim for no apparent reason, and on trial the accused vigorously denied that he either pointed or aimed a gun at the victim, accused was correctly charged with, and convicted of, assault and battery with intent to kill, notwithstanding his contention that the conviction should have been for pointing and aiming a gun. Wixon v. State, 229 Miss. 430, 90 So. 2d 859, 1956 Miss. LEXIS 622 (Miss. 1956).

In a prosecution for assault with a deadly weapon with intent to kill and murder, evidence showing that defendant placed the shotgun on his lap pointing at another person was insufficient to sustain conviction for felony but was sufficient to support conviction for simple assault. Washington v. State, 222 Miss. 782, 77 So. 2d 260, 1955 Miss. LEXIS 663 (Miss. 1955).

When state’s evidence is not sufficient to sustain conviction under this section [Code 1942, § 2011], but is sufficient to sustain charge of assault, supreme court is not authorized to discharge defendant, and judgment will be reversed and case remanded. Craddock v. State, 204 Miss. 606, 37 So. 2d 778, 1948 Miss. LEXIS 393 (Miss. 1948).

Where intent to murder was not shown, conviction for assault with intent to murder was remanded for sentence as in simple assault. Edgar v. State, 202 Miss. 505, 32 So. 2d 441, 1947 Miss. LEXIS 307 (Miss. 1947).

Sentence of accused after indictment, trial, and conviction under the statute (Code 1942, § 2361) providing for punishment of one convicted of an assault with intent to forcibly ravish any female of previous chaste character, was not improper because accused could have been prosecuted and sentenced under this section [Code 1942, § 2011]. Lee v. State, 201 Miss. 423, 29 So. 2d 211, 1947 Miss. LEXIS 402 (Miss. 1947), rev'd, 332 U.S. 742, 68 S. Ct. 300, 92 L. Ed. 330, 1948 U.S. LEXIS 2619 (U.S. 1948).

Where evidence did not justify conviction under this section [Code 1942, § 2011], defective instruction authorizing conviction hereunder upon proof of a simple assault would not cause reversal of conviction for assault with intent to kill and murder, but conviction would be affirmed as a conviction for simple assault and battery and remanded for appropriate sentence. Daniels v. State, 196 Miss. 328, 17 So. 2d 793, 1944 Miss. LEXIS 196 (Miss. 1944); Hamilton v. Federal Land Bank, 175 Miss. 462, 167 So. 642, 1936 Miss. LEXIS 68 (Miss. 1936).

Conviction of assault and battery of defendant indicted for assault and battery with intent to kill whom the evidence proves to be guilty as charged, or innocent altogether, will be reversed. Bailey v. State, 93 Miss. 79, 46 So. 137, 1908 Miss. LEXIS 63 (Miss. 1908).

29. Sentence.

Attempted-murder statute does not violate the Eight Amendment; the difference in sentencing between the attempted-murder statute and the attempted aggravated assault statute does not violate the Eighth Amendment. Pickett v. State, 252 So.3d 40, 2018 Miss. App. LEXIS 54 (Miss. Ct. App.), cert. denied, 250 So.3d 1271, 2018 Miss. LEXIS 374 (Miss. 2018), cert. denied, — So.3d —, 2018 Miss. LEXIS 376 (Miss. 2018).

Vacating of defendant’s sentence and remand for resentencing was appropriate because defendant was improperly sentenced under a subsection not properly charged in the indictment. Defendant was not on notice that defendant would be convicted and sentenced for simple assault on emergency medical personnel, an aggravating circumstance, but was on notice that defendant was being tried for simple assault on medical personnel. Hawkins v. State, 255 So.3d 1264, 2018 Miss. LEXIS 431 (Miss. 2018).

Circuit court properly sentenced defendant to twenty years with five years suspended, followed by five years of post-release supervision, because it did not exceed the statutory maximum for aggravated assault, and the sentence was not grossly disproportionate to defendant’s crime; Darnell v. State, 202 So.3d 281, 2016 Miss. App. LEXIS 565 (Miss. Ct. App. 2016).

Applicant’s third postconviction relief (PCR) motion based on the right to a sentencing jury was procedurally barred because it was capable of determination at the time of his sentencing; moreover, the claim was barred because it was raised in a second or successive PCR motion. The applicant was not exempt from the procedural bars because the sentence imposed was not illegal; even if the trial court did not specifically confirm on the record that the applicant did not want a sentencing jury, the sentence did not exceed the maximum statutory penalty for the crime of aggravated assault on an elderly victim. Williams v. State, 218 So.3d 1190, 2016 Miss. App. LEXIS 148 (Miss. Ct. App. 2016), aff'd, 222 So.3d 265, 2017 Miss. LEXIS 178 (Miss. 2017).

Defendant’s sentence of six months in the custody of the Mississippi Department of Corrections (MDOC) for his simple-domestic-violence conviction was a clerical error. Defendant’s sentence for this misdemeanor should have reflected that his imprisonment would be in the county jail and not under MDOC supervision. Brown v. State, 166 So.3d 565, 2015 Miss. App. LEXIS 332 (Miss. Ct. App. 2015).

Inmate’s ineffective assistance claim failed as: (1) the claim was time-barred under Miss. Code Ann. §99-39-5(2); (2) the inmate had entered a best interests plea and did not show that but for counsel’s errors, he would have insisted on going to trial; (3) the inmate did not deny that he was the driver of the vehicle or that he injured the three victims; (4) with his attorney’s help, he was able to enter a best interest plea to one of three aggravated assault charges, and his possible 60-year sentence under Miss. Code Ann. §97-3-7(2)(a) was reduced to a possible 20-year sentence, of which 18 years and 10 months were post-release supervision; and (5) the inmate was ordered to serve the time he had served while awaiting sentencing, and the sentence effectively released him from prison immediately to start his post-release supervision. Sims v. State, 134 So.3d 317, 2013 Miss. App. LEXIS 102 (Miss. Ct. App. 2013), aff'd, 134 So.3d 300, 2014 Miss. LEXIS 161 (Miss. 2014).

In a case in which defendant appealed his conviction for violating Miss. Code Ann. §97-3-7(2)(a), he unsuccessfully argued that his 15-year sentence was unreasonable. Since his sentence was within the statutory range of one year to 20 years provided for in §97-3-7(2)(a), there was no basis for finding that it was excessive. David v. State, 29 So.3d 129, 2010 Miss. App. LEXIS 112 (Miss. Ct. App. 2010).

Trial court did not err in dismissing an inmate’s petition alleging that the Mississippi Department of Corrections improperly computed his discharge date and that he had to be released from prison because the inmate was not entitled to any earned-time credit, and his time had been properly computed; because Miss. Code Ann. §99-19-81 clearly stated that a habitual offender’s sentence would not be reduced, the inmate was required to serve the maximum term of imprisonment for his crime of aggravated assault of a law enforcement officer, which was thirty years’ imprisonment, Miss. Code Ann. §97-3-7(2), and was the sentence that the inmate received. Lee v. Kelly, 34 So.3d 1203, 2010 Miss. App. LEXIS 75 (Miss. Ct. App. 2010).

Where a defendant pleaded guilty to aggravated assault under Miss. Code Ann. §97-3-7(2) and armed robbery under Miss. Code Ann. §97-3-79 and was sentenced to consecutive incarcerations of 30 years for the robbery and 10 years for the assault, the trial court properly (1) summarily dismissed the defendant’s petition for postconviction relief from the sentence without holding an evidentiary hearing because the defendant was aware that the trial court was not required to follow the State’s recommended sentence, and the sentence imposed by the trial court was within statutory guidelines; or (2) finding that the defendant’s plea was voluntary because the defendant had read and understood his guilty plea petition, which stated that the trial judge was not required to follow the State’s sentencing recommendation. Owens v. State, 996 So. 2d 85, 2008 Miss. App. LEXIS 206 (Miss. Ct. App.), cert. denied, 999 So. 2d 374, 2008 Miss. LEXIS 685 (Miss. 2008), cert. denied, 556 U.S. 1212, 129 S. Ct. 2060, 173 L. Ed. 2d 1140, 2009 U.S. LEXIS 3181 (U.S. 2009).

Where defendant was convicted of aggravated assault after he and a cohort approached a home, shot two victims, and fled the scene, his sentence of twenty years’ was within the statutory limitations set forth in Miss. Code Ann. §97-3-7(2)(b). Defendant failed to prove that the sentence was unconstitutional, because it did not punish him for exercising his right to trial nor was the sentence disproportionate to his role in the crime. Hughes v. State, 983 So. 2d 270, 2008 Miss. LEXIS 153 (Miss.), cert. denied, 555 U.S. 1052, 129 S. Ct. 633, 172 L. Ed. 2d 620, 2008 U.S. LEXIS 8544 (U.S. 2008).

In an aggravated assault case, defendant’s 17-year sentence did not violate her right to a trial by jury because it was not beyond the prescribed statutory maximum. Although 17 years was a severe sentence, it did not lead to an inference of “gross disproportionality”; aggravated assault with a deadly weapon was a serious, violent crime, and a sentence of 17 years did not meet the threshold requirement for Solem proportionality review. Ford v. State, 975 So. 2d 859, 2008 Miss. LEXIS 102 (Miss. 2008).

Defendant’s sentence after she was convicted of aggravated assault was appropriate because it was not grossly disproportionate to the crime committed and the sentence of 15 years, with 10 to serve and five years of post-release supervision was well within the statutory guidelines set forth in Miss. Code Ann. §97-3-7(2); additionally, the trial court noted that aggravated assault was a serious crime and the trial court considered the fact that defendant had a relatively clean record and had been consistently employed. White v. State, 958 So. 2d 290, 2007 Miss. App. LEXIS 412 (Miss. Ct. App. 2007).

Motion for post-conviction relief was summarily dismissed since defendant, who was 65 years old and had no prior record, was unable to show that his sentences for burglary and aggravated assault, which were within the ranges in Miss. Code Ann. §97-17-23 and Miss. Code Ann. §97-3-7 were grossly disproportionate; he could have received 45 years if the maximum terms had been run consecutively, and the facts showed that he broke into a house wielding a pistol and beat a victim. Denton v. State, 955 So. 2d 398, 2007 Miss. App. LEXIS 283 (Miss. Ct. App. 2007).

Where appellant entered a plea of guilty to aggravated assault in violation of Miss. Code Ann. §97-3-7(2), he was sentenced to 17 years in the custody of the Mississippi Department of Corrections, with 12 years to serve and five years suspended; as part of his sentence, he was also placed on five years of supervised probation upon his release. Barnes v. State, 949 So. 2d 879, 2007 Miss. App. LEXIS 70 (Miss. Ct. App. 2007).

Defendant’s conviction for aggravated assault was affirmed as the evidence indicated that defendant went to his estranged wife’s boyfriend’s apartment, shot and killed the boyfriend, and shot the wife in the neck; the trial court did not err in admitting photographs of the crime scene as the evidence was relevant to the circumstances surrounding the crime. The two twenty-year consecutive sentences that were imposed for defendant’s convictions for manslaughter and aggravated assault did not constitute cruel and unusual punishment. Lewis v. State, 905 So. 2d 729, 2004 Miss. App. LEXIS 1188 (Miss. Ct. App. 2004).

Probation under Miss. Code Ann. §47-7-33 was a conditional term that was not part of the prison sentence and was therefore not subject to the totality of sentence concept found in Miss. Code Ann. §47-7-34; defendant’s five-year probation period would not be added to her original twenty-year sentence for aggravated assault when calculating time to be served, and reinstating the full original sentence therefore would not violate the statutory maximum for her crime as set forth in Miss. Code Ann. §97-3-7. Miller v. State, 879 So. 2d 1050, 2004 Miss. App. LEXIS 546 (Miss. Ct. App.), cert. denied, 887 So. 2d 183, 2004 Miss. LEXIS 1347 (Miss. 2004).

Where the statute did not give a minimum penalty for aggravated assault, the trial judge did not err in not telling the inmate what the minimum sentence was. Dennis v. State, 873 So. 2d 1045, 2004 Miss. App. LEXIS 452 (Miss. Ct. App. 2004).

Twenty-year maximum sentence imposed on 63-year-old defendant for aggravated assault was not cruel and unusual punishment; trial court was not required to impose a lesser sentence on the theory that the sentence amounted to a life sentence because that rule applied only to cases where the maximum sentence was a life sentence as imposed by a jury or a lesser term as imposed by a trial court and not where legislature has set a specific term of years as a possible sentence and allowed the trial court to impose that term. Ray v. State, 844 So. 2d 483, 2002 Miss. App. LEXIS 690 (Miss. Ct. App. 2002), cert. denied, 846 So. 2d 229, 2003 Miss. App. LEXIS 485 (Miss. Ct. App. 2003).

Statute specified no minimum sentence, where the statute specified no minimum number of years of imprisonment, the judge was not obliged to inform the defendant that no minimum sentence was provided, or that the minimum penalty he faced was zero. Vance v. State, 803 So. 2d 1265, 2002 Miss. App. LEXIS 14 (Miss. Ct. App. 2002).

There was no indication in the record that the trial judge enhanced the sentence of one defendant over the other, and the sentences were all well within the statutory limits for armed robbery, aggravated assault and accessory after the fact. Birkley v. State, 750 So. 2d 1245, 1999 Miss. LEXIS 370 (Miss. 1999).

Thirty-year sentence was not grossly disproportionate to crime consisting of two counts of aggravated assault; jury found defendant guilty of shooting two people, apparently for no other reason than they were in rival street gang, and trial judge was statutorily empowered to sentence defendant to 20 years on each count. Hoops v. State, 681 So. 2d 521, 1996 Miss. LEXIS 433 (Miss. 1996).

The sentencing of a defendant under §99-19-81, the habitual offender statute, to the 20-year maximum term for aggravated assault as set forth in subsection (2) of this section was not disproportionate to the crime charged and did not violate the Eighth Amendment where the defendant was convicted of severely bludgeoning the victim with an iron pipe; the statutory maximum penalty for aggravated assault is not grossly out of line with the maximum terms allowed for the commission of other violent crimes in Mississippi, and the maximum penalties imposed for aggravated assault in neighboring states are not profoundly different from those in Mississippi. Fleming v. State, 604 So. 2d 280, 1992 Miss. LEXIS 382 (Miss. 1992).

The trial court properly sentenced defendant for a felony following conviction for aggravated assault, notwithstanding the discretion given the court by this section for imprisonment in the county jail or penitentiary; the indictment charging defendant with having knowingly and purposely caused bodily injury to another “with a deadly weapon” clearly categorized the assault as an aggravated assault rather than a simple assault, even though the indictment did not use the word “feloniously”. Anthony v. State, 349 So. 2d 1066, 1977 Miss. LEXIS 2203 (Miss. 1977).

In prosecution for felonious assault by cutting with knife, when jury finds defendant guilty, trial judge is justified in imposing maximum sentence when there are no mitigating circumstances, since jury has found by its verdict that state’s testimony is true. Ferrell v. State, 208 Miss. 539, 45 So. 2d 127, 1950 Miss. LEXIS 272 (Miss. 1950).

30. — Excessive fine.

While the trial court properly convicted defendant of simple domestic violence against his daughter by throwing her down, it erred in imposing a fine of $1,000 because the fine was double the amount allotted by the statute. Lindley v. State, 143 So.3d 654, 2014 Miss. App. LEXIS 414 (Miss. Ct. App. 2014).

31. Domestic violence aggravated assault.

Evidence that defendant attacked his girlfriend with a box cutter was sufficient to support a charge of domestic violence aggravated assault, and the trial court did not err in denying defendant’s motion for judgment notwithstanding the verdict. Gainwell v. State, 843 So. 2d 107, 2003 Miss. App. LEXIS 329 (Miss. Ct. App. 2003).

32. Miscellaneous.

A district court did not err by denying an inmate’s 28 U.S.C.S. § 2255 motion since his conviction for aggravated assault under Miss. Code. Ann. §97-3-7(2) was an aggravated felony under the Armed Career Criminal Act in the aftermath of the Johnson decision. United States v. Griffin, 946 F.3d 759, 2020 U.S. App. LEXIS 480 (5th Cir. Miss. 2020).

There was a factual basis for the aggravated assault charge, and therefore defendant’s guilty plea was knowingly and voluntarily made, because the State alleged that defendant struck the victim with his vehicle and pinned her to the wall. Easterling v. State, 281 So.3d 243, 2019 Miss. App. LEXIS 116 (Miss. Ct. App. 2019).

Indictment charging defendant of knowingly possessing firearm after having previously been convicted in court of misdemeanor crime of domestic violence was dismissed because use or attempted use or threatened use of physical force was not facially evident element of defendant’s prior Mississippi domestic violence convictions. United States v. Smith, 41 F. Supp. 3d 530, 2014 U.S. Dist. LEXIS 114344 (N.D. Miss. 2014).

Defendants were properly convicted of aggravated assault because defendants did not fail to receive a fair and impartial trial due to juror misconduct. James v. State, 146 So.3d 985, 2014 Miss. App. LEXIS 66 (Miss. Ct. App.), cert. denied, 146 So.3d 981, 2014 Miss. LEXIS 463 (Miss. 2014).

Defendants were properly convicted of aggravated assault because the form of the verdict constituted an intelligent answer to the issues submitted to the jury and allowed the jury’s intent to be understood in a reasonably clear manner. James v. State, 146 So.3d 985, 2014 Miss. App. LEXIS 66 (Miss. Ct. App.), cert. denied, 146 So.3d 981, 2014 Miss. LEXIS 463 (Miss. 2014).

Appellate counsel properly found that there were no arguable issues for appeal because defendant received proper notice of the aggravated-assault charge, he exercised his right to testify in his defense, he was granted a jury instruction on his theory of self-defense, his 12-year sentence was within the statutory minimum and maximum, and the jury’s guilty verdict was not against the overwhelming weight of the evidence and was supported by sufficient evidence. Moore v. State, 119 So.3d 1116, 2013 Miss. App. LEXIS 459 (Miss. Ct. App. 2013).

Defendant was not entitled to a new trial on an aggravated assault charge as, despite defendant’s account to the contrary, the jury was entitled to believe the victim’s detailed account to find that defendant purposely and knowingly shot the victim, that defendant was the aggressor, and that he did not act in self-defense, and certain facts in defendant’s testimony were contradicted by two officers’ testimonies. Gilmore v. State, 119 So.3d 278, 2013 Miss. LEXIS 361 (Miss. 2013).

Defendant’s constitutional right to confront his accusers and be present and sentencing were not violated when defendant was convicted and sentenced in absentia of felony third-offense domestic violence, Miss. Code Ann. §97-3-7(3), because defendant voluntarily waived his sentence at trial and sentencing, pursuant to Miss. Code Ann. §99-17-9, by willfully failing to attend; defendant spoke with his attorney the morning of trial and indicated he was attending but defendant never showed up. Robinson v. State, 66 So.3d 198, 2011 Miss. App. LEXIS 396 (Miss. Ct. App. 2011).

Trial court did not err in denying an inmate’s motion for post-conviction relief because the record contained sufficient evidence that the inmate pleaded guilty to culpable-negligence manslaughter, Miss. Code Ann. §97-3-47, and aggravated assault, Miss. Code Ann. §97-3-7, with knowledge and understanding of the elements of each crime when the prosecutor’s on-the-record statement reiterated the charging language in the indictment and evinced an accurate showing that the inmate was informed of the essential elements of the crimes; factual bases existed for the pleas because there was substantial evidence that the inmate committed the crimes. and through his plea petitions, the inmate was specifically informed of the statutory maximum and minimum punishment that each crime carried. Williams v. State, 31 So.3d 69, 2010 Miss. App. LEXIS 46 (Miss. Ct. App. 2010).

In a divorce action, the chancellor’s award of two pistols to the wife was improper because it appeared that 18 U.S.C.S. § 922(g)(9) made the wife’s possession of a firearm under particular circumstances illegal, Miss. Code Ann. §97-3-7(3). Thus, a remand to the chancellor was necessary for the reconsideration of the distribution of the firearms owned by the parties in light of 18 U.S.C.S. § 922(g)(9). Smith v. Smith, 994 So. 2d 882, 2008 Miss. App. LEXIS 680 (Miss. Ct. App. 2008).

Trial court did to err in denying a motion for a directed verdict, for a judgment notwithstanding the verdict, or for a new trial because while defendant may have offered evidence and testimony tending to show that the shooting was accidental, the State clearly presented evidence demonstrating that the shooting amounted to aggravated assault under Miss. Code Ann. §97-3-7(2)(b). The State presented a 911 transcript showing that defendant was the aggressor and testimony showing that the victim was injured by a gunshot wound to the head. Christian v. State, 998 So. 2d 1019, 2008 Miss. App. LEXIS 516 (Miss. Ct. App. 2008).

Fact that a debtor was convicted of simple assault under Miss. Code Ann. §97-3-7 did not preclude the debtor from challenging the claim of non-dischargeability under 11 U.S.C.S. § 523(a)(3) in a bankruptcy court proceeding. Berry v. Vollbracht (In re Vollbracht), 2008 Bankr. LEXIS 1044 (Bankr. N.D. Miss. Mar. 20, 2008).

Even if a verdict finding defendant guilty of resisting arrest was inconsistent with a verdict of not guilty of simple assault on a police officer, that inconsistency was not grounds for reversal as the evidence was sufficient to sustain the resisting arrest conviction; an officer testified that after defendant struck another officer in the chest, a “fierce struggle” ensued while officers attempted to place defendant in handcuffs. Chambers v. State, 973 So. 2d 266, 2007 Miss. App. LEXIS 692 (Miss. Ct. App.), cert. denied, 973 So. 2d 244, 2007 Miss. LEXIS 699 (Miss. 2007).

In an aggravated assault case, a motion for a new trial was not warranted because the guilty verdict was not against the overwhelming weight of the evidence where the jury heard the two versions of events relating to a shooting, including witnesses who helped the victim and defendant’s alibi witness. Ellison v. Landry, 199 Miss. 161, 24 So. 2d 319, 1946 Miss. LEXIS 182 (Miss. 1946).

The concept of “self-help” in resisting an arrest should be limited to those situations where the arrest is in fact illegal and the arrester and arrestee have reason to know that it is, or where the arrest is accompanied by excessive force; there is no right to resist an arrest based upon good faith reliance on a duly issued arrest warrant where the arrestee has no reasonable basis to conclude that the warrant was issued in bad faith. Murrell v. State, 655 So. 2d 881, 1995 Miss. LEXIS 234 (Miss. 1995).

A defendant did not have the right to resist an unlawful arrest where the arresting officers were acting in good faith on an unlawful warrant erroneously issued by a judge. Murrell v. State, 655 So. 2d 881, 1995 Miss. LEXIS 234 (Miss. 1995).

Section45-6-3(c), which establishes the requirements for training of law enforcement officers who have been given traditional law enforcement duties, was not applicable in a prosecution for simple assault upon a law enforcement officer in which the defendant contended that the victim was not a “law enforcement officer” within the meaning of this section because he had not attended the training academy as required by §45-6-3(c). Amerson v. State, 648 So. 2d 58, 1994 Miss. LEXIS 596 (Miss. 1994).

A conviction for simple assault upon a law enforcement officer would stand even if the victim was not a “de jure officer” but was merely a “de facto officer” acting within the scope of his duties and under the color of appointment at the time of the offense. Amerson v. State, 648 So. 2d 58, 1994 Miss. LEXIS 596 (Miss. 1994).

A simple assault involving the shearing of the victim’s hair was not a lesser included offense of an aggravated assault involving biting of the victim and stabbing her with a pen, since the offenses were separate and distinct even though they arose out of the same sequence of events, where the stabbing and biting took place while the defendant and the victim were on an interstate highway and the shearing took place after they returned to town to get scissors, so that there was a sufficient gap in time between the assaults to constitute separate offenses. Simmons v. State, 568 So. 2d 1192, 1990 Miss. LEXIS 605 (Miss. 1990).

The offenses of aggravated assault under this section and shooting into a dwelling house under §97-37-29 did not constitute the “same offense” for double jeopardy purposes where at least 18 shots were fired into the house and the victim was not struck with all 18 shots; the 2 statutes require proof of different facts in that shooting into a dwelling house is not required to establish an aggravated assault, and neither injury nor attempt to injure is required to prove the offense of shooting into a dwelling house. Shook v. State, 552 So. 2d 841, 1989 Miss. LEXIS 449 (Miss. 1989).

Defendant was not denied right to a speedy trial where, although almost 7 years elapsed between his indictment on charges of murder and aggravated assault and his arraignment, substantially all of the delay was due to defendant’s confinement in a state mental institution pursuant to court order, issued shortly after the indictment, finding defendant insane and not competent to stand trial, and trial was set in less than 6 weeks after the court was notified by institution’s staff of defendant’s competence to stand trial. Smith v. State, 489 So. 2d 1389, 1986 Miss. LEXIS 2482 (Miss. 1986).

In a prosecution for aggravated assault under subsection (2) of this section, the district attorney’s statements in his closing argument to the effect that the State did not have a burden to prove defendant guilty beyond all reasonable doubt and every reasonable doubt, as distinguished from beyond a doubt, did not constitute reversible error on the facts of the case. Gray v. State, 427 So. 2d 1363, 1983 Miss. LEXIS 2351 (Miss. 1983).

That accused in prosecution for felonious assault by cutting with knife was arraigned under indictment before he had employed counsel is not ground for reversal of case when accused did not ask court to delay arraignment until he could employ counsel nor claim that he would be unable to employ counsel and ask court to appoint one for him and defendant was well represented throughout trial by attorneys. Ferrell v. State, 208 Miss. 539, 45 So. 2d 127, 1950 Miss. LEXIS 272 (Miss. 1950).

Fact that judgment of conviction in prosecution for assault and battery with intent to kill and murder erroneously recites that case was tried by jury of twelve consisting of named juror and eleven others, named juror being member of regular jury panel for term but not in fact on this jury, will not be considered by supreme court on appeal when affidavits setting forth facts were filed long after motion for new trial had been overruled and after court term had adjourned, and matter was not presented to trial court for correction. Craig v. State, 208 Miss. 528, 44 So. 2d 860, 1950 Miss. LEXIS 270 (Miss. 1950).

Where jury returned verdict finding defendant guilty as charged but recommended the mercy of the court, trial court had the right to discard as surplusage that portion which said “but recommend the mercy of the court.” Craig v. State, 208 Miss. 528, 44 So. 2d 860, 1950 Miss. LEXIS 270 (Miss. 1950).

Verdict of guilty of assault and battery “with intent to commit manslaughter” is a conviction of assault and battery only. Ex parte Burden, 92 Miss. 14, 45 So. 1, 1907 Miss. LEXIS 5 (Miss. 1907).

OPINIONS OF THE ATTORNEY GENERAL

Based on subsection (2) of this section, person convicted of crime of aggravated assault on law enforcement officer is disqualified from holding public office; therefore, if election officials find, as matter of fact, that potential candidate has been convicted of such crime, they could not legally allow person’s name to be placed on ballot; in order for person with such conviction to again become eligible to hold public office, person must obtain full pardon from Governor. Chaney, Mar. 9, 1993, A.G. Op. #93-0119.

Violations of this section that are misdemeanors would be handled by justice, county or circuit courts, and offenders would be sentenced to county jail; legislature is speaking to those courts in Miss. Code Section 97-3-7l. Evans, June 9, 1993, A.G. Op. #93-0296.

Argument has been advanced that this section, which is simple assault statute, by stating that offender may be punished by imprisonment in “county jail”; did not intend this language to mandate county jail when offender is convicted in municipal court of simple assault, which is offense against municipality not state; reading statute as a whole it appears that legislature was using phrase “county jail” as opposed to penitentiary to help distinguish misdemeanor punishments from felony punishments. Evans, June 9, 1993, A.G. Op. #93-0296.

“Family or household member”, as that term is used in Sections 97-3-7 and 99-3-7, includes individuals who are married, were married, or who live together in a relationship, although not married; further, it is not limited to a blood relationship and can relate to an in-law relationship or other relatives of one spouse living in the household; however, “boyfriend-girlfriend” (or any other variation of this) relationships are not included in the definition of “family or household member”, unless the persons reside or resided together as spouses; finally, although not falling into the definition of “family or household member”, if the individuals have a biological or legally adopted child between them, the relationship is also protected. Carrubba, Oct. 6, 2000, A.G. Op. #2000-0588.

Simple domestic violence as defined in subsection (3) of this section, is a crime against the person. Municipal courts may not utilize the provisions of §99-15-26 (1) to non-adjudicate criminal defendants charged with and pleading guilty to the offense of simple assault or simple domestic violence. Dawson, Jan. 23, 2004, A.G. Op. 04-0019.

If an individual has two convictions for simple domestic violence, and within the five year time frame, commits an offense which would be an aggravated domestic, it is within the discretion of the prosecutor whether to seek prosecution for a third simple domestic or for a first aggravated domestic. Garber, Apr. 29, 2005, A.G. Op. 05-0205.

Under Section 97-3-7(4), any conviction of aggravated domestic violence is a felony, and as such is punishable in the same manner as a non-domestic aggravated assault conviction pursuant to Section 97-3-7(2). Garber, Apr. 29, 2005, A.G. Op. 05-0205.

There is no requirement that an individual be convicted of a “first” or “second” simple domestic violence before being charged with a felony third. It is sufficient that the offender have been convicted twice of simple domestic violence within the five year time frame of when the third offense is charged. Garber, Apr. 29, 2005, A.G. Op. 05-0205.

If a person is granted bail by a municipal court on a charge of aggravated assault and while out on bail a justice court finds probable cause that the person has committed commercial burglary, the justice court should revoke bail for the aggravated assault charge and shall order the person detained, without bail, on the commercial burglary charge, pending trial on the aggravated assault charge. Turnage, June 26, 2006, A.G. Op. 06-0246.

The Court hearing a domestic violence charge could prohibit the defendant from possessing a handgun if, pursuant to Miss. Code Ann. §93-21-11, the Court deems it necessary to protect the victim(s). Where a handgun was stolen from the defendant, recovered by a Police Department, and its return was requested by the defendant, the Department may ask the Court for such an order and if granted, may refuse to return the handgun to the defendant. Dawson, Jr., March 9, 2007, A.G. Op. #07-00101, 2007 Miss. AG LEXIS 89.

RESEARCH REFERENCES

ALR.

Acquittal on homicide charge as bar to subsequent prosecution for assault and battery or vice versa. 37 A.L.R.2d 1068.

Effect of failure or refusal of court, in robbery prosecution, to instruct on assault and battery. 58 A.L.R.2d 808.

Attempt to commit assault as criminal offense. 79 A.L.R.2d 597.

Fact that gun was unloaded as affecting criminal responsibility. 79 A.L.R.2d 1412.

Admissibility, in prosecution for assault or similar offense involving physical violence, of extent or effect of victim’s injuries. 87 A.L.R.2d 926.

Intent to do physical harm as essential element of crime of assault with deadly or dangerous weapon. 92 A.L.R.2d 635.

Kicking as aggravated assault, or assault with dangerous or deadly weapon. 33 A.L.R.3d 922.

Use of set gun, trap, or similar device on defendant’s own property. 47 A.L.R.3d 646.

Consent as defense to charge of criminal assault and battery. 58 A.L.R.3d 662.

Assault and battery: sexual nature of physical contact as aggravating offense. 63 A.L.R.3d 225.

Right to resist excessive force used in accomplishing lawful arrest. 77 A.L.R.3d 281.

Automobile as dangerous or deadly weapon within meaning of assault or battery statute. 89 A.L.R.3d 1026.

Assault: criminal liability as barring or mitigating recovery of punitive damages. 98 A.L.R.3d 870.

Criminal responsibility for physical measures undertaken in connection with treatment of mentally disordered patient. 99 A.L.R.3d 854.

Pocket or clasp knife as deadly or dangerous weapon for purposes of statute aggravating offenses such as assault, robbery, or homicide. 100 A.L.R.3d 287.

Constitutionality of assault and battery laws limited to protection of females only or which provide greater penalties for males than for females. 5 A.L.R.4th 708.

Dog as deadly or dangerous weapon for purposes of statutes aggravating offenses such as assault and robbery. 7 A.L.R.4th 607.

Walking cane as deadly or dangerous weapon for purpose of statutes aggravating offenses such as assault and robbery. 8 A.L.R.4th 842.

Single act affecting multiple victims as constituting multiple assaults or homicides. 8 A.L.R.4th 960.

Parts of the human body, other than feet, as deadly or dangerous weapons for purposes of statutes aggravating offenses such as assault and robbery. 8 A.L.R.4th 1268.

Sufficiency of evidence to establish criminal participation by individual involved in gang fight or assault. 24 A.L.R.4th 243.

Liability of hotel or motel operator for injury to guest resulting from assault by third party. 28 A.L.R.4th 80.

Fact that gun was unloaded as affecting criminal responsibility. 68 A.L.R.4th 507.

Criminal assault or battery statutes making attack on elderly person a special or aggravated offense. 73 A.L.R.4th 1123.

Double jeopardy: various acts of weapons violations as separate or continuing offense. 80 A.L.R.4th 631.

Fact that gun was broken, dismantled, or inoperable as affecting criminal responsibility under weapons statute. 81 A.L.R.4th 745.

Sufficiency of bodily injury to support charge of aggravated assault. 5 A.L.R.5th 243.

Validity and construction of “extreme indifference” murder statute. 7 A.L.R.5th 758.

Stationary object or attached fixture as deadly or dangerous weapon for purposes of statute aggravating offenses such as assault, robbery, or homicide. 8 A.L.R.5th 775.

Kicking as aggravated assault, or assault with dangerous or deadly weapon. 19 A.L.R.5th 823.

Excessiveness or adequacy of damages awarded for injuries to head or brain. 50 A.L.R.5th 1.

Attempt to commit assault as criminal offense. 93 A.L.R.5th 683.

Dog as deadly or dangerous weapon for purposes of statutes aggravating offenses such as assault and robbery. 124 A.L.R.5th 657.

Cigarette Lighter as Deadly or Dangerous Weapon. 22 A.L.R. 6th 533.

Parts of Human Body, other than Feet, as Deadly or Dangerous Weapons or Instrumentalities for Purposes of Statutes Aggravating Offenses such as Assault and Robbery. 67 A.L.R.6th 103.

What constitutes assault “resulting in serious bodily injury” within the special maritime or territorial jurisdiction of the United States for purposes of 18 USCS § 113(f), providing punishment for such act. 55 A.L.R. Fed. 895.

Am. Jur.

6 Am. Jur. 2d, Assault and Battery §§ 1 et seq.

2A Am. Jur. Pl & Pr Forms (Rev), Assault and Battery, Forms 1 et seq. (complaint, petition, or declaration – allegation – guilty plea in prior criminal action for same assault); Form 31 et seq. (complaint, petition, or declaration – assault and battery – attack on pregnant woman – prenatal injury to child); Form 79.1 (complaint, petition, or declaration – assault and battery – attack with knife or other sharp object).

2A Am. Jur. Pl & Pr Forms, Rev, Arrest, Form 81.

3 Am. Jur. Trials, Preparing and Using Photographs in Criminal Cases § 12 (assault scene).

36 Am. Jur. Trials 241, Defending Assault and Battery Cases.

2 Am. Jur. Proof of Facts, Assault and Battery, Proofs 1-8.

1 Am. Jur. Proof of Facts 3d 613, Assault and Battery.

CJS.

6A C.J.S., Assault and Battery §§ 69 et seq.

Law Reviews.

1983 Mississippi Supreme Court Review: Reckless driving as aggravated assault. 54 Miss. L. J. 130, March, 1984.

Practice References.

Ronald L. Schoenberg, Criminal Law Deskbook (Matthew Bender).

§§ 97-3-9 and 97-3-11. Repealed.

Repealed by Laws, 1974, ch. 458, § 2, eff from and after July 1, 1974.

§97-3-9. [Codes, 1880, § 2983; 1892, § 968; 1906, § 1044; Hemingway’s 1917, § 772; 1930, § 788; 1942, § 2012]

§97-3-11. [Codes, 1880, § 2984; 1892, § 969; 1906, § 1045;Hemingway’s 1917, § 773; 1930, § 789; 1942, § 2013]

Editor’s Notes —

The substance of the above sections, as repealed by Section 2 of Chapter 458, Laws of 1974, has been incorporated in general terms in §97-3-7, as amended by Section 1 of Chapter 458, Laws of 1974.

Former §97-3-9 was entitled: Assault and battery; while in possession of deadly weapons.

Former §97-3-11 was entitled: Assault and battery; pointing, aiming, discharging a gun.

§ 97-3-13. False confinement; sending sane person to psychiatric hospital or institution.

Every person or officer who maliciously sends to or confines in a psychiatric hospital or institution or other place, any sane person as a person with mental illness, knowing the person to be sane, shall be guilty of a felony, and, on conviction, shall be punished by a fine of not more than Five Hundred Dollars ($500.00), or by imprisonment in the Penitentiary not more than one (1) year, or in the county jail not more than six (6) months.

HISTORY: Codes, 1892, § 1316; 1906, § 1390; Hemingway’s 1917, § 1133; 1930, § 1164; 1942, § 2407; Laws, 2008, ch. 442, § 32, eff from and after July 1, 2008.

Amendment Notes —

The 2008 amendment substituted “a psychiatric hospital or institution” for “asylum, mad-house” and “person with mental illness” for “lunatic or insane person”; and made a minor stylistic change.

Cross References —

Criminal sanctions for unlawfully conspiring to commit an individual to a treatment facility, see §41-21-107.

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any felony violation, see §99-19-73.

RESEARCH REFERENCES

ALR.

Validity of statutory provision for commitment to mental institution of one acquitted of crime on ground of insanity without formal determination of mental condition at time of acquittal. 50 A.L.R.3d 144.

Am. Jur.

40 Am. Jur. Proof of Facts 2d 81, False Imprisonment in Connection with Confinement in Nursing Home or Hospital.

§ 97-3-15. Homicide; justifiable homicide; use of defensive force; duty to retreat.

  1. The killing of a human being by the act, procurement or omission of another shall be justifiable in the following cases:
    1. When committed by public officers, or those acting by their aid and assistance, in obedience to any judgment of a competent court;
    2. When necessarily committed by public officers, or those acting by their command in their aid and assistance, in overcoming actual resistance to the execution of some legal process, or to the discharge of any other legal duty;
    3. When necessarily committed by public officers, or those acting by their command in their aid and assistance, in retaking any felon who has been rescued or has escaped;
    4. When necessarily committed by public officers, or those acting by their command in their aid and assistance, in arresting any felon fleeing from justice;
    5. When committed by any person in resisting any attempt unlawfully to kill such person or to commit any felony upon him, or upon or in any dwelling, in any occupied vehicle, in any place of business, in any place of employment or in the immediate premises thereof in which such person shall be;
    6. When committed in the lawful defense of one’s own person or any other human being, where there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished;
    7. When necessarily committed in attempting by lawful ways and means to apprehend any person for any felony committed;
    8. When necessarily committed in lawfully suppressing any riot or in lawfully keeping and preserving the peace; and
    9. When necessarily committed in the performance of duty as a member of a church or place of worship security program as described in Section 45-9-171.
    1. As used in subsection (1)(c) and (d) of this section, the term “when necessarily committed” means that a public officer or a person acting by or at the officer’s command, aid or assistance is authorized to use such force as necessary in securing and detaining the felon offender, overcoming the offender’s resistance, preventing the offender’s escape, recapturing the offender if the offender escapes or in protecting himself or others from bodily harm; but such officer or person shall not be authorized to resort to deadly or dangerous means when to do so would be unreasonable under the circumstances. The public officer or person acting by or at the officer’s command may act upon a reasonable apprehension of the surrounding circumstances; however, such officer or person shall not use excessive force or force that is greater than reasonably necessary in securing and detaining the offender, overcoming the offender’s resistance, preventing the offender’s escape, recapturing the offender if the offender escapes or in protecting himself or others from bodily harm.
    2. As used in subsection (1)(c) and (d) of this section the term “felon” shall include an offender who has been convicted of a felony and shall also include an offender who is in custody, or whose custody is being sought, on a charge or for an offense which is punishable, upon conviction, by death or confinement in the Penitentiary.
    3. As used in subsections (1)(e) and (3) of this section, “dwelling” means a building or conveyance of any kind that has a roof over it, whether the building or conveyance is temporary or permanent, mobile or immobile, including a tent, that is designed to be occupied by people lodging therein at night, including any attached porch.
  2. A person who uses defensive force shall be presumed to have reasonably feared imminent death or great bodily harm, or the commission of a felony upon him or another or upon his dwelling, or against a vehicle which he was occupying, or against his business or place of employment or the immediate premises of such business or place of employment, if the person against whom the defensive force was used, was in the process of unlawfully and forcibly entering, or had unlawfully and forcibly entered, a dwelling, occupied vehicle, business, place of employment or the immediate premises thereof or if that person had unlawfully removed or was attempting to unlawfully remove another against the other person’s will from that dwelling, occupied vehicle, business, place of employment or the immediate premises thereof and the person who used defensive force knew or had reason to believe that the forcible entry or unlawful and forcible act was occurring or had occurred. This presumption shall not apply if the person against whom defensive force was used has a right to be in or is a lawful resident or owner of the dwelling, vehicle, business, place of employment or the immediate premises thereof or is the lawful resident or owner of the dwelling, vehicle, business, place of employment or the immediate premises thereof or if the person who uses defensive force is engaged in unlawful activity or if the person is a law enforcement officer engaged in the performance of his official duties.
  3. A person who is not the initial aggressor and is not engaged in unlawful activity shall have no duty to retreat before using deadly force under subsection (1)(e) or (f) of this section if the person is in a place where the person has a right to be, and no finder of fact shall be permitted to consider the person’s failure to retreat as evidence that the person’s use of force was unnecessary, excessive or unreasonable.
    1. The presumptions contained in subsection (3) of this section shall apply in civil cases in which self-defense or defense of another is claimed as a defense.
    2. The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant acted in accordance with subsection (1)(e) or (f) of this section. A defendant who has previously been adjudicated “not guilty” of any crime by reason of subsection (1)(e) or (f) of this section shall be immune from any civil action for damages arising from the same conduct.

HISTORY: Codes, Hutchinson’s 1848, ch. 64, art. 12, Title 3 (2); 1857, ch. 64, art. 168; 1871, § 2631; 1880, § 2878; 1892, § 1152; 1906, § 1230; Hemingway’s 1917, § 960; 1930, § 988; 1942, § 2218; Laws, 1983, ch. 382; Laws, 2006, ch. 492, § 1; Laws, 2016, ch. 421, § 4, eff from and after passage (approved Apr. 15, 2016.).

Amendment Notes —

The 2006 amendment substituted “in any dwelling, in any occupied vehicle in any place of business in any place of employment or in the immediate premises thereof in which such person shall be” for “in any dwelling house in which such person shall be” in (1)(e); redesignated former (2) and (3) as present (2)(a) and (b); in (2), substituted “As used in subsection (1)(c) and (d)” for “As used in paragraphs (1)(c) and (1)(d)” at the beginning of (a) and (b), and added (c); and added (3) through (5).

The 2016 amendment added (a)(i), and made minor stylistic changes.

Cross References —

Excusable homicide, see §97-3-17.

JUDICIAL DECISIONS

1. In general.

2. Killing in seeking to arrest.

3. Killing in resisting unlawful act.

4. Self-defense; generally.

5. —Evidence.

6. —Question for jury.

7. Instructions; generally.

8. —Self-defense.

9. —Defense of others.

10. —Defense of property.

11. —Justification.

1. In general.

Defendant believed the victim, her fiance, slept with her daughter, but unfortunately for defendant, “needed killing” is not one of the legal justifications for homicide as set forth in the statute. Wilson v. State, 149 So.3d 544, 2014 Miss. App. LEXIS 354 (Miss. Ct. App. 2014).

Where husband shot wife’s paramour and there was no claim of self-defense and evidence did not show that the deceased was about to commit a felony, this section [Code 1942, § 2218] was not applicable. Carter v. State, 221 Miss. 111, 72 So. 2d 231, 1954 Miss. LEXIS 518 (Miss. 1954).

2. Killing in seeking to arrest.

The killing of a person who is fleeing from arrest for felony is not justifiable, even when the arrest is under warrant, except when the arrest could not otherwise be made and in cases of arrest of desperate and dangerous criminals of a vicious type. Hubbard v. State, 202 Miss. 229, 30 So. 2d 901, 1947 Miss. LEXIS 263 (Miss. 1947).

A sheriff having reliable information that a felony had been committed at a house was not justified in concluding that there was probable cause to believe that the negroes who ran from the house when the sheriff and his posse approached the next morning, because they ran, had participated in the felony, or in pursuing such cause to the extreme of shooting, or shooting at, the fleeing negroes. Hubbard v. State, 202 Miss. 229, 30 So. 2d 901, 1947 Miss. LEXIS 263 (Miss. 1947).

Officer attempting to make unlawful arrest may plead self-defense. Wilkinson v. State, 143 Miss. 324, 108 So. 711, 1926 Miss. LEXIS 270 (Miss. 1926).

3. Killing in resisting unlawful act.

In his trial for murder of a police officer, defendant’s contention that the homicide was justifiable because he was resisting an unlawful arrest and reasonably believed himself to be in imminent danger of great bodily harm was not supported by the evidence, where the law officers had sufficient grounds to believe that fugitives for whom they had arrest warrants were located in the house in which defendant was staying and fired gas into the house only after a reasonable time had elapsed following the announcements requesting the occupants to vacate the house; failure of the occupants to exit as requested demonstrated their refusal to cooperate with the arresting officers who had identified themselves and stated their purpose, and the officers were warranted in using reasonable force and means to execute the arrest warrants. Norman v. State, 302 So. 2d 254, 1974 Miss. LEXIS 1416 (Miss. 1974), cert. denied, 421 U.S. 966, 95 S. Ct. 1956, 44 L. Ed. 2d 453, 1975 U.S. LEXIS 1588 (U.S. 1975).

A girl’s escort had a right to intervene for the purpose of preventing further injury to his girl friend but he had no right to kill the assailant. Fortenberry v. State, 213 Miss. 116, 56 So. 2d 56, 1952 Miss. LEXIS 338 (Miss. 1952).

While malice aforethought is a necessary element in the crime of murder, it does not always follow therefrom that the existence of actual malice at the time of the slaying would necessarily have the effect of rendering a particular homicide a case of murder, since a person may be guilty only of manslaughter or justifiable homicide when slaying another even though the accused is mad and is bearing ill will toward his adversary at the time of the killing, if the act is done while resisting an attempt of the latter “to do any unlawful act, or after such attempt shall have failed,” if such anger or ill will is engendered by the particular circumstances of the unlawful act then being attempted, or the commission of which is then thwarted, and is nonexistent prior thereto, each case depending upon its own facts and circumstances. Bangren v. State, 196 Miss. 887, 17 So. 2d 599, 1944 Miss. LEXIS 264 (Miss. 1944), overruled, Ferrell v. State, 733 So. 2d 788, 1999 Miss. LEXIS 87 (Miss. 1999).

To constitute murder, the malice must precede the unlawful act which is being attempted or committed by the person killed, where the killing is done in resisting his attempt to do an unlawful act. Bangren v. State, 196 Miss. 887, 17 So. 2d 599, 1944 Miss. LEXIS 264 (Miss. 1944), overruled, Ferrell v. State, 733 So. 2d 788, 1999 Miss. LEXIS 87 (Miss. 1999).

Where killing took place while accused was allegedly ejecting decedent from her home after forbidden him to re-enter, the fact that the law was being violated in accused’s habitation did not deny her the right to defend or protect it from unwarranted intrusions or trespasses as a home. Bangren v. State, 196 Miss. 887, 17 So. 2d 599, 1944 Miss. LEXIS 264 (Miss. 1944), overruled, Ferrell v. State, 733 So. 2d 788, 1999 Miss. LEXIS 87 (Miss. 1999).

Where the evidence showed that the decedent was shot and killed by accused in ejecting him from her home, while decedent was committing an unlawful act, a wilful and forbidden trespass, and accused did not shoot him pursuant to her alleged threat that if he came back to the house she would kill him, but because of what transpired after he re-entered the house, the trial court erred in not limiting the issue for the jury to the question of manslaughter or justifiable homicide, and conviction of murder must be reversed and case remanded for new trial. Bangren v. State, 196 Miss. 887, 17 So. 2d 599, 1944 Miss. LEXIS 264 (Miss. 1944), overruled, Ferrell v. State, 733 So. 2d 788, 1999 Miss. LEXIS 87 (Miss. 1999).

Evidence of killing of constable, when constable, armed with void search warrant, after search had been made, forcibly entered defendant’s house without permission and without stating his purpose, held not to authorize conviction for crime higher than manslaughter. Jones v. State, 170 Miss. 581, 155 So. 430, 1934 Miss. LEXIS 176 (Miss. 1934).

Married woman’s killing of deceased to prevent his re-entering her home and committing assault upon her held not to constitute murder. Bowen v. State, 164 Miss. 225, 144 So. 230, 1932 Miss. LEXIS 235 (Miss. 1932).

Person is entitled to defend home with force against unlawful entries and to prevent crimes from being committed therein. Bowen v. State, 164 Miss. 225, 144 So. 230, 1932 Miss. LEXIS 235 (Miss. 1932).

Defendant, who killed deceased while he was breaking into home to kill or injure defendant, not guilty of manslaughter. Williams v. State, 98 So. 242 (Miss. 1923).

4. Self-defense; generally.

Because the record reflected that sufficient evidence was presented for a competent jury to find beyond a reasonable doubt that defendant was guilty of manslaughter and failed to act in reasonable self-defense, defense of others, or defense of his home, the circuit court did not err in denying defendant’s motion for judgment notwithstanding the verdict. Howell v. State, 144 So.3d 211, 2014 Miss. App. LEXIS 424 (Miss. Ct. App. 2014).

In a simple assault case, there was no error in a refusal to apply the Castle Doctrine because a grandmother was within her right to retrieve a child from defendant’s car after a scheduled visitation. Matthews v. City of Madison, 143 So.3d 571, 2014 Miss. LEXIS 373 (Miss. 2014).

Application of the presumption for the Castle Doctrine does not depend on the existence of reasonable fear in the defendant; rather, the presumption applies if one of the circumstances is met. Matthews v. City of Madison, 143 So.3d 571, 2014 Miss. LEXIS 373 (Miss. 2014).

Court rejected defendant’s claim of ineffective assistance of counsel; because the defense was that defendant killed the victim in self-defense, counsel’s statement conceding that defendant killed the victim was a tactical decision. Ray v. State, 27 So.3d 416, 2009 Miss. App. LEXIS 496 (Miss. Ct. App. 2009), cert. denied, 27 So.3d 404, 2010 Miss. LEXIS 61 (Miss. 2010).

Where defendant was convicted for killing his former girlfriend, given his testimony that her male friend had previously threatened him with a gun, whether or not the male friend owned a gun at the time of the alleged threats was relevant because it tended to increase or decrease, however minimally, the probability of the truth of defendant’s testimony supporting his defense of self-defense. Therefore, the trial court abused its discretion when it prohibited the question on the male friend’s prior gun ownership, even though same was ultimately found to constitute harmless error in the case at bar. Raiford v. State, 907 So. 2d 998, 2005 Miss. App. LEXIS 279 (Miss. Ct. App. 2005).

Where individual is unjustifiably attacked by larger and unarmed person, is incapable of coping with that person in physical confrontation, and reasonably perceives that she will receive serious and great bodily injuries as result, that individual is justified in killing her attacker with a deadly weapon. Manuel v. State, 667 So. 2d 590, 1995 Miss. LEXIS 591 (Miss. 1995).

Trial court properly refuses self defense instruction in homicide case in which uncontroverted testimony is that victim was asleep and had been asleep approximately 30 minutes at time victim was shot and killed. Merrill v. State, 482 So. 2d 1147, 1986 Miss. LEXIS 2369 (Miss. 1986).

Failure of district attorney to produce statement of homicide defendant for inspection and use by defendant and defendant’s counsel does not prejudice defendant where statement, made to deputy sheriff, admitting killing of deceased, is not admission of guilt or inconsistent with defendant’s plea of self defense, and circumstances surrounding statement do not indicate that defendant was fleeing or acting in manner inconsistent with defense. Buckhalter v. State, 480 So. 2d 1128, 1985 Miss. LEXIS 2395 (Miss. 1985).

In an action for damages which arose when the decedent was shot and killed by a deputy sheriff, the killing would be justifiable under the provisions of the justifiable homicide statute where it was done in self-defense; the shooting was also necessary under the circumstances in order to preserve the peace and to apprehend the decedent, who had fired two rifles at the officers while resisting arrest. Coghlan v. Phillips, 447 F. Supp. 21, 1977 U.S. Dist. LEXIS 16951 (S.D. Miss. 1977), aff'd, 567 F.2d 652, 1978 U.S. App. LEXIS 12668 (5th Cir. Miss. 1978).

In a homicide prosecution, in order to justify a contention of self-defense, the record must disclose that the defendant had a reasonable apprehension of a design or plan on the part of the deceased to kill him or to do great bodily harm, and further that there was imminent danger of such design being accomplished; the mere apprehension that some minor battery might be committed upon the defendant is not sufficient. Stennis v. State, 234 So. 2d 611, 1970 Miss. LEXIS 1411 (Miss. 1970).

Where the defendant turned himself over to a constable immediately after shooting the decedent, and was found at the time to be suffering from numerous injuries including a broken jaw, and where the defendant was smaller and older than the decedent and had long been afflicted with a disabling heart disease, slight variances in the defendant’s story as told to officers and as given on the witness stand, and the fact that the room where the shooting occurred showed few signs of a violent scuffle, were insufficient to overcome the presumption of innocence, and the defendant was entitled to a peremptory instruction of acquittal. Cassidy v. State, 233 So. 2d 122, 1970 Miss. LEXIS 1650 (Miss. 1970).

One may be found guilty of murder notwithstanding his plea of self-defense, where he was the aggressor in the fatal encounter. Spearman v. State, 237 Miss. 853, 116 So. 2d 823, 1960 Miss. LEXIS 255 (Miss. 1960).

In order to justify or excuse the taking of human life in self-defense, the danger of peril, loss of life or the infliction of serious bodily harm must be, or appear to be, impending and imminent so urgent and pressing that it is necessary for him to kill in order to save himself. Pitts v. State, 211 Miss. 268, 51 So. 2d 448, 1951 Miss. LEXIS 354 (Miss. 1951), overruled, Hudson v. State, 295 So. 2d 766, 1974 Miss. LEXIS 1521 (Miss. 1974).

To justify a killing in self-defense the defendant must have believed, and had good reason to believe, that at the time he was in danger of the loss of his life, or great bodily harm at the hands of the deceased. Spivey v. State, 47 So. 2d 855 (Miss. 1950).

The phrase “reasonable ground to apprehend,” as used in this section [Code 1942, § 2218], implies apparent danger. Bell v. State, 207 Miss. 518, 42 So. 2d 728, 1949 Miss. LEXIS 360 (Miss. 1949).

To justify a homicide as self-defense, the danger need not be actual, but only reasonably apparent and imminent so as to raise a reasonable doubt of guilt; the defendant is not required to prove that he acted in justifiable self-defense. Scott v. State, 203 Miss. 349, 34 So. 2d 718, 1948 Miss. LEXIS 276 (Miss. 1948).

The phrase “reasonable ground to apprehend” implies apparent danger, fear or anticipation. Dillon v. State, 196 Miss. 625, 18 So. 2d 454, 1944 Miss. LEXIS 243 (Miss. 1944).

In homicide prosecution for inflicting fatal wound while undertaking to arrest victim, wherein defendant invoked defense that he acted in necessary self-defense, nature of the instrument employed, whether a pistol or blackjack, both of which defendant had, was immaterial, since the important issue was the justification of the means employed. Howard v. State, 18 So. 2d 148 (Miss. 1944).

Homicide not justified by mere knowledge of threat. James v. State, 139 Miss. 521, 104 So. 301, 1925 Miss. LEXIS 169 (Miss. 1925).

There is little practical difference in the meaning of the statutory words “reasonable ground to apprehend” and the words “good reason to believe.” Matthews v. State, 108 Miss. 72, 66 So. 325, 1914 Miss. LEXIS 170 (Miss. 1914).

Great bodily harm justifying killing of human being does not mean mere bruises inflicted by hands and fists, though the party inflicting is the stronger of the two persons. Waldrop v. State, 98 Miss. 567, 54 So. 66, 1910 Miss. LEXIS 95 (Miss. 1910).

Defendant held justified in using a deadly weapon to protect himself, where deceased was a much larger and stronger man and defendant was liable to receive great bodily injury at his hands, although deceased was unarmed. Hill v. State, 94 Miss. 391, 49 So. 145, 1908 Miss. LEXIS 59 (Miss. 1908).

Defendant may plead self-defense although following a fight he armed himself and sought his former adversary intending to kill him, where the latter fired first. Garner v. State, 93 Miss. 843, 47 So. 500, 1908 Miss. LEXIS 148 (Miss. 1908).

5. —Evidence.

Defendant was entitled to a new trial because counsel provided ineffective assistance by failing to so move as (1) there was no strategic reason for failing to so move, and (2) it was reasonably probable the motion would have been granted, since defendant had a right to be where defendant was, the victim was an immediate aggressor by forcibly entering a dwelling, and defendant engaged in no unlawful activity, so defendant had no duty to retreat. Woods v. State, 242 So.3d 47, 2018 Miss. LEXIS 85 (Miss. 2018).

State’s motions in limine were properly granted as self defense or defense of another was not available to defendant as a defense because defendant approached the unarmed victim from behind, began yelling at him, and shot him while he had his arms in the air; there was no overt act at the time defendant shot the victim that could indicate danger of death or great bodily harm at the moment; and defendant’s mother was not even on the premises; thus, when defendant shot the victim, neither he nor his mother was in any imminent danger. Wells v. State, 233 So.3d 279, 2017 Miss. LEXIS 409 (Miss. 2017).

Defendant was properly convicted of depraved-heart murder because the evidence was sufficient for a rational jury to find beyond a reasonable doubt that she shot the victim with a depraved heart to kill him and not in self-defense; the victim was unarmed at the time defendant shot and killed him, and defendant admitted she shot the victim at least three times. Swanagan v. State, 229 So.3d 698, 2017 Miss. LEXIS 191 (Miss. 2017).

Defendant was not entitled to a new trial because the jury did not find that defendant acted in self-defense or that the Castle Doctrine applied in that, although defendant did not have a duty to retreat before using defensive force, as defendant was in defendant’s auto shop and was not the immediate provoker and aggressor, the victim, did not enter the garage unlawfully or forcibly. Furthermore, it was for the jury to determine whether the victim unlawfully or forcibly entered defendant’s inner office, where the shooting occurred. Flynt v. State, 183 So.3d 1, 2015 Miss. LEXIS 532 (Miss. 2015).

Evidence supported defendant’s conviction for deliberate-design murder because defendant initiated an altercation when an employee of a power utility company came to defendant’s home to turn off the power, used a deadly weapon to shoot and kill the employee, and hid the employee’s body. Defendant failed to show that defendant acted in self-defense as defendant acted without any threat or provocation from the unarmed employee. Davis v. State, 165 So.3d 537, 2015 Miss. App. LEXIS 297 (Miss. Ct. App. 2015).

Evidence was sufficient to support a conviction for deliberate design murder where the State put on evidence that placed a reasonable doubt regarding defendant’s self-defense claim; there were no signs of a struggle or altercation, other than the shooting, and defendant shot the victim four times in the back. Davis v. State, 158 So.3d 1190, 2015 Miss. App. LEXIS 63 (Miss. Ct. App. 2015).

Circuit court properly denied defendant’s motion for a judgment notwithstanding the verdict based on justifiable homicide where various witnesses for the State testified that the victim was not known to carry a gun, that they saw no weapon with him at the Texaco, and that the victim appeared to be the one defending himself during the altercation, and the jury further heard testimony from the State’s witnesses that defendant behaved aggressively toward the victim, hitting him and eventually firing two shots at him. Tillis v. State, 176 So.3d 37, 2014 Miss. App. LEXIS 446 (Miss. Ct. App. 2014), cert. denied, 178 So.3d 333, 2015 Miss. LEXIS 528 (Miss. 2015).

Defendant was not entitled to the castle-doctrine presumption on his claim of self-defense in a prosecution in which he was convicted of manslaughter because there was conflicting evidence as to whether the victim’s daughter allowed the victim into her home or not. Hammond v. State, 119 So.3d 1074, 2013 Miss. App. LEXIS 29 (Miss. Ct. App.), cert. denied, 119 So.3d 328, 2013 Miss. LEXIS 430 (Miss. 2013).

Evidence was sufficient to convict defendant of simple assault and the verdict was not against the weight of the evidence because defendant presented no evidence that he feared imminent death or great bodily harm to himself or to his daughter justifying the use of force; defendant pinned the victim in the door of his vehicle; and the victim testified that she called out in pain several times and had bruises as a result of the incident. Matthews v. City of Madison, 143 So.3d 579, 2013 Miss. App. LEXIS 611 (Miss. Ct. App. 2013), aff'd, 143 So.3d 571, 2014 Miss. LEXIS 373 (Miss. 2014).

There was sufficient evidence to convict defendant of manslaughter in violation of Miss. Code Ann. §97-3-35 because the State put on evidence tending to show that defendant had a deliberate design to kill the victim, and there was corroborated testimony that the victim was neither confronting nor threatening defendant at the time he was shot. Vaughn v. State, 111 So.3d 1289, 2013 Miss. App. LEXIS 225 (Miss. Ct. App. 2013).

Evidence supported defendant’s convictions for two counts of murder, under Miss. Code Ann. §97-3-19, including that defendant was not acting in necessary self-defense, because two eyewitnesses testified that defendant shot the victims in a bar and a forensic pathologist testified as to the nature of the victims’ wounds. Copple v. State, 117 So.3d 651, 2013 Miss. App. LEXIS 421 (Miss. Ct. App. 2013).

Defendant’s manslaughter conviction, pursuant to Miss. Code. Ann. §97-3-35, was supported by sufficient evidence because both versions of the shooting in evidence at trial supported the conclusion that defendant’s use of deadly force was either unnecessary or premature and was not exercised in necessary self-defense, as defined in Miss. Code Ann. §97-3-15(f). Pruitt v. State, 28 So.3d 585, 2010 Miss. LEXIS 44 (Miss. 2010).

Verdict of murder under Miss. Code Ann. §97-3-19 was not against the overwhelming weight of the evidence as the testimony presented a factual dispute for the jury’s resolution and the jury found certain testimony to be credible and defendant’s attempts to establish a self-defense theory to be contradictory; although defendant cited to Miss. Code Ann. §97-3-31, which provided for a manslaughter conviction when one killed another while resisting a felony, there was conflicting testimony as to whether the victim was attempting to commit a felony, and although defendant also cited to Miss. Code Ann. §97-3-35 and claimed the evidence supported a heat of passion manslaughter conviction, there was no evidence that defendant was acting in a state of violent and uncontrollable rage and he only attempted to show that he was afraid of the victim and acted in self-defense. Ray v. State, 27 So.3d 416, 2009 Miss. App. LEXIS 496 (Miss. Ct. App. 2009), cert. denied, 27 So.3d 404, 2010 Miss. LEXIS 61 (Miss. 2010).

Defendant’s conviction for manslaughter was proper because it was up to the jury to determine whether defendant acted reasonably in necessary self-defense when he shot the victim in the head. The jury could have determined that defendant did not act in necessary self-defense because, at that time, the victim was on the floor and did not present a reasonable threat to defendant’s life. Rogers v. State, 994 So. 2d 792, 2008 Miss. App. LEXIS 170 (Miss. Ct. App.), cert. denied, 998 So. 2d 1010, 2008 Miss. LEXIS 668 (Miss. 2008).

Two defendants’ convictions for depraved-heart murder were appropriate because there was sufficient evidence that the first defendant acted without authority of law since there was testimony that the victim made no physical or verbal threats against the second defendant, Miss. Code Ann. §97-3-15(1)(f); witnesses also did not see the victim brandish his knife against that defendant. McDowell v. State, 984 So. 2d 1003, 2007 Miss. App. LEXIS 669 (Miss. Ct. App. 2007), cert. denied, 984 So. 2d 277, 2008 Miss. LEXIS 328 (Miss. 2008).

Sufficient evidence was adduced at trial to support a finding that defendant’s murder of the victim was not done in self-defense, even though defendant testified that the victim had previously choked defendant, to the point that defendant felt that he was going to die; the evidence was sufficient for a reasonable jury to find defendant guilty of manslaughter. Harris v. State, 937 So. 2d 474, 2006 Miss. App. LEXIS 644 (Miss. Ct. App. 2006).

Defendant’s murder conviction was proper where defendant’s argument that a reasonable jury could only have found that he acted in self-defense was without merit because the evidence was uncontradicted that the victim was in fact unarmed, and no one other than defendant saw the victim reach for a weapon before defendant shot him. Ables v. State, 850 So. 2d 172, 2003 Miss. App. LEXIS 635 (Miss. Ct. App. 2003).

Evidence supported the jury’s finding of insufficient evidence of self-defense, notwithstanding that the victim had very recently beaten the defendant (his girlfriend) and that he was advancing on her at the time she shot him, where the defendant had left the scene of the altercation, armed herself, and then returned to confront the victim. Wade v. State, 724 So. 2d 1007, 1998 Miss. App. LEXIS 1043 (Miss. Ct. App. 1998), aff'd, 748 So. 2d 771, 1999 Miss. LEXIS 328 (Miss. 1999).

During a murder prosecution arising from the shooting death of the defendant’s wife, the trial erred when it excluded evidence of the wife’s prior threats with a butcher knife which she had made toward the defendant 2 weeks before her death, where the defendant claimed self-defense, since the evidence was relevant on the issue of the defendant’s state of mind at the time of the shooting and on the issue of whether the victim may have been the initial aggressor. Heidel v. State, 587 So. 2d 835, 1991 Miss. LEXIS 646 (Miss. 1991).

Prosecuting examination may examine defendant in manslaughter prosecution who raises defenses of justifiable homicide by reason of self-defense as well as excusable homicide by reason of accident or misfortune regarding why defendant did not back off or flee when deceased pulled knife on defendant where jury is specifically instructed that defendant is under no duty to flee but rather has right to stand ground. Burge v. State, 472 So. 2d 392, 1985 Miss. LEXIS 2129 (Miss. 1985).

Defendant’s testimony on events at scene of killing is not such persuasive evidence of self-defense as to preclude jury verdict of anything but not guilty where evidence shows that defendant entered scene of crime with loaded gun, no weapon was found on deceased, and defendant’s version of events is disputed by other witnesses and photographs. Kelly v. State, 463 So. 2d 1070, 1985 Miss. LEXIS 1878 (Miss. 1985).

Even if the deceased had been physically capable of inflicting serious bodily injuries upon the defendant with his hands and his feet, such fact alone was inadequate to justify the defendant’s use of a deadly weapon in a homicide case. Stennis v. State, 234 So. 2d 611, 1970 Miss. LEXIS 1411 (Miss. 1970).

Accused’s uncontradicted testimony that after he was awakened in the early morning hours by the noise of someone breaking into his home, he seized his gun and went to the back of the house where he saw the form of a man, and upon inquiring who it was, the man cursed him and continued to advance, so that accused, apprehending that the man was about to do him some great bodily harm, then fired in defense of his own life, being reasonable, under the circumstances, it must be accepted as true, and accused was entitled to a peremptory instruction. Lee v. State, 232 Miss. 717, 100 So. 2d 358, 1958 Miss. LEXIS 320 (Miss. 1958).

Evidence that, at the time the accused shot and killed the deceased, the deceased was pursuing the accused with pistol in hand and threatening to kill him, failed to sustain a manslaughter conviction. Pickens v. State, 229 Miss. 409, 90 So. 2d 852, 1956 Miss. LEXIS 619 (Miss. 1956).

Defendant is not required to prove that he acted in justifiable self-defense, but only that he raise a reasonable doubt of his guilt of the charge against him. Bell v. State, 207 Miss. 518, 42 So. 2d 728, 1949 Miss. LEXIS 360 (Miss. 1949).

In homicide prosecution defendant’s explanation that he acted in self-defense, not contradicted directly, or by fair inference, must be accepted as true. Bell v. State, 207 Miss. 518, 42 So. 2d 728, 1949 Miss. LEXIS 360 (Miss. 1949).

Evidence that accused left his employment because of threats of plantation manager against his life and because of his terror of such manager who habitually carried a pistol, that accused thereafter kept out of manager’s way until the day preceding the homicide, when manager was chasing and searching for accused during that day and night, finally coming upon accused in a house where accused had sought refuge, and accused, finding he could not escape, shot and killed the manager, although manager had not drawn his pistol, constituted circumstances justifying accused in reasonably believing he actually had no mode of escape except to take the life of the manager and substantiated his plea of self-defense. Bell v. State, 207 Miss. 518, 42 So. 2d 728, 1949 Miss. LEXIS 360 (Miss. 1949).

When defendant is the only eyewitness to homicide, her version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by creditable witnesses for state, or by physical facts or by facts of common knowledge, and when such evidence shows that the defendant acted upon what then reasonably appeared to be necessary for protection of her life, verdict should be directed in favor of defendant. Lomax v. State, 205 Miss. 635, 39 So. 2d 267, 1949 Miss. LEXIS 453 (Miss. 1949).

Accused in homicide case, in order to establish that she acted as reasonably appeared to be necessary for protection of her life, need not show that deceased had weapon in her hand, or in sight, or said anything, at time shot was fired, where deceased had previously threatened to shoot defendant, had displayed pistol in her pocketbook, had threatened to beat defendant up with broom handle, and, immediately prior to shooting, deceased had been driving with defendant’s husband, and on getting out of car approached defendant as defendant backed away, deceased trying to open her purse as she advanced. Lomax v. State, 205 Miss. 635, 39 So. 2d 267, 1949 Miss. LEXIS 453 (Miss. 1949).

Testimony that deceased had the reputation of being dangerous, quarrelsome, and abusive when intoxicated was properly excluded in murder prosecution, where self-defense is not pleaded and neither the confession of defendant nor his testimony made the issue relevant. Pinter v. State, 203 Miss. 344, 34 So. 2d 723, 1948 Miss. LEXIS 275 (Miss. 1948).

The jury had the right in a murder prosecution to reject defendant’s testimony that he killed deceased in self-defense, where the proof of the state and the evidence of the only witness for the defendant, except that given by himself, showed that the killing was deliberate murder. Flowers v. State, 29 So. 2d 653 (Miss. 1947).

Where a defendant is claiming self-defense and is the only eyewitness to the homicide, the jury may consider all facts and circumstances bearing on the manner in which the homicide occurred and need not accept the defendant’s version as true. Herrin v. State, 201 Miss. 595, 29 So. 2d 452, 1947 Miss. LEXIS 424 (Miss. 1947).

Exclusion of corroboratory and cumulative evidence indicative of reasonable apprehension of imminent danger and the practical admission of evidence only as to things done at the time and scene of the homicide was reversible error. Eaton v. State, 200 Miss. 729, 28 So. 2d 230, 1946 Miss. LEXIS 341 (Miss. 1946).

Facts must be sufficient to justify belief that killing is reasonably necessary to prevent felonious killing of another before killing justified. McGehee v. State, 138 Miss. 822, 104 So. 150, 1925 Miss. LEXIS 100 (Miss. 1925).

Aggression is doubtful where evidence thereon is conflicting. Mott v. State, 123 Miss. 729, 86 So. 514, 1920 Miss. LEXIS 75 (Miss. 1920).

6. —Question for jury.

Although defendant argued that defendant shot the victim in self-defense, the jury rejected defendant’s defense theories—including the castle doctrine—because while defendant testified that the victim was in the doorway to defendant’s home and threatening defendant when defendant shot the victim, and that the victim went backwards and eventually fell down outside on the opposite side of the sidewalk, another witness testified and there was other evidence that defendant shot the victim while the victim was lying wounded on the ground. Bryant v. State, 232 So.3d 174, 2017 Miss. App. LEXIS 738 (Miss. Ct. App. 2017).

State did not present insufficient evidence to overcome defendant’s theory of self-defense because the jury rejected the self-defense theory and found that the State’s account of the events was more credible, as was its prerogative; allowing the jury’s verdict to stand would not sanction an unconscionable injustice. Newell v. State, 175 So.3d 1260, 2015 Miss. LEXIS 505 (Miss. 2015).

Murder conviction was not against the overwhelming weight of the evidence because the evidence against defendant included his admission to shooting the victim, the gunshots striking the victim from behind, the evidence conveying a scene without a struggle, and the statements from the victim naming defendant as the shooter. The question of a self-defense claim fell under the purview of the jury as fact-finders. Davis v. State, 158 So.3d 1190, 2015 Miss. App. LEXIS 63 (Miss. Ct. App. 2015).

It is for jury to decide whether slaying constitutes manslaughter or justifiable homicide by reason of self-defense or excusable homicide by reason of accident or misfortune where evidence shows that during course of argument, deceased displayed knife, defendant pulled gun, pointed it at deceased and cocked it, and during ensuing scuffle, gun discharged, striking deceased. Burge v. State, 472 So. 2d 392, 1985 Miss. LEXIS 2129 (Miss. 1985).

If to be sodomized unwillingly is to “suffer great bodily harm” so as to bring a subsequent killing of the assailant within the meaning of the justifiable homicide statute, the question of the reasonableness of the force used to repel the sexual attack would then become a jury issue. Johnson v. State, 346 So. 2d 927, 1977 Miss. LEXIS 2552 (Miss. 1977), but see Douglas v. State, 525 So. 2d 1312, 1988 Miss. LEXIS 216 (Miss. 1988).

Where a number of extenuating circumstances in favor of the accused, who was convicted of manslaughter, was disclosed by the record, the ends of justice would be better served by reversing and remanding the case and permitting another jury to pass on the issue as to whether or not the accused had good cause to believe, and did believe, in view of the disparity in size of the two men, that he was in either real or apparent danger of great bodily harm at the hands of the deceased at the time he shot him. Folks v. State, 230 Miss. 217, 92 So. 2d 461, 1957 Miss. LEXIS 361 (Miss. 1957).

Where three witnesses declared that the deceased had no knife and four witnesses affirmed that he did have a knife with which he was chasing the defendant’s brother, it was for the jury to determine the veracity of witnesses. Crawford v. State, 54 So. 2d 230 (Miss. 1951).

In murder prosecution the question whether defendant shot the deceased in self-defense was for the jury. Goff v. State, 49 So. 2d 238 (Miss. 1950).

Question whether defendant killed victim in self-defense is one of fact for the jury to determine. Spivey v. State, 47 So. 2d 855 (Miss. 1950).

Issues in homicide prosecution of justification as well as of extent of force employed were for the jury, where the fatal wound was inflicted while defendant was undertaking to arrest the victim and defendant sought to justify the act as in necessary self-defense. Howard v. State, 18 So. 2d 148 (Miss. 1944).

Whether accused, killing a visitor at her home in ejecting him therefrom after forbidding him to re-enter, used more force than reasonably appeared to be necessary for that purpose, or whether she killed decedent in what reasonably appeared to be in her necessary self-defense, were questions for the jury to determine. Bangren v. State, 196 Miss. 887, 17 So. 2d 599, 1944 Miss. LEXIS 264 (Miss. 1944), overruled, Ferrell v. State, 733 So. 2d 788, 1999 Miss. LEXIS 87 (Miss. 1999).

7. Instructions; generally.

Defendant’s challenge to the castle doctrine jury instruction failed because the judge gave the instruction defendant asked for and the instruction he sought was unsupported by the evidence that did not show the victim ever reached for the back door of the car where the children allegedly were. Bernard v. State, — So.3d —, 2019 Miss. LEXIS 403 (Miss. Dec. 5, 2019).

In a manslaughter case, the trial court committed reversible error in giving a castle-doctrine jury instruction favoring the victim because a castle-doctrine instruction had never been given to a victim regarding the mandatory rebuttable presumption that a person was entitled to use whatever force was necessary to meet or repel an attack from another person, and such an instruction was patently inappropriate as the statute clearly indicated that the rebuttable presumption was granted to defendant, not the victim; and a reasonable juror could have interpreted the challenged instruction to create a presumption that lessened the State’s burden of proof and required rebuttal evidence from defendant to overcome the presumption. Husband v. State, 204 So.3d 353, 2016 Miss. App. LEXIS 472 (Miss. Ct. App. 2016).

In murder prosecution, state is entitled, upon request, to instruction submitting lessor included offense of manslaughter committed in heat of passion to jury even though heat of passion is affirmative element of manslaughter not present in murder. Cook v. State, 467 So. 2d 203, 1985 Miss. LEXIS 1974 (Miss. 1985).

While a manslaughter instruction should not be given in a case of murder or complete justification, such instruction is not reversible error. Vassar v. State, 200 Miss. 412, 27 So. 2d 541, 1946 Miss. LEXIS 303 (Miss. 1946).

Instruction that every killing of a human being without authority of law is either murder or manslaughter, murder when done with deliberate design to effect death, and manslaughter when done in heat of passion without malice and without any premeditation, did not constitute error, either as not correctly stating the law or as depriving defendant of her plea of necessary self-defense. Wiggins v. State, 199 Miss. 114, 23 So. 2d 691, 1945 Miss. LEXIS 274 (Miss. 1945).

Concluding an instruction in murder prosecution authorizing conviction if defendant was in no real or apparent danger of losing his own life or suffering great bodily injury, with the phrase “this is true regardless of every other fact or circumstance in the case,” did not constitute reversible error, where considerable irrelevant testimony concerning the so-called “unwritten law” was admitted prejudicial to the prosecution, and the concluding phrase probably disabused the minds of the jurors of its influence. Kilgore v. State, 198 Miss. 816, 23 So. 2d 690, 1945 Miss. LEXIS 252 (Miss. 1945).

Instruction in manslaughter prosecution that the jury should not give the defendant the benefit of mere timidity or needless fear, but that she must reasonably have believed herself in danger of death or great bodily harm, satisfactorily contracted capricious or groundless fear with reasonable apprehension, and was not prejudicial. Bangren v. State, 198 Miss. 359, 22 So. 2d 360, 1945 Miss. LEXIS 206 (Miss. 1945).

Instruction authorizing jury to disregard testimony, which did not consider whether such testimony was immaterial, collateral, incompetent, or irrelevant, was error. Boykin v. State, 86 Miss. 481, 38 So. 725, 1905 Miss. LEXIS 76 (Miss. 1905).

Error to grant instructions for state without first submitting them to defendant’s attorney. Boykin v. State, 86 Miss. 481, 38 So. 725, 1905 Miss. LEXIS 76 (Miss. 1905).

Error for court to charge that if defendant was cutting witness with a knife, which was a deadly weapon, not in his necessary self-defense, then deceased was entitled to attack defendant while he was so cutting witness with a knife, even to taking his life. Boykin v. State, 86 Miss. 481, 38 So. 725, 1905 Miss. LEXIS 76 (Miss. 1905).

8. —Self-defense.

Defense counsel was not ineffective for failing to request a castle doctrine jury instruction because although defendant owned the home, she had allowed the victim to live with her for over a year and it was his residence as much as hers. Defendant had not sought shelter in her home and was not fighting off an assault by an intruder, but rather she had a dispute there with someone she had allowed to live with her. Byrd v. State, — So.3d —, 2019 Miss. App. LEXIS 269 (Miss. Ct. App. June 11, 2019).

Trial court did not err in refusing defendant’s castle doctrine jury instruction because there was no evidence that the victim unlawfully tried to enter defendant’s hotel room, and thus the castle doctrine did not apply. Reid v. State, — So.3d —, 2019 Miss. App. LEXIS 613 (Miss. Ct. App. Dec. 17, 2019).

Trial court did not abuse its discretion in responding to the jury’s question as to the definition of depraved heart because the instructions it provided demonstrated the proper rules of law and were not erroneous, and the supplemental instruction was a proper statement of the law. the jury received three separate instructions on self-defense. Swanagan v. State, 229 So.3d 698, 2017 Miss. LEXIS 191 (Miss. 2017).

Trial court did not abuse its discretion by denying defendant’s proffered “stand your ground” instruction because the evidence in the record did not point to an opportunity to retreat, and other instructions adequately covered the general rules of law pertaining to self-defense. Shaheed v. State, 205 So.3d 1105, 2016 Miss. App. LEXIS 806 (Miss. Ct. App. 2016).

There was sufficient evidence to support a conviction for manslaughter; the jury was given instructions on self-defense, the duty to retreat, and manslaughter. Defendant’s assertion of self-defense did not occur until after her arrest, and no other party heard the threats that the victim allegedly made prior to the shooting. Knight v. State, 157 So.3d 839, 2015 Miss. App. LEXIS 35 (Miss. Ct. App. 2015).

Because defendant was engaged in unlawful activities, including the carrying of a gun by a person under 18, the purchase of tobacco by a person under 18, and, possibly, stealing gas from the victim’s store, the castle doctrine was inapplicable and counsel could be ineffective for failing to request a castle-doctrine instruction. Beal v. State, 225 So.3d 1276, 2016 Miss. App. LEXIS 462 (Miss. Ct. App. 2016), cert. denied, 222 So.3d 311, 2017 Miss. LEXIS 285 (Miss. 2017).

Defendant was denied her right to have the jury properly instructed on her self-defense claim because enough evidence was presented at defendant’s trial to at least raise a question as to whether she was entitled to the “Castle Doctrine” statutory presumption; a question arose to whether the victim was trespassing when she crossed the street, came onto the property surrounding defendant’s residence, and prevented defendant from leaving by blocking her access to her vehicle. White v. State, 127 So.3d 170, 2013 Miss. LEXIS 577 (Miss. 2013).

Defendant’s murder conviction was appropriate because the trial court did not err in refusing to give a self-defense instruction under Miss. Code Ann. §97-3-15(1)(f) since there was no testimony introduced that defendant through that he was in imminent danger. Whittington v. State, 49 So.3d 107, 2010 Miss. App. LEXIS 182 (Miss. Ct. App.), cert. denied, 49 So.3d 1139, 2010 Miss. LEXIS 636 (Miss. 2010).

Court rejected as without merit defendant’s claim that the trial court erred in failing to grant his motion for a judgment notwithstanding the verdict, given that the jury was instructed to consider whether the victim’s killing was murder, manslaughter, or committed in self-defense and the jury had sufficient evidence to convict defendant of murder; although defendant argued that the facts supported either excusable or justifiable homicide, the facts were conflicting and created a jury question, as testimony and physical evidence contradicted defendant’s testimony that the victim backed him up steps and defendant having left the scene immediately after the stabbing created the impression that he knew the victim was no longer a threat. Ray v. State, 27 So.3d 416, 2009 Miss. App. LEXIS 496 (Miss. Ct. App. 2009), cert. denied, 27 So.3d 404, 2010 Miss. LEXIS 61 (Miss. 2010).

Court committed reversible error in instructing the jury to find the defendant guilty of manslaughter if it found that he killed the victim while resisting the victim’s unlawful trespass; this instruction prevented the jury from returning a finding of justifiable homicide and left it with the choice of either murder or manslaughter. Ferrell v. State, 733 So. 2d 788, 1999 Miss. LEXIS 87 (Miss. 1999).

In absence of any other instruction that presented defendant’s theory of defense to jury, trial court improperly failed to place defendant’s proffered instruction, on self-defense by use of deadly weapon against larger, unarmed person, in proper form, in light of evidence which supported claim of justification. Manuel v. State, 667 So. 2d 590, 1995 Miss. LEXIS 591 (Miss. 1995).

Trial court properly refuses self defense instruction in homicide case in which uncontroverted testimony is that victim was asleep and had been asleep approximately 30 minutes at time victim was shot and killed. Merrill v. State, 482 So. 2d 1147, 1986 Miss. LEXIS 2369 (Miss. 1986).

Murder defendant is not entitled to have jury instructed peremptorily that he should be found not guilty where, although evidence shows that person shot by defendant struck him in head with beer bottle before defendant lifted so much as finger, following receipt of beer bottle blow, defendant did nothing but just stood at bar for 5 or 10 minutes, person shot went to cash register and started counting money, and at point when person had ceased to be aggressor, defendant shot and killed person. Gavin v. State, 473 So. 2d 952, 1985 Miss. LEXIS 2163 (Miss. 1985).

Self-defense instruction which states that party acting upon mere fear, apprehension or belief, however sincerely entertained acts at own peril in taking life is improper and constitutes reversible prejudicial error where case is close factually and instruction has previously been condemned by Supreme Court of Mississippi number of times. Flowers v. State, 473 So. 2d 164, 1985 Miss. LEXIS 2140 (Miss. 1985).

Defendant pleading self defense to murder charge is entitled to instruction which in substance advises jury that so long as defendant was in place where he had right to be and was neither immediate provoker or aggressor, he was not required to flee on pain of forfeiting defense of self defense. Cook v. State, 467 So. 2d 203, 1985 Miss. LEXIS 1974 (Miss. 1985).

The trial court’s instruction in a murder prosecution resulting in a conviction of manslaughter, that defendant had a right to kill the deceased if it reasonably appeared that he was undertaking to force entrance into defendant’s house with the design to do defendant great personal injury, adequately set forth defendant’s right under this section to protect her domicile from unlawful entry. Hull v. State, 350 So. 2d 60, 1977 Miss. LEXIS 2213 (Miss. 1977).

In a prosecution for murder, the instruction to the jury was erroneous where it failed to inform the jury that there are instances in which a deliberate design to kill may exist at the moment the fatal blow was struck and yet the homicide may be justifiable or excusable, and therefore required the jury to convict the defendant of murder if it found premeditation or deliberate design to kill even though the killing might have been justifiable by reason of self-defense. Pittman v. State, 297 So. 2d 888, 1974 Miss. LEXIS 1544 (Miss. 1974).

In a prosecution for murder, an instruction to the jury that even if the deceased attempted to have unnatural intercourse with the defendant, but the danger of accomplishment of the crime by the deceased was over and at a time when such danger was not imminent or impending the defendant tied and gagged the deceased, and if the jury finds robbery, then the crime was murder, was proper in presenting defendant’s theory of self-defense and the state’s theory of felony murder. Burns v. State, 228 Miss. 254, 87 So. 2d 681, 1956 Miss. LEXIS 510 (Miss. 1956).

Instruction that if jury believed beyond a reasonable doubt that defendant killed victim at a time when he was in no immediate danger, real or apparent, of losing his life or suffering some great bodily harm at the hands of victim, then defendant is guilty, etc., was not erroneous as excluding from consideration of jury that if defendant reasonably believed or had reasonable cause to believe that he was in danger of losing his life or suffering some great bodily harm at the hands of deceased he had a right to take deceased’s life in defending himself even though he might have been in no actual danger whatever, especially in view of other instructions embodying the principal contended for by defendant. Johnson v. State, 46 So. 2d 924 (Miss. 1950).

It is not error to grant to state manslaughter instruction, it being contended by defense that accused was either guilty of murder or was justified in committing homicide in necessary self-defense, when under all of evidence accused cannot be properly convicted of greater offense than manslaughter and even that offense is not satisfactorily proved beyond every reasonable doubt. Leflore v. State, 44 So. 2d 393 (Miss. 1950).

Refusal of court to grant peremptory instruction to find defendant not guilty is not error where defendant’s testimony that he was in danger of death or great bodily harm at hands of deceased and that it was necessary for him to strike in self-defense was contradicted by undisputed evidence that killing occurred at crap table, with table and crowd of people between accused and deceased, and defendant advanced on deceased around table and struck at him by reaching around another person. Robinson v. State, 205 Miss. 281, 38 So. 2d 723, 1949 Miss. LEXIS 430 (Miss. 1949).

That an elderly father in ill health who claimed to have shot his robust son as he threateningly advanced upon the father in his bed was denied his defense of self-defense by an instruction that the homicide could not be excused by the mere fact that the defendant was a smaller man than the deceased, of less powerful build and proportions and of greater years, and was assaulted by the deceased with his fists at the time of the slaying, constituted reversible error. Bailey v. State, 202 Miss. 221, 31 So. 2d 123, 1947 Miss. LEXIS 262 (Miss. 1947).

The burden of proof is not shifted to the defendant by an instruction that in order to justify a homicide on the plea of self-defense there must be something shown in the conduct of the deceased indicating a present intention to kill or to do some great personal injury to the slayer, and imminent danger of such intention being accomplished. Dobbs v. State, 200 Miss. 595, 27 So. 2d 551, 29 So. 2d 84, 1946 Miss. LEXIS 330, 1947 Miss. LEXIS 354 (Miss. 1946), cert. denied, 331 U.S. 787, 67 S. Ct. 1318, 91 L. Ed. 1817, 1947 U.S. LEXIS 2295 (U.S. 1947), overruled in part, Flowers v. State, 473 So. 2d 164, 1985 Miss. LEXIS 2140 (Miss. 1985).

Omission from state’s instruction defining justifiable self-defense that danger of death or great bodily harm may be either real or reasonably apparent, constituted reversible error where under state’s proof defendant was guilty of murder whereas under her proof jury could have found that defendant acted in justifiable self-defense, since in such a situation it is important that the state’s instruction be technically correct. Gooch v. State, 199 Miss. 280, 24 So. 2d 736, 1946 Miss. LEXIS 194 (Miss. 1946).

Instruction that “to justify a homicide on the plea of self-defense there must be something shown in the conduct of the deceased indicating a present intention to kill, or to do some great personal injury to the slayer, and immediate danger of such intention being accomplished,” was not erroneous, either on the ground that the word “apparent” should have preceded the word “danger,” even though such would have been technically correct, where rest of instruction informed jury that this danger might be actual or apparent, or on ground that the word “imminent” should have been used instead of the word “immediate,” although the former word, which is used in this section [Code 1942, § 2218], would have been preferable. Holmes v. State, 199 Miss. 137, 24 So. 2d 90, 1945 Miss. LEXIS 277 (Miss. 1945), overruled, Flowers v. State, 473 So. 2d 164, 1985 Miss. LEXIS 2140 (Miss. 1985).

In a prosecution for homicide, in which the defendant testified that the acts resulting in the death of the decedent had been done at a time when the decedent was attempting to impose his attentions upon the defendant, over her protest and against her will, in such manner as to commit a statutory offense against her person, an instruction to the jury, which would seem to require that the jury should believe that the defendant entertained a reasonable apprehension that he intended to take her life, or to do her great bodily harm, in the sense of endangering her life, before the jury would be warranted in acquitting her, entirely leaving out of consideration the right to protect her person against the commission of the threatened felony testified to, was erroneous. Hodges v. State, 192 Miss. 322, 6 So. 2d 123 (Miss. 1942).

Instruction on law of self-defense held erroneous as shifting burden of proof. Reddix v. State, 134 Miss. 393, 98 So. 850, 1924 Miss. LEXIS 270 (Miss. 1924).

9. —Defense of others.

Failure to give defendant’s jury instruction on self-defense that included a defense-of-others rationale was reversible error as the instruction correctly stated the law regarding how a jury should have interpreted his actions and would have extended defendant’s claim to defense of his infant daughter. The self-defense instructions given did not cover those points. Maye v. State, 49 So.3d 1124, 2010 Miss. LEXIS 622 (Miss. 2010).

Defendant’s manslaughter conviction was reversed for failure to instruct the jury that it should presume defendant used defensive force despite exiting his vehicle before shooting the victim. Threats from the victim that led to the shooting that occurred while defendant was occupying his vehicle satisfied Miss. Code Ann. §97-3-15(3) (Rev. 2006) requirements. Newell v. State, 49 So.3d 66, 2010 Miss. LEXIS 633 (Miss. 2010).

An instruction regarding defense of another was sufficient, notwithstanding that the instruction did not precisely follow the language of subsection (1)(f), as there was no evidence regarding a felony other than an aggravated assault and, therefore, it was not error to eliminate the alternative felony language of the statute. Moore v. State, 776 So. 2d 717, 2000 Miss. App. LEXIS 428 (Miss. Ct. App. 2000).

Though the statute casts the killing of a man in the necessary defense of another in terms of justification, this license does not justify shooting wildly and blindly into a crowd of people, some of whom are mere bystanders; such indiscriminate use of deadly force cannot be thought to be a reasonable use. Moore v. State, 776 So. 2d 717, 2000 Miss. App. LEXIS 428 (Miss. Ct. App. 2000).

Evidence was insufficient in a murder prosecution to justify an instruction to the jury with regard to defense of others where there was no evidence that the defendant drew his gun in an attempt to break up the fight between the defendant and another. Robinson v. State, 758 So. 2d 480, 2000 Miss. App. LEXIS 162 (Miss. Ct. App. 2000).

In a prosecution for murder arising out of the killing of a man who was allegedly attacking the defendant’s wife, the trial court properly refused the defendant’s request for a directed verdict of acquittal under this section where the evidence was in conflict as to whether the victim had actually been attacking the defendant’s wife; however, where the evidence did not rise to that high degree which would justify a jury in finding the defendant guilty of murder beyond a reasonable doubt, his motion for a directed verdict as to the charge of murder should have been sustained, leaving only the charge of manslaughter under §97-3-31 to be considered by the jury. Edge v. State, 393 So. 2d 1337, 1981 Miss. LEXIS 1926 (Miss. 1981).

The trial court did not commit reversible error in refusing to instruct that if accused shot deceased in the lawful defense of his sister-in-law, wife of deceased, the jury should acquit him, in view of insufficient evidence showing that the sister-in-law was in any real or apparent danger of losing her life or sustaining great bodily harm at the hands of the deceased at the time of the killing. Folks v. State, 230 Miss. 217, 92 So. 2d 461, 1957 Miss. LEXIS 361 (Miss. 1957).

Where the accused shot the deceased who was shooting at accused’s unarmed brother, while the latter was seated at a booth in a dining room of a cafe and it appeared that the brother had made no hostile demonstration at the decedent, the court should have given a peremptory instruction as requested by the defendant. Newman v. State, 222 Miss. 660, 77 So. 2d 282, 1955 Miss. LEXIS 651 (Miss. 1955).

10. —Defense of property.

Trial court did not abuse its discretion in refusing a jury instruction based on the “castle doctrine” because defendant was not in the immediate premises of a dwelling when he shot his girlfriend’s ex-boyfriend; there was no evidence that the ex-boyfriend unlawfully and forcibly entered the girlfriend’s dwelling or its immediate premises because the girlfriend voluntarily went outside to speak with him, and he voluntarily went with her. Shaheed v. State, 205 So.3d 1105, 2016 Miss. App. LEXIS 806 (Miss. Ct. App. 2016).

Evidence established the elements of murder beyond a reasonable doubt; appellant armed himself with a baseball bat with the intent to cause serious bodily injury or death to the victim and struck an unarmed victim in the head three times with the baseball bat, the first of which would have knocked him unconscious and defenseless. These actions resulted in the victim’s death; the victim was not in the process of unlawfully and forcibly entering, or had unlawfully and forcibly entered the business when appellant began attacking the victim. Westbrook v. State, 29 So.3d 828, 2009 Miss. App. LEXIS 648 (Miss. Ct. App. 2009), cert. denied, 29 So.3d 774, 2010 Miss. LEXIS 124 (Miss. 2010), cert. denied, 562 U.S. 849, 131 S. Ct. 98, 178 L. Ed. 2d 62, 2010 U.S. LEXIS 5934 (U.S. 2010).

Giving instruction upon murder charge, where defendant’s explanation of killing as in defense of home was uncontradicted, held error. Bowen v. State, 164 Miss. 225, 144 So. 230, 1932 Miss. LEXIS 235 (Miss. 1932).

Where defendant sought to justify killing as in defense of home, instruction killing could not be justified unless to save defendant’s life, or prevent great bodily harm, or unless defendant was in immediate danger, held erroneous as ignoring defense of habitation. Bowen v. State, 164 Miss. 225, 144 So. 230, 1932 Miss. LEXIS 235 (Miss. 1932).

11. —Justification.

In defendant’s prosecution on a charge of manslaughter, the trial court improperly refused defendant’s instruction on justification that included a right to use deadly force: (1) to resist commission of a felony; (2) to protect his son; and (3) to protect himself from a group of men surrounding his car. The instruction correctly stated the law, had a foundation in evidence, and was not otherwise covered. Ford v. State, 52 So.3d 1245, 2011 Miss. App. LEXIS 53 (Miss. Ct. App. 2011).

RESEARCH REFERENCES

ALR.

Homicide: Extent of premises which may be defended without retreat under right of self-defense. 52 A.L.R.2d 1458.

Admissibility on behalf of accused in homicide case of evidence that killing was at victim’s request. 71 A.L.R.2d 617.

Relationship with assailant’s wife as provocation depriving defendant of right of self-defense. 9 A.L.R.3d 933.

Homicide: duty to retreat where assailant and assailed share the same living quarters. 26 A.L.R.3d 1296.

Private person’s authority, in making arrest for felony, to shoot or kill alleged felon. 32 A.L.R.3d 1078.

Homicide: duty to retreat as condition of self-defense when one is attacked at his office, or place of business or employment. 41 A.L.R.3d 584.

Homicide: modern status of rules as to burden and quantum of proof to show self-defense. 43 A.L.R.3d 221.

Unintentional killing of or injury to third person during attempted self-defense. 55 A.L.R.3d 620.

Withdrawal, after provocation of conflict, as reviving right of self-defense. 55 A.L.R.3d 1000.

What constitutes “imminently dangerous” act within homicide statute. 67 A.L.R.3d 900.

Modern Status: right of peace officer to use deadly force in attempting to arrest fleeing felon. 83 A.L.R.3d 174.

Homicide: duty to retreat where assailant is social guest on premises. 100 A.L.R.3d 532.

Accused’s right, in homicide case, to have jury instructed as to both unintentional shooting and self-defense. 15 A.L.R.4th 983.

Homicide: physician’s withdrawal of life supports from comatose patient. 47 A.L.R.4th 18.

Standard for determination of reasonableness of criminal defendant’s belief, for purposes of self-defense claim, that physical force is necessary-modern cases. 73 A.L.R.4th 993.

Homicide: Liability where death immediately results from treatment or mistreatment of injury inflicted by defendant. 50 A.L.R.5th 467.

Am. Jur.

40 Am. Jur. 2d, Homicide §§ 104 et seq.

5A Am. Jur. Pl & Pr Forms (Rev), Civil Rights, Forms 3.1, 5.1, 5.2 (pleadings in federal civil rights case involving use of deadly force in preventing escape of suspected felon).

2 Am. Jur. Trials, Investigating Particular Crimes §§ 40-57 (homicide).

7 Am. Jur. Trials, Homicide §§ 1 et seq.

40 Am. Jur. Trials 501, Forensic Pathology in Homicide Cases.

3 Am. Jur. Proof of Facts 2d, Withdrawal by Aggressor Reviving Right of Self-defense, §§ 9 et seq. (proof of withdrawal by aggressor – subsequent homicide committed in self-defense).

33 Am. Jur. Proof of Facts 2d 211, Privileged Use of Force in Self-Defense.

34 Am. Jur. Proof of Facts 2d 1, Criminal Law: The Battered Woman Defense.

38 Am. Jur. Proof of Facts 2d 731, Justified Use of Force in Defense of Private Property.

CJS.

40 C.J.S., Homicide §§ 150-152.

Law Reviews.

1983 Mississippi Supreme Court Review: Instruction on self-defense. 54 Miss L. J. 133, March, 1984.

Practice References.

Ronald L. Schoenberg, Criminal Law Deskbook (Matthew Bender).

§ 97-3-17. Homicide; excusable homicide.

The killing of any human being by the act, procurement, or omission of another shall be excusable:

When committed by accident and misfortune in doing any lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent;

When committed by accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation;

When committed upon any sudden combat, without undue advantage being taken, and without any dangerous weapon being used, and not done in a cruel or unusual manner.

HISTORY: Codes, Hutchinson’s 1848, ch. 64, art. 12, Title 3 (3); 1857, ch. 64, art. 169; 1871, § 2632; 1880, § 2879; 1892, § 1153; 1906, § 1231; Hemingway’s 1917, § 961; 1930, § 989; 1942, § 2219; Laws, 1985, ch. 380, eff from and after July 1, 1985.

Cross References —

Justifiable homicide, see §97-3-15.

JUDICIAL DECISIONS

1. In general.

2. Killing by accident or misfortune.

3. Killing in sudden combat.

4. Instructions to jury.

5. Applicability to assault.

6. Illustrative cases.

1. In general.

According to Miss. Code Ann. §97-3-17(a), a homicide may be excused when committed by accident and misfortune in doing any lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent. By extension, it follows that the same principles should apply to make an assault that does not result in death excusable under the same circumstances. Rogers v. State, 994 So. 2d 792, 2008 Miss. App. LEXIS 170 (Miss. Ct. App.), cert. denied, 998 So. 2d 1010, 2008 Miss. LEXIS 668 (Miss. 2008).

This section was inapplicable in a murder prosecution arising from the shooting death of a game warden where, at the time of the homicide, the defendant was in the process of headlighting deer, an unlawful activity under subsection (a) of this section, and was in possession of a firearm, a dangerous weapon under subsection (c) of this section, and a “heat of passion” defense was not argued by the defendant. Thibodeaux v. State, 652 So. 2d 153, 1995 Miss. LEXIS 134 (Miss. 1995).

A jury instruction in a murder prosecution, which listed sudden combat, as stated in subsection (c) of this section, as the only excuse for killing, but which completely failed to mention accident, misfortune, the heat of passion, or any sudden and sufficient provocation, as set out in (a) and (b) of that section, was reversible error, notwithstanding another instruction that was given, which did mention those factors, but which was in hopeless conflict with the first instruction. Scott v. State, 446 So. 2d 580, 1984 Miss. LEXIS 1627 (Miss. 1984).

Statute defining excusable homicide does not extend to homicide committed in the course of an unlawful act nor to homicide committed with a deadly weapon. Hailes v. State, 315 So. 2d 917, 1975 Miss. LEXIS 1701 (Miss. 1975).

This section [Code 1942 § 2219] does not excuse an offense in the commission of which a deadly weapon is used nor does it excuse the killing of a human being when done in the course of an unlawful act. Powell v. State, 279 So. 2d 161, 1973 Miss. LEXIS 1462 (Miss. 1973).

One may not repel the attack of an unarmed man, not his superior in physical power, by slaying him; for such attack does not furnish sufficient evidence to one of ordinary strength and courage to anticipate either that his life will be taken, or great bodily harm done, such as justifies the killing of his adversary. Reed v. State, 197 So. 2d 811, 1967 Miss. LEXIS 1544 (Miss. 1967).

Insulting words can never justify a homicide, unless they are of such nature as to cause defendant to believe he is threatened with grave, impending danger. Reed v. State, 197 So. 2d 811, 1967 Miss. LEXIS 1544 (Miss. 1967).

2. Killing by accident or misfortune.

Defendant’s manslaughter conviction was proper because the circuit court did not err when it refused a proffered instruction since, whether the victim was the initial aggressor was a question of fact for the jury to resolve; moreover, there was no evidence that the victim died as a result of a “tragic accident.” Defendant deliberately grabbed the victim’s wrist, intentionally struck the victim in the face three times, and it was only the victim’s subsequent death that defendant did not intend; such an intentional act followed by an unintended consequence could not serve as a basis for excusable homicide, accident, and misfortune. Booker v. State, 64 So.3d 988, 2010 Miss. App. LEXIS 329 (Miss. Ct. App. 2010), aff'd, 64 So.3d 965, 2011 Miss. LEXIS 316 (Miss. 2011).

Court rejected as without merit defendant’s claim that the trial court erred in failing to grant his motion for a judgment notwithstanding the verdict, given that the jury was instructed to consider whether the victim’s killing was murder, manslaughter, or committed in self-defense and the jury had sufficient evidence to convict defendant of murder; although defendant argued that the facts supported either excusable or justifiable homicide, the facts were conflicting and created a jury question, as testimony and physical evidence contradicted defendant’s testimony that the victim backed him up steps and defendant having left the scene immediately after the stabbing created the impression that he knew the victim was no longer a threat. Ray v. State, 27 So.3d 416, 2009 Miss. App. LEXIS 496 (Miss. Ct. App. 2009), cert. denied, 27 So.3d 404, 2010 Miss. LEXIS 61 (Miss. 2010).

Defendant’s motion for a judgment notwithstanding the verdict pursuant to the Weathersby rule was properly overruled by the trial court because the physical evidence and collective testimony of a police officer, a former friend of defendant, and a forensic pathologist, substantially contradicted defendant’s version of events. Testimony that the victim sat in a chair and faced away from defendant and that defendant stepped back and shot the victim created a jury issue as to whether defendant shot the victim by accident. Gilbert v. State, 934 So. 2d 330, 2006 Miss. App. LEXIS 241 (Miss. Ct. App. 2006).

Since defendant presented no evidence to support a defense of killing by accident or misfortune, the trial court did not err in not instructing the jury on that defense in his murder case. Montana v. State, 822 So. 2d 954, 2002 Miss. LEXIS 220 (Miss. 2002).

Trial court did not err in not giving defendant’s requested instruction on killing by accident or misfortune as that defense was precluded by the fact that defendant intentionally fired defendant’s gun within the city limits, which was an unlawful act, as commission of an unlawful act prevented a defendant from asserting such a defense. Montana v. State, 822 So. 2d 954, 2002 Miss. LEXIS 220 (Miss. 2002).

Since an intentional act could not fit within the doctrine of killing by accident or misfortune, and because all evidence showed defendant fired defendant’s gun intentionally, defendant could not assert the defense of killing by accident or misfortune in defendant’s murder case where the victim was struck in the head as the victim was driving away in a minivan and defendant fired his gun at the minivan. Montana v. State, 822 So. 2d 954, 2002 Miss. LEXIS 220 (Miss. 2002).

In a murder prosecution arising from events surrounding an altercation between the defendant and others at a bar, the court properly instructed the jury with regard to accident where the defendant claimed that he did not think that he shot the victim, but that if he did, he did not intend to shoot her and it happened while he was preparing to shoot his gun in the air to scare off attacking bar patrons. Evans v. State, 797 So. 2d 811, 2000 Miss. LEXIS 186 (Miss. 2000).

The court properly instructed the jury with regard to the defense of accident where the defendant asserted that he did not think that he shot the victim, but that if he did, he did not intend to do so, and it happened as he was preparing to fire his gun in the air to scare off patrons in a bar who were attacking him. Evans v. State, 797 So. 2d 811, 2000 Miss. LEXIS 186 (Miss. 2000).

Under the circumstances presented, there was no evidentiary basis capable of supporting a factual finding that defendant had accidentally stabbed the victim, and the requested jury instruction for excusable homicide was properly denied. Webster v. State, 754 So. 2d 1232, 2000 Miss. LEXIS 19 (Miss. 2000).

In the prosecution of a 14 year old for manslaughter arising from an incident in which he shot another child after teasing her, he was not entitled to have the jury instructed in regard to “accident and misfortune in doing any lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent,” where the defendant admitted to unlawfully carrying a concealed weapon. Towner v. State, 726 So. 2d 251, 1998 Miss. App. LEXIS 1106 (Miss. Ct. App. 1998).

Whether killing was result of accident or misfortune is question for jury to decide after proper instruction. Miller v. State, 677 So. 2d 726, 1996 Miss. LEXIS 331 (Miss. 1996).

Refusal to grant murder defendant’s request for jury instruction on accident or misfortune was reversible error; under defendant’s version of events, he and victim were struggling over gun when it discharged, and thus, it was not sudden combat situation, nor did shooting happen during commission of unlawful act. Miller v. State, 677 So. 2d 726, 1996 Miss. LEXIS 331 (Miss. 1996).

In context of determining whether defendant committed excusable homicide, which arises when committed by accident and misfortune in doing any lawful act by lawful means, “unlawful acts” are crimes or misdemeanors. Nicholson ex rel. Gollott v. State, 672 So. 2d 744, 1996 Miss. LEXIS 146 (Miss. 1996).

Defendant’s display of pistol and his heated request for victim to shoot him, following his repeated threats against victim, constituted violation of stalking statute and was an unlawful act which would preclude defendant’s use of accident as a defense to homicide charge. Nicholson ex rel. Gollott v. State, 672 So. 2d 744, 1996 Miss. LEXIS 146 (Miss. 1996).

Defense of accident to homicide charge was inapplicable if defendant, as he alleged, fatally shot victim while attempting to commit suicide, an unlawful act, and thus defendant was not entitled to requested instruction on accident. Nicholson ex rel. Gollott v. State, 672 So. 2d 744, 1996 Miss. LEXIS 146 (Miss. 1996).

In a homicide prosecution under this section, it was error to exclude evidence of prior threats made by the victim to the defendant, even though the defendant took the position that the ultimate shooting was accidental, where the prior threats had bearing on the issue of whether the result was manslaughter or murder because they were relevant to show the defendant’s state of mind at the time of the incident. Day v. State, 589 So. 2d 637, 1991 Miss. LEXIS 767 (Miss. 1991).

Prosecuting examination may examine defendant in manslaughter prosecution who raises defenses of justifiable homicide by reason of self-defense as well as excusable homicide by reason of accident or misfortune regarding why defendant did not back off or flee when deceased pulled knife on defendant where jury is specifically instructed that defendant is under no duty to flee but rather has right to stand ground. Burge v. State, 472 So. 2d 392, 1985 Miss. LEXIS 2129 (Miss. 1985).

It is for jury to decide whether slaying constitutes manslaughter or justifiable homicide by reason of self-defense or excusable homicide by reason of accident or misfortune where evidence shows that during course of argument, deceased displayed knife, defendant pulled gun, pointed it at deceased and cocked it, and during ensuing scuffle, gun discharged, striking deceased. Burge v. State, 472 So. 2d 392, 1985 Miss. LEXIS 2129 (Miss. 1985).

Failure of court to authorize manslaughter verdict is not error where proof showed no element of manslaughter, theory of defense was that of accidental killing, and neither state nor defense requested an instruction on manslaughter. Hendrix v. State, 41 So. 2d 48 (Miss. 1949).

Instructions for state defining malice aforethought is not erroneous on ground that it omits reference to accidental killing when there is little, if anything, in record from which inference could be drawn by jury that killing was accidental and this was matter of defense fully submitted to jury under instruction obtained by defendant. Price v. State, 207 Miss. 111, 41 So. 2d 37, 1949 Miss. LEXIS 321 (Miss.), cert. denied, 338 U.S. 844, 70 S. Ct. 92, 94 L. Ed. 516, 1949 U.S. LEXIS 1836 (U.S. 1949).

An instruction permitting the jury to find the defendant guilty of manslaughter if it believed that the defendant cut or stabbed the deceased with a knife “as shown by the testimony,” is not in direct conflict with an instruction to the effect that defendant could be acquitted if the jury found that he had killed the deceased as a result of an accident or misfortune while in the heat of passion upon a sudden and sufficient provocation, and does not constitute reversible error, where the only positive evidence in the case was to be found in the dying declarations of decedent wherein the declarant said that defendant “knifed him,” and the defendant himself admitted that he was armed with an open knife at the time. Morris v. State, 182 Miss. 763, 183 So. 694, 1938 Miss. LEXIS 209 (Miss. 1938).

Where accused unlawfully pointed pistol at deceased who was killed as result, court properly refused to submit accidental killing to jury. Long v. State, 163 Miss. 535, 141 So. 591, 1932 Miss. LEXIS 71 (Miss. 1932).

3. Killing in sudden combat.

The defendant was not entitled to an instruction with regard to sudden combat where (1) after the defendant and his wife left a nightclub, the victim walked by his wife while she was making a telephone call, knocked her into a wall, and called her a name, (2) the defendant saw the incident from about 45 feet away, went to aid his wife, and pursued the victim into a dark breezeway, (3) upon entering the breezeway, he felt someone (the victim) grab his shirt and he responded by hitting him twice and kicking him twice, (4) the victim fell and hit his head and died over a month later. Goff v. State, 778 So. 2d 779, 2000 Miss. App. LEXIS 287 (Miss. Ct. App. 2000).

Only time homicide cannot be excusable when dangerous weapon is used is when it takes place during sudden combat. Miller v. State, 677 So. 2d 726, 1996 Miss. LEXIS 331 (Miss. 1996).

Paragraph (c) of this section [Code 1942, § 2219] is not available to an aggressor. Jeffcoat v. State, 21 So. 2d 8 (Miss. 1945).

Evidence that accused struck deceased when deceased was doing no overt act in or toward a combat, and that there was no conduct on part of deceased sufficient to produce any appearance that deceased intended any such act, did not authorize peremptory charge for accused under statute defining “excusable homicide.” Conner v. State, 179 Miss. 795, 177 So. 46, 1937 Miss. LEXIS 89 (Miss. 1937).

4. Instructions to jury.

In an aggravated assault case, in which defendant alleged that he inadvertently stabbed the victim, trial counsel was not ineffective for not offering what defendant called an “accident instruction” based on the excusable homicide statute because the instruction might have confused the jury; and defendant failed to rebut the presumption that counsel’s failure to offer the proffered instruction was trial strategy. Greenleaf v. State, 267 So.3d 749, 2019 Miss. LEXIS 125 (Miss. 2019).

Trial court correctly denied defendant’s accident-or-misfortune jury instruction because, while she suffered from depression, none of the experts testified that she was insane under M’Naghten standard, and the evidence did not show that she acted with usual and ordinary caution as statutorily required where she was able to walk to her car, drive to the church, carry the suitcase to the woods, drive home, bathe, wash her clothes, attend church the following morning, and go to work the following week. Ealey v. State, 158 So.3d 283, 2015 Miss. LEXIS 80 (Miss. 2015).

Jury instruction granted by the circuit court did not correctly state the applicable law on accident since it lacked all the elements; the jury should have been privy to all subsections of the statute to determine if any of the subsections applied to defendant’s case. McTiller v. State, 113 So.3d 1284, 2013 Miss. App. LEXIS 295 (Miss. Ct. App. 2013).

Trial court’s refusal to instruct the jury on defendant’s alternative heat-of-passion theory was reversible error where: (1) the requested instruction correctly stated the law, and directly paralleled Miss. Code Ann. §97-3-17(b); (2) the theory encompassed in the rejected instruction was not covered elsewhere; and (3) sufficient evidence existed for the jury to be instructed on accident and misfortune as defendant testified that he did not mean to do it and that it was an accident, defendant and his wife were engaged in an escalating argument and the wife had used a knife to threaten and cut defendant moments before he shot her, and defendant testified that, just before he shot her, his wife looked like she was fixing to get him and had the knife drawn back. Clayton v. State, 106 So.3d 802, 2012 Miss. LEXIS 615 (Miss. 2012).

In defendant’s prosecution on a charge of manslaughter, the trial court correctly denied an instruction on excusable homicide as the evidence showed that defendant’s act of shooting the victim was an intentional act; thus, the instruction on accidental killing did not apply to the facts of the case. Ford v. State, 52 So.3d 1245, 2011 Miss. App. LEXIS 53 (Miss. Ct. App. 2011).

In a murder case, the trial court correctly denied defendant’s jury instruction because defendant’s theory of the case was based upon his own testimony that he intentionally fired each shot, and there was no evidence from which a jury could have found that he fired the shots accidentally. Further, there was sufficient evidence to find that defendant shot into the trailer house with a deliberate design to kill; although there was sufficient evidence that defendant had a deliberate design to kill his brother, defendant’s intent to kill his brother was transferred to the sister-in-law, the actual victim. Walden v. State, 29 So.3d 17, 2008 Miss. App. LEXIS 462 (Miss. Ct. App. 2008), cert. denied, 29 So.3d 774, 2010 Miss. LEXIS 105 (Miss. 2010).

Where a defendant was convicted of manslaughter in the shooting death of his wife, the trial court erred when it denied defendant’s request to present a theory of the defense instruction; the denial of this fundamental right was reversible error. Chinn v. State, 958 So. 2d 1223, 2007 Miss. LEXIS 381 (Miss. 2007).

Defendant’s argument that he acted in the heat of passion as a consequence of his being distraught over the denial of his visitation request was not provocation that the appellate court considered to be either sudden or sufficient within the meaning of the statute. Jackson v. State, 815 So. 2d 1196, 2002 Miss. LEXIS 168 (Miss. 2002).

Where defendant presented no evidence that any of the shots fired were accidentally fired, but only that the direction of the bullet was accidental, the court correctly held that because the defendant intentionally fired the weapon, the defendant was precluded from receiving the requested jury instructions. Montana v. State, 2002 Miss. LEXIS 172 (Miss. May 9, 2002), op. withdrawn, sub. op., 822 So. 2d 954, 2002 Miss. LEXIS 220 (Miss. 2002).

Evidence was insufficient in a murder prosecution to justify an instruction to the jury with regard to excusable homicide where there was no evidence that the defendant drew his gun in an attempt to break up the fight between the defendant and another. Robinson v. State, 758 So. 2d 480, 2000 Miss. App. LEXIS 162 (Miss. Ct. App. 2000).

5. Applicability to assault.

Defendant’s convictions for aggravated assault were inappropriate because the undisputed evidence showed that he was acting in necessary self-defense when the projectiles from his firearm struck the bystanders that led to his two aggravated assault convictions. The same principles contained in Miss. Code Ann. §97-3-17 were applicable to make an assault that did not result in death excusable. Rogers v. State, 994 So. 2d 792, 2008 Miss. App. LEXIS 170 (Miss. Ct. App.), cert. denied, 998 So. 2d 1010, 2008 Miss. LEXIS 668 (Miss. 2008).

6. Illustrative cases.

Culpable-negligence manslaughter instruction’s mistaken reference to “his” negligence, when defendant was female, was not plain error because (1) no jury confusion was shown, and (2) the jury was properly instructed on defendant’s accident theories. McCarty v. State, 247 So.3d 260, 2017 Miss. App. LEXIS 623 (Miss. Ct. App. 2017), cert. denied, 246 So.3d 885, 2018 Miss. LEXIS 263 (Miss. 2018).

Defendant was properly convicted of capital murder with the underlying felony of child abuse because she gave birth to a baby in a hotel room, wrapped the baby in a comforter, put him in a suitcase, left the suitcase partially hidden in a wooded area behind her church, and did not tell anyone what happened. Ealey v. State, 158 So.3d 283, 2015 Miss. LEXIS 80 (Miss. 2015).

RESEARCH REFERENCES

ALR.

Criminal liability for excessive or improper punishment inflicted on child by parent, teacher, or one in loco parentis. 89 A.L.R.2d 396.

Insulting words as provocation of homicide or as reducing the degree thereof. 2 A.L.R.3d 1292.

Mental or emotional condition as diminishing responsibility for crime. 22 A.L.R.3d 1228.

Homicide predicated on improper treatment of disease or injury. 45 A.L.R.3d 114.

Unintentional killing of or injury to third person during attempted self-defense. 55 A.L.R.3d 620.

Homicide: burden of proof on defense that killing was accidental. 63 A.L.R.3d 936.

Venue in homicide cases where crime is committed partly in one country and partly in another. 73 A.L.R.3d 907.

Accused’s right, in homicide case, to have jury instructed as to both unintentional shooting and self-defense. 15 A.L.R.4th 983.

Homicide: physician’s withdrawal of life supports from comatose patient. 47 A.L.R.4th 18.

Standard for determination of reasonableness of criminal defendant’s belief, for purposes of self-defense claim, that physical force is necessary – modern cases. 73 A.L.R.4th 993.

Homicide: Liability where death immediately results from treatment or mistreatment of injury inflicted by defendant. 50 A.L.R.5th 467.

Am. Jur.

40 Am. Jur. 2d, Homicide §§ 104 et seq.

2 Am. Jur. Trials, Investigating Particular Crimes §§ 40-57 (homicide).

7 Am. Jur. Trials, Homicide §§ 1 et seq.

27 Am. Jur. Trials 261, Hunting Accident Litigation.

40 Am. Jur. Trials 501, Forensic Pathology in Homicide Cases.

CJS.

40 C.J.S., Homicide §§ 150-152.

Practice References.

Ronald L. Schoenberg, Criminal Law Deskbook (Matthew Bender).

§ 97-3-19. Homicide; murder defined; first-degree murder; second-degree murder; capital murder; lesser-included offenses.

  1. The killing of a human being without the authority of law by any means or in any manner shall be murder in the following cases:
    1. When done with deliberate design to effect the death of the person killed, or of any human being, shall be first-degree murder;
    2. 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, shall be second-degree murder;
    3. When done without any design to effect death by any person engaged in the commission of any felony other than rape, kidnapping, burglary, arson, robbery, sexual battery, unnatural intercourse with any child under the age of twelve (12), or nonconsensual unnatural intercourse with mankind, or felonious abuse and/or battery of a child in violation of subsection (2) of Section 97-5-39, or in any attempt to commit such felonies, shall be first-degree murder;
    4. When done with deliberate design to effect the death of an unborn child, shall be first-degree murder.
  2. The killing of a human being without the authority of law by any means or in any manner shall be capital murder in the following cases:
    1. Murder which is perpetrated by killing a peace officer or fireman while such officer or fireman is acting in his official capacity or by reason of an act performed in his official capacity, and with knowledge that the victim was a peace officer or fireman. For purposes of this paragraph, the term “peace officer” means any state or federal law enforcement officer, including, but not limited to, a federal park ranger, the sheriff of or police officer of a city or town, a conservation officer, a parole officer, a judge, senior status judge, special judge, district attorney, legal assistant to a district attorney, county prosecuting attorney or any other court official, an agent of the Alcoholic Beverage Control Division of the Department of Revenue, an agent of the Bureau of Narcotics, personnel of the Mississippi Highway Patrol, and the employees of the Department of Corrections who are designated as peace officers by the Commissioner of Corrections pursuant to Section 47-5-54, and the superintendent and his deputies, guards, officers and other employees of the Mississippi State Penitentiary;
    2. Murder which is perpetrated by a person who is under sentence of life imprisonment;
    3. Murder which is perpetrated by use or detonation of a bomb or explosive device;
    4. Murder which is perpetrated by any person who has been offered or has received anything of value for committing the murder, and all parties to such a murder, are guilty as principals;
    5. When done with or without any design to effect death, by any person engaged in the commission of the crime of rape, burglary, kidnapping, arson, robbery, sexual battery, unnatural intercourse with any child under the age of twelve (12), or nonconsensual unnatural intercourse with mankind, or in any attempt to commit such felonies;
    6. When done with or without any design to effect death, by any person engaged in the commission of the crime of felonious abuse and/or battery of a child in violation of subsection (2) of Section 97-5-39, or in any attempt to commit such felony;
    7. Murder which is perpetrated on educational property as defined in Section 97-37-17;
    8. Murder which is perpetrated by the killing of any elected official of a county, municipal, state or federal government with knowledge that the victim was such public official;
    9. Murder of three (3) or more persons who are killed incident to one (1) act, scheme, course of conduct or criminal episode;
    10. Murder of more than three (3) persons within a three-year period;
    11. Murder which is perpetrated by the killing of a person who: (i) is or would be a witness for the state or federal government in a criminal trial; (ii) is a confidential informant for any agency of the state or federal government; or (iii) is any other person who was cooperating or assisting the state or federal government or was suspected of cooperation or assistance to the state or federal government, if the motive for the killing was either the person’s status as a witness, potential witness or informant, or was to prevent the cooperation or assistance to the prosecution. It shall not be a defense to a killing under this subsection that the defendant erroneously suspected or believed the victim to have cooperated or assisted the state or federal government.
  3. An indictment for murder or capital murder shall serve as notice to the defendant that the indictment may include any and all lesser included offenses thereof, including, but not limited to, manslaughter.

HISTORY: Codes, Hutchinson’s 1848, ch. 64, art. 12, Title 2 (3, 4); 1857, ch. 64, art. 165; 1871, § 2628; 1880, § 2875; 1892, § 1149; 1906, § 1227; Hemingway’s 1917, § 957; 1930, § 985; 1942, § 2215; Laws, 1974, ch. 576, § 6(1, 2); Laws, 1983, ch. 429, § 1; Laws, 1992, ch. 508, § 1; Laws, 1996, ch. 422, § 3; Laws, 1998, ch. 588, § 1; Laws, 2000, ch. 516, § 134; Laws, 2004, ch. 393, § 1; Laws, 2004, ch. 515, § 2; Laws, 2013, ch. 555, § 1; Laws, 2015, ch. 450, § 1; Laws, 2017, ch. 382, § 10, eff from and after July 1, 2017.

Joint Legislative Committee Note —

Section 1 of ch. 393 Laws, 2004, effective from and after passage (approved April 20, 2004), amended this section. Section 2 of ch. 515, Laws, 2004, effective from and after passage (approved May 4, 2004), also amended this section. As set out above, this section reflects the language of both amendments pursuant to Section 1-1-109 which gives the Joint Legislative Committee on Compilation, Revision and Publication of Legislation authority to integrate amendments so that all versions of the same code section enacted within the same legislative session may become effective. The Joint Committee on Compilation, Revision and Publication of Legislation ratified the integration of these amendments as consistent with the legislative intent at the July 8, 2004 meeting of the Committee.

Amendment Notes —

The first 2004 amendment (ch. 393), in (2)(a), inserted “senior status judge, special judge, district attorney, legal assistant to a district attorney, county” in the second sentence following “parole officer a judge,” and made minor stylistic changes; and added (3).

The second 2004 amendment (ch. 515) inserted (1)(d).

The 2013 amendment added “shall be first-degree murder” at the end of (1)(a); added “shall be second-degree murder” at the end of (1)(b); added “shall be first-degree murder” at the end of (1)(c); added “shall be first-degree murder” at the end of (1)(d); substituted “Department of Revenue” for “state tax commission” at the end of the second sentence of (2)(a); and made minor stylistic changes.

The 2015 amendment added (2)(i) and (j).

The 2017 amendment added (2)(k), and made related stylistic changes.

Cross References —

Construction of the terms “capital case,” “capital offense,” “capital crime,” and “capital murder,” see §1-3-4.

Prohibition of person convicted of crimes affecting children or other violent crimes from being licensed as foster parent or a foster home, see §43-15-6.

Investigation of hunting accidents, see §49-4-31.

Effect of conviction of homicide as disqualification to hold office in labor union, etc., see §71-1-49.

Murder, as provided in this section, defined as crime of violence, see §97-3-2.

Assault and battery with deadly weapon, see §97-3-7.

Penalty for murder, see §97-3-21.

Applicability of the Racketeer Influenced and Corrupt Organization Act to this section, see §97-43-1 et seq.

Reward for arrest of one fleeing homicide, see §§99-3-35 through99-3-39.

Requisites of indictment for homicide, see §99-7-37.

Procedures requisite in capital crime cases, see §99-17-20.

Conviction of constituent offense, see §99-19-5.

Enhancement of offenses listed in99-19-401(2) if the instrumentality used in the commission of the99-19-401(2) offense was initially obtained in the course of the commission of the crime(s) provided for in this section, see § 99-19-401.

JUDICIAL DECISIONS

I. IN GENERAL.

1. In general.

2. Definitions and distinctions.

3. Plea.

4. Sentence.

5. Jury selection.

6. Request for state funds.

7. Practice and procedure.

8. Deliberate design; malice.

9. —Interference, use of deadly weapon.

10. Corpus delicti.

11. Provocation.

12. Defenses; generally.

13. —Self-defense.

14. Questions for jury.

15. Mutual combat; dueling.

16. Killing of one other than person intended.

17. Death in consequence of improper treatment of wound.

18. Murder for hire.

19. Homicide by persons joining in commission of felony.

20. Homicide by commission of dangerous act.

21. Killing as manslaughter.

22. Indictment.

23. Variance between pleading and proof.

24. Deliberations of jury; verdict.

25. Conviction of lesser offense.

26. Trial; generally.

27. —Prosecutorial misconduct.

28. —Selection and removal of jurors.

29. —Ineffective assistance of counsel.

30. —Continuance.

31. Prejudicial or harmless error; generally.

32. —Comment or act of counsel.

33. —Instructions.

34. —Self-defense.

II. EVIDENTIARY MATTERS.

35. — Death certificate.

36. Evidence; generally.

37. Witnesses—defendant as only witness to offense.

38. —Defendant's family members.

39. Admissibility; generally.

40. —Statement against interest.

41. —Res gestae; continuing acts.

42. —Admissions; confessions.

43. —Motive; propensity for violence.

44. —Photographs, other prejudicial evidence.

45. — —Photographs as admissible.

46. —Expert testimony; scientific techniques.

47. Circumstantial evidence.

48. Prior difficulty.

49. Threats.

50. Self-defense.

51. Insanity.

52. Sufficiency of evidence; generally.

53. — Conviction sustained — murder.

54. — — Capital murder.

55. —Conviction not sustained.

III. INSTRUCTIONS.

56. In general.

57. Variance between pleadings and instructions.

58. Terms and definitions.

59. Lesser included offenses.

60. – – Depraved heart murder.

61. Failure to give manslaughter instruction—where accused fails to request.

62. —Where evidence supports manslaughter.

63. —Where evidence does not support manslaughter.

64. —Where underlying offense is robbery.

65. Manslaughter instruction given where evidence sufficient for murder.

66. Failure to limit conviction to manslaughter.

67. Accessories, accomplices.

68. Cautionary instructions.

69. Peremptory instructions.

70. —Pre-arming instruction.

71. Defendant's theory of defense.

72. Flight as evidence of guilt.

73. Malice or deliberate design.

74. Self-defense.

75. Miscellaneous.

76. Death penalty.

77. Aiding And Abetting.

78. Instructions properly denied.

79. Instructions improperly denied.

I. IN GENERAL.

1. In general.

Double jeopardy did not bar defendant’s prosecution for murder, Miss. Code Ann. §97-3-19(2)(e), and kidnapping, Miss. Code Ann. §97-3-53, because murder and kidnapping had separate statutory elements, requiring different facts. McBeath v. State, 66 So.3d 663, 2010 Miss. App. LEXIS 666 (Miss. Ct. App. 2010), cert. denied, 69 So.3d 9, 2011 Miss. LEXIS 373 (Miss. 2011).

Defendant’s capital murder conviction under Miss. Code Ann. §97-3-19(2)(e) was reversed where his indictment was insufficient to charge him with capital murder or burglary because it failed to assert the underlying offense that comprised the burglary; it also failed to charge him with murder or manslaughter where it omitted the term “unlawfully” or the phrase “without the authority of law.” Jackson v. State, 2010 Miss. LEXIS 170 (Miss. Apr. 1, 2010).

Defendant’s capital murder conviction in violation of Miss. Code Ann. §97-3-19(2)(a) was proper where the statute did not violate U.S. Const. amends. VIII and XIV. The fact that Mississippi’s capital murder scheme made the death penalty a possible punishment for felony murder where there was no requirement to prove an intent to kill, and not premeditated murder, did not make the Mississippi capital murder statute unconstitutional. Davis v. State, 914 So. 2d 200, 2005 Miss. App. LEXIS 269 (Miss. Ct. App.), cert. denied, 921 So. 2d 344, 2005 Miss. LEXIS 746 (Miss. 2005), cert. denied, 549 U.S. 856, 127 S. Ct. 133, 166 L. Ed. 2d 98, 2006 U.S. LEXIS 6743 (U.S. 2006).

Evidence was sufficient to support defendant’s conviction for capital murder pursuant to Miss. Code Ann. §97-3-19(2)(e) based on an underlying burglary felony where the evidence showed that defendant killed his ex-girlfriend’s brother after breaking into the girlfriend’s home with the intent to kill her and her mother. Also the indictment sufficiently specified the underlying burglary offense. Hodges v. State, 912 So. 2d 730, 2005 Miss. LEXIS 164 (Miss.), cert. denied, 546 U.S. 1037, 126 S. Ct. 739, 163 L. Ed. 2d 579, 2005 U.S. LEXIS 8670 (U.S. 2005).

It was previously determined that Miss. Code Ann. §97-3-19(e), the portion of Mississippi’s death penalty statute that provides for the application of the statute to all defendants found guilty of felony murder, is constitutional, as is Miss. Code Ann. §99-19-101, which provides that a jury is to determine punishment in capital cases, and lists the mitigating and aggravating factors to be considered; jury instructions used in defendant’s capital murder trial were in compliance with Enmund and Tison, in that the jury found that all four factors contained in Miss. Code Ann. §99-19-101 as to intent beyond a reasonable doubt were present, including that defendant had intended to kill the victim. Grayson v. State, 879 So. 2d 1008, 2004 Miss. LEXIS 721 (Miss. 2004), cert. denied, 543 U.S. 1155, 125 S. Ct. 1301, 161 L. Ed. 2d 122, 2005 U.S. LEXIS 1593 (U.S. 2005).

Where four eyewitnesses testified they saw the defendant point a gun and fire at the victim, that the victim was unarmed and made no gestures to suggest that he had a weapon or that he intended any harm to defendant, and where other witnesses testified that defendant, after the first confrontation of the day, acquired a gun and made purposeful efforts to located the victim, a jury could reasonably have found that defendant had a deliberate design to kill the victim and that he carried out that plan. Carter v. State, 845 So. 2d 748, 2003 Miss. App. LEXIS 440 (Miss. Ct. App. 2003).

Defendant’s supported allegations that his guilty plea to murdering his girlfriend was involuntary and the result of coercion because his attorney refused to investigate an allegedly incorrect criminal record that would have shown defendant to be a habitual criminal could properly be rejected by the trial court considering defendant’s motion for postconviction relief without holding an evidentiary hearing; trial court could properly impose a life sentence without referring the matter to a jury. Riley v. State, 848 So. 2d 888, 2003 Miss. App. LEXIS 196 (Miss. Ct. App. 2003).

Where a trial court fails to instruct the jury on the underlying felony in a capital murder prosecution, the Mississippi Supreme Court applies a harmless error analysis. Kolberg v. State, 829 So. 2d 29, 2002 Miss. LEXIS 268 (Miss. 2002), cert. denied, 538 U.S. 981, 123 S. Ct. 1787, 155 L. Ed. 2d 672, 2003 U.S. LEXIS 3010 (U.S. 2003), overruled in part, Harrell v. State, 134 So.3d 266, 2014 Miss. LEXIS 52 (Miss. 2014), overruled in part, Rowsey v. State, 188 So.3d 486, 2015 Miss. LEXIS 573 (Miss. 2015).

Trial court did not err in not declaring Mississippi’s death penalty statute, contained in Miss. Code Ann. §97-3-19(e), unconstitutional as the death sentence was not excessive in relation to defendant’s crime of stabbing a 78-year old woman to death and death sentences were imposed with reasonable consistency in Mississippi such that imposing a death sentence in defendant’s case was not improper. Grayson v. State, 806 So. 2d 241, 2001 Miss. LEXIS 303 (Miss. 2001), cert. denied, 537 U.S. 973, 123 S. Ct. 466, 154 L. Ed. 2d 329, 2002 U.S. LEXIS 7800 (U.S. 2002).

Subsection (2)(f) of this section is constitutional, notwithstanding that it does not require deliberate design. Miller v. State, 748 So. 2d 100, 1999 Miss. LEXIS 291 (Miss. 1999).

The phrase “without authority of law” is an element of capital murder as defined by subsection (2)(e) of this section. Edwards v. State, 737 So. 2d 275, 1999 Miss. LEXIS 80 (Miss. 1999).

The State supreme court rejected the contention that this section is unconstitutional due to its failure to clearly define “deliberate design;” the defendant did not meet his burden of proving beyond a reasonable doubt that the statute is unconstitutionally vague. Jones v. State, 710 So. 2d 870, 1998 Miss. LEXIS 144 (Miss. 1998).

Capital murder defendant cannot be convicted of both capital murder and underlying felony, as defendant cannot be twice prosecuted for the same actions. Wilcher v. State, 697 So. 2d 1087, 1997 Miss. LEXIS 100 (Miss. 1997), cert. denied, 522 U.S. 1053, 118 S. Ct. 705, 139 L. Ed. 2d 647, 1998 U.S. LEXIS 149 (U.S. 1998).

Aggravating factor of murder committed during course of robbery is constitutional. Wilcher v. State, 697 So. 2d 1087, 1997 Miss. LEXIS 100 (Miss. 1997), cert. denied, 522 U.S. 1053, 118 S. Ct. 705, 139 L. Ed. 2d 647, 1998 U.S. LEXIS 149 (U.S. 1998).

Defendant could be prosecuted for capital murder based on felony murder, even though he could also have been charged with manslaughter. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

Where defendant was charged with two acts of sexual battery, one of which constituted the underlying felony to the capital murder and the other of which served as the basis of separate sexual battery conviction, the latter aggravated the crime and narrowed the class of defendants eligible for the death penalty substantially. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

Because defendant had previously been convicted of aggravated assault and certified as an adult, he would not have been entitled to a youth court hearing for his capital murder charge even if such a hearing would otherwise be required. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

A defendant’s convictions for both murder-for-hire capital murder under subsection (2)(d) of this section and conspiracy to commit capital murder under §97-1-1 violated the constitutional protection against double jeopardy, since the definition of murder-for-hire in subsection (2)(d) of this section completely encompasses the agreement or conspiracy to commit capital murder. Colosimo v. Senatobia Motor Inn, 662 So. 2d 552, 1995 Miss. LEXIS 479 (Miss. 1995).

The constitutional principles of double jeopardy are not violated by the “double use” of the pecuniary gain factor in elevating a murder to the status of capital murder because it was perpetrated by one who had been given something of value for the killing pursuant to subsection (2)(d) of this section and in imposing the death penalty for committing murder by pecuniary gain pursuant to §99-19-101(5)(f). Nixon v. State, 533 So. 2d 1078, 1987 Miss. LEXIS 2917 (Miss. 1987), cert. denied, 490 U.S. 1102, 109 S. Ct. 2458, 104 L. Ed. 2d 1012, 1989 U.S. LEXIS 2745 (U.S. 1989), overruled, Wharton v. State, 734 So. 2d 985, 1998 Miss. LEXIS 576 (Miss. 1998).

Merger doctrine does not apply, and therefore underlying crime of felonious child abuse does not merge into murder, because societal interests are different regarding capital murder statute and felonious child abuse statute, former designed to punish and act as deterrent to such crimes should death result, the latter intended to protect children. Faraga v. State, 514 So. 2d 295, 1987 Miss. LEXIS 2656 (Miss. 1987), cert. denied, 487 U.S. 1210, 108 S. Ct. 2858, 101 L. Ed. 2d 894, 1988 U.S. LEXIS 2778 (U.S. 1988).

Intent of legislature was that serious child abusers would be guilty of capital murder if child died. Faraga v. State, 514 So. 2d 295, 1987 Miss. LEXIS 2656 (Miss. 1987), cert. denied, 487 U.S. 1210, 108 S. Ct. 2858, 101 L. Ed. 2d 894, 1988 U.S. LEXIS 2778 (U.S. 1988).

District Attorney’s statements that defendant had spent 6 years in jail in Cuba and had been arrested and imprisoned in Texas, both of which showed significant history of criminal activity, were not used against defendant as aggravating circumstances, because it was proper for District Attorney to rebut defendant’s argument that absence of criminal activity should be regarded as mitigating circumstance. Defendant admitted he had previously been convicted in Cuba for possession of marijuana, had been imprisoned in Cuba for 4 years as political prisoner, and had been arrested in Texas but was not convicted of anything. Faraga v. State, 514 So. 2d 295, 1987 Miss. LEXIS 2656 (Miss. 1987), cert. denied, 487 U.S. 1210, 108 S. Ct. 2858, 101 L. Ed. 2d 894, 1988 U.S. LEXIS 2778 (U.S. 1988).

Circuit Court did not err when it allowed witness to testify who had refused to talk to defense counsel prior to trial unless District Attorney could be present during interview; it was also not error for Circuit Court to refuse to order disclosure of pre-trial statement of same witness, where there was no inconsistency between pre-trial statement and testimony of witness at trial. Tolbert v. State, 511 So. 2d 1368, 1987 Miss. LEXIS 2681 (Miss. 1987), cert. denied, 484 U.S. 1016, 108 S. Ct. 723, 98 L. Ed. 2d 672, 1988 U.S. LEXIS 259 (U.S. 1988).

Trial court may deny defendant’s request for permanent injunction enjoining media from covering pretrial motions and hearings in capital murder case. Johnson v. State, 476 So. 2d 1195, 1985 Miss. LEXIS 2257 (Miss. 1985).

Venue for murder prosecution is proper in county in which body of victim is found. Hickson v. State, 472 So. 2d 379, 1985 Miss. LEXIS 2132 (Miss. 1985).

Trial judge does not impermissibly deny murder defendant right to counsel by denying motion by defense counsel for leave to withdraw which is filed within 2 weeks from date case is to be tried where attorney ably cross-examines state’s witnesses at trial, raises appropriate objections to inadmissible material, files numerous pretrial motions, succeeds in having defendant’s custodial statements suppressed and in fact is successful in obtaining verdict of less than capital murder. Fairley v. State, 467 So. 2d 894, 1985 Miss. LEXIS 1902 (Miss.), cert. denied, 474 U.S. 855, 106 S. Ct. 160, 88 L. Ed. 2d 133, 1985 U.S. LEXIS 3725 (U.S. 1985).

In a prosecution for capital murder (subsection (2)(e) of this section), the trial court did not err in failing to suppress defendant’s confession, despite defendant’s contention that the confession was not voluntary because he was concerned that the police were implicating his brother in the murder when in fact his brother was not involved, where the record was replete with evidence that defendant was given his Miranda rights on several occasions and where the record would not support a conclusion that his concern was used by officers to overreach him. Reddix v. State, 381 So. 2d 999, 1980 Miss. LEXIS 1845 (Miss.), cert. denied, 449 U.S. 986, 101 S. Ct. 408, 66 L. Ed. 2d 251 (U.S. 1980).

This section is constitutional despite the language permitting the imposition of death upon one who harbors no specific intent to kill. Furthermore, since there are no statutory limitations on the mitigating factors that may be considered in the capital sentencing process (§97-3-21), it suffers no constitutional infirmities. Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973, 1978 U.S. LEXIS 133 (U.S. 1978); Culberson v. State, 379 So. 2d 499, 1979 Miss. LEXIS 2528 (Miss. 1979), cert. denied, 449 U.S. 986, 101 S. Ct. 406, 66 L. Ed. 2d 250, 1980 U.S. LEXIS 3943 (U.S. 1980).

Where a victim was raped and murdered during a connected chain of events, a conviction for capital murder was proper under subsection (2)(e) of this section even though the death of the victim was not a result of the actual rape. Pickle v. State, 345 So. 2d 623, 1977 Miss. LEXIS 2472 (Miss. 1977).

Test of defendant’s criminal responsibility is his ability at the time he committed the act to realize the nature and quality thereof, and to distinguish right from wrong. Smith v. State, 95 Miss. 786, 49 So. 945, 1909 Miss. LEXIS 295 (Miss. 1909).

2. Definitions and distinctions.

Although depraved-heart murder and culpable-negligence manslaughter share some elements, they are separate crimes with differing states of culpability; depraved-heart murder involves a higher degree of recklessness from which malice of deliberate design may be implied. Nichols v. State, 27 So.3d 433, 2009 Miss. App. LEXIS 473 (Miss. Ct. App. 2009), cert. denied, 27 So.3d 404, 2010 Miss. LEXIS 70 (Miss. 2010), cert. denied, 562 U.S. 849, 131 S. Ct. 97, 178 L. Ed. 2d 61, 2010 U.S. LEXIS 5836 (U.S. 2010).

Miss. Code Ann. §97-3-19(2)(e) did not address whether the victim in a felony-murder case had to be innocent as it simply stated that capital murder was the killing of a human being without authority of law by any means or in any manner when committed, regardless of intent, by a person engaged in one of several enumerated felonies; robbery was one of the enumerated felonies, and the jury found that defendant killed the victim during the commission of a robbery. Grant v. State, 8 So.3d 213, 2008 Miss. App. LEXIS 495 (Miss. Ct. App. 2008), cert. denied, 12 So.3d 531, 2009 Miss. LEXIS 207 (Miss. 2009).

Defendant’s prosecutions for both shooting into a vehicle under Miss. Code Ann. §97-25-47 and murder under Miss. Code Ann. §97-3-19(1)(a), did not subject him to double jeopardy since the crimes charged required additional facts separate from each other; murder, unlike shooting into a vehicle, required the deliberate killing of an individual and did not require defendant to have shot into a vehicle, while shooting into a vehicle required only that defendant willfully shot into or at a vehicle, Further, the facts were such that it was not clear whether defendant shot into the vehicle when he killed the victim, as there was testimony to the effect that the victim may have had all or part of his head outside the vehicle when he was shot; in essence, the facts were such that defendant could have been found guilty of murder and of shooting into a vehicle without any risk of exposure to double jeopardy. Peacock v. State, 970 So. 2d 197, 2007 Miss. App. LEXIS 763 (Miss. Ct. App. 2007).

Miss. Code Ann. §97-3-19(2) capital murders were found where underlying felonies of burglary and felony child abuse elevated murders of defendant’s ex-wife’s family to captial status; the offenses were not merged. Stevens v. State, 806 So. 2d 1031, 2001 Miss. LEXIS 234 (Miss. 2001), cert. denied, 537 U.S. 1232, 123 S. Ct. 1384, 155 L. Ed. 2d 195, 2003 U.S. LEXIS 1755 (U.S. 2003).

Subsections (a) and (b), which define premeditated murder and depraved heart murder, respectively, have been coalesced by long standing and widely accepted case law because, 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, without regard for human life. Ruttley v. State, 746 So. 2d 872, 1998 Miss. App. LEXIS 1061 (Miss. Ct. App. 1998).

Statute allowing conviction of capital murder if murder is committed by one who is “under sentence of life imprisonment” applies to persons who are on parole from life term. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

In the sentencing phase of a capital murder prosecution, the State’s closing argument did not constitute a comment on the defendant’s failure to take the witness stand in his own defense where the State made the following argument: “Do you think she was suffering? Do you think that’s cruel and atrocious, and what’s even more than that, what do you think was running through [defendant’s] head as he sat through watching her gag on her own blood? What do you think he was thinking?” Thorson v. State, 653 So. 2d 876, 1994 Miss. LEXIS 600 (Miss. 1994).

Although the structure of this section suggests that deliberate design/premeditated murder and depraved heart murder are 2 different, mutually exclusive categories of murder, every murder done with deliberate design to effect the death of another human being is by definition done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life; Mississippi cases have for all practical purposes coalesced the 2 so that subsection (1)(b) subsumes (1)(a) of this section. Mallett v. State, 606 So. 2d 1092, 1992 Miss. LEXIS 538 (Miss. 1992).

The difference between attempted murder and aggravated assault is the specific intent requirement, for the former, and the element of deadly weapon use, for the latter. In many fact scenarios, both charges are established by the same evidence. McGowan v. State, 541 So. 2d 1027, 1989 Miss. LEXIS 180 (Miss. 1989).

A burglary perpetrated with the specific intent of killing a person inside of the burglared premises will not be deemed to be merged into, or an integral part of the, murder committed, so as to preclude a capital murder charge. Smith v. State, 499 So. 2d 750, 1986 Miss. LEXIS 2853 (Miss. 1986).

A killing subsequent to a burglary does not negate the burglary but, rather, the burglary remains a separate and distinct crime from the succeeding killing, and the 2 crimes form the foundation for a capital murder charge. Smith v. State, 499 So. 2d 750, 1986 Miss. LEXIS 2853 (Miss. 1986).

The chief distinction between murder and manslaughter is the presence of deliberation and malice in murder and its absence in manslaughter. Carter v. State, 198 Miss. 523, 21 So. 2d 404, 1945 Miss. LEXIS 226 (Miss. 1945).

Death of woman from abortion either “murder” or “manslaughter.” Lee v. State, 124 Miss. 398, 86 So. 856, 1920 Miss. LEXIS 522 (Miss. 1920).

3. Plea.

Factual basis supported appellant’s guilty plea to deliberate-design murder. Appellant was given the opportunity to disagree with the factual basis recited by the State but did not. Pipkin v. State, — So.3d —, 2019 Miss. App. LEXIS 476 (Miss. Ct. App. Oct. 1, 2019).

Defendant’s charge was only reduced to manslaughter pursuant to his plea agreement, and once the guilty plea was withdrawn, his charge of capital murder was reinstated, even if the circuit court neglected to enter an order rescinding the order that had reduced the charge; there was no merit to defendant’s contention that he should have been tried on a manslaughter charge instead of a capital murder charge. Cozart v. State, 226 So.3d 639, 2016 Miss. App. LEXIS 270 (Miss. Ct. App. 2016).

Inmate who pled guilty to murder under Miss. Code Ann. §97-3-19(1)(a) waived his right to challenge the sufficiency of the State’s evidence. Higginbotham v. State, 114 So.3d 9, 2012 Miss. App. LEXIS 595 (Miss. Ct. App. 2012), cert. denied, 116 So.3d 1072, 2013 Miss. LEXIS 317 (Miss. 2013).

Defendant’s guilty plea to murder under Miss. Code Ann. §97-3-19(1)(a) was knowing, voluntary, and intelligent as defense counsel correctly advised the inmate that when he reached the 65, he could petition to be released from custody under Miss. Code Ann. §47-5-139(1)(a); while counsel might have used the term “parole eligibility” rather than the correct term “conditional release,” he correctly advised the inmate that he would be eligible for release at age 65. Higginbotham v. State, 114 So.3d 9, 2012 Miss. App. LEXIS 595 (Miss. Ct. App. 2012), cert. denied, 116 So.3d 1072, 2013 Miss. LEXIS 317 (Miss. 2013).

Defendant was not entitled to post-conviction relief because the motion was filed outside of the three-year limitation of Miss. Code Ann. §99-39-5(2) and when defendant pled guilty to murder in violation of Miss. Code Ann. §97-3-19(1)(a), defendant stated that he understood the nature of the charge, the elements of the crime, and the consequences of pleading guilty to such a crime; thus, defendant was sufficiently informed of the elements of murder and the consequences of pleading guilty to such a crime to make defendant’s guilty plea intelligent and voluntary. Shanks v. State, 972 So. 2d 734, 2007 Miss. App. LEXIS 410 (Miss. Ct. App. 2007), cert. denied, 973 So. 2d 244, 2008 Miss. LEXIS 24 (Miss. 2008).

Defendant’s ex post facto rights were knowingly waived where there was testimony that defendant’s attorneys indicated that defendant would waive any and all rights to effectuate the plea agreement for armed robbery as an habitual offender, and avoid a possible death sentence on a murder charge. Bell v. State, 751 So. 2d 1035, 1999 Miss. LEXIS 400 (Miss. 1999).

Defendant who pleaded guilty to charges of capital murder and conspiracy was properly informed by trial court of possible sentences, and guilty plea was not involuntarily entered and was valid; defendant was fully advised of nature of charges against him and of consequences of guilty pleas, life sentence was only sentence court could impose, no minimum sentence existed for conspiracy, and defendant was not coerced, intimidated, or promised any reward beyond district attorney’s announced recommendation for sentence. Simpson v. State, 678 So. 2d 712, 1996 Miss. LEXIS 413 (Miss. 1996).

A trial court erred in allowing a defendant to plead guilty to both capital murder and the underlying felony of burglary which elevated the murder to capital murder; sentencing the defendant separately for both felony murder and the underlying felony violated his right against double jeopardy. Fuselier v. State, 654 So. 2d 519, 1995 Miss. LEXIS 222 (Miss. 1995).

A trial court erred in allowing a defendant to plead guilty to both capital murder and burglary where the burglary was the underlying felony elevating the crime of murder to capital murder, and there was no separate indictment for burglary. Fuselier v. State, 654 So. 2d 519, 1995 Miss. LEXIS 222 (Miss. 1995).

A circuit court properly summarily denied a defendant’s post-conviction relief motion to vacate his murder conviction on the ground that his guilty plea was not made knowingly and intelligently and was devoid of a factual basis, even though the defendant did not admit outright that the killing of the victim was malicious, where the defendant struck the victim twice with the butt of a gun during an altercation and continued to knock the victim down each time he pulled himself up, and there was nothing in the record to suggest that the defendant was offered any hope of reward for entering his plea of guilty or that he was coerced, threatened or intimidated into making it, but, to the contrary, the circuit court interrogated the defendant thoroughly and carefully explained to him the full gamut of constitutional protections available to him as well as the ramifications of entering a guilty plea. Lott v. State, 597 So. 2d 627, 1992 Miss. LEXIS 149 (Miss. 1992).

Before a trial court may accept a guilty plea, it must have before it substantial evidence that the accused did commit the legally defined offense to which he or she is offering the plea. What facts must be shown are a function of the definition of the crime and its assorted elements. A factual showing does not fail merely because it does not flush out the details which might be brought forth at trial. Rules of evidence may be relaxed at plea hearings, and fair inference favorable to guilt may facilitate the finding. There must be enough that the court may say with confidence that the prosecution could prove the accused guilty of the crime charged. Thus, there was an adequate factual basis for a defendant’s plea of guilty to murder, even though the defendant advised the trial court at the plea hearing that he “didn’t do the shooting,” where the defendant admitted that he was at the crime scene, the prosecution’s summary of the proof showed guilt and was made in the defendant’s presence, and, even taking the defendant’s version of the facts, it was fairly inferable that a third party shot and killed the victim under circumstances where the defendant was an accessory before the fact. Corley v. State, 585 So. 2d 765, 1991 Miss. LEXIS 591 (Miss. 1991).

Defendant who is granted new trial, after having previously been tried for capital murder and found guilty, and who enters plea of guilty to murder prior to second trial on basis of erroneous advice from counsel that he could be given death penalty upon retrial is entitled to withdraw guilty plea and be given new trial at which, upon conviction, maximum penalty imposed could be life imprisonment. Odom v. State, 483 So. 2d 343, 1986 Miss. LEXIS 2374 (Miss. 1986).

Prosecutor’s disclosure in capital murder case of plea agreement with state witness does not constitute impermissible affirmation or bolstering by prosecutor of credibility of witness. Cabello v. State, 471 So. 2d 332, 1985 Miss. LEXIS 2059 (Miss. 1985), cert. denied, 476 U.S. 1164, 106 S. Ct. 2291, 90 L. Ed. 2d 732, 1986 U.S. LEXIS 1720 (U.S. 1986).

Where defendant fired a deadly weapon into a crowd the jury was justified in finding malice and motive from this act and could find the defendant guilty of murder. Bass v. State, 54 So. 2d 259 (Miss. 1951).

4. Sentence.

In sentencing the juvenile to life without parole after he pleaded guilty to murder, the trial court applied the correct legal standard, and therefore the juvenile was properly denied postconviction relief, because it observed in its sentencing order that under Miller it had to determine whether the juvenile’s action, applying the applicable factors, constituted transient immaturity or irreparable corruption. Shoemake v. State, — So.3d —, 2019 Miss. App. LEXIS 553 (Miss. Ct. App. Nov. 12, 2019).

Trial court did not abuse its discretion by concluding that the juvenile should be sentenced to life without parole because the record showed that he was 18 days short of his 18th birthday when he committed the crime, he came from a stable and caring family, the case involved a planned murder, and the juvenile participated equally in the murder, disposing of the body, and covering up the crime. Shoemake v. State, — So.3d —, 2019 Miss. App. LEXIS 553 (Miss. Ct. App. Nov. 12, 2019).

Trial court properly resentenced defendant to life in prison without the possibility of parole for murder because, while defendant was a juvenile at the time of the murder, the trial court considered the factors in Miller v. Alabama, 567 U.S. 460 (2012), heard testimony from several of defendant’s family members, who testified that he was raised in a dysfunctional household with a mother who abused drugs and alcohol, there was no evidence that defendant succumbed to any peer pressure in committing the crime, it was defendant’s premeditated idea to kill the victim in addition to robbing him, and it was defendant who slashed the victim more than 30 times with a knife. Davis v. State, 234 So.3d 440, 2017 Miss. App. LEXIS 379 (Miss. Ct. App. 2017), cert. denied, — So.3d —, 2018 Miss. LEXIS 19 (Miss. 2018).

Trial court exceeded its authority by suspending all but twenty years of defendant’s life sentence for first-degree murder because life imprisonment was the applicable sentence for first-degree murder; therefore, the trial court had no authority to suspend any part of defendant’s life sentence.Shaheed v. State, 205 So.3d 1105, 2016 Miss. App. LEXIS 806 (Miss. Ct. App. 2016).

As defendant was 15 at the time of the murder and pursuant to Miss. Code Ann §47-7-3(1)(h) was not eligible for parole, and as Miller v. Alabama, 2012 U.S. LEXIS 4873, was decided while his appeal was pending, his life sentence was vacated and the case was remanded so the trial court could consider the Miller factors before determining sentence. Parker v. State, 119 So.3d 987, 2013 Miss. LEXIS 321 (Miss. 2013).

In a post-conviction relief proceeding in which a pro se state inmate had been indicted for capital murder and pled guilty to the reduced charge of murder, in violation of Miss. Code Ann. §97-3-19(1)(a), the only exception that he alleged allowed him to file a successive writ was the existence of an intervening decision. With regard solely to his proposed unconstitutional life sentence, he argued that the Apprendi decision and the Blakely decision satisfied the intervening-decision exception; however, those decisions did not provide any support for his claim since life was the only sentence available under Miss. Code Ann. §97-3-21. Glass v. State, 45 So.3d 1200, 2010 Miss. App. LEXIS 126 (Miss. Ct. App.), cert. denied, 49 So.3d 636, 2010 Miss. LEXIS 554 (Miss. 2010).

In a case in which defendant appealed his sentence of death by lethal injection for violating Miss. Code Ann. §97-3-19(2)(f), nothing in the record supported a finding that the death sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor. The findings by the trial judge were supported by the record, and upon comparison to other factually similar cases where the death sentence was imposed, the sentence of death was not disproportionate in the present case. Wilson v. State, 21 So.3d 572, 2009 Miss. LEXIS 450 (Miss. 2009), cert. denied, 560 U.S. 909, 130 S. Ct. 3282, 176 L. Ed. 2d 1191, 2010 U.S. LEXIS 3966 (U.S. 2010).

Defendant asserted that he was improperly sentenced to life imprisonment without the possibility of parole for murder; however, that was the sentence for capital murder. Because defendant was only sentenced to life imprisonment, not to life without the possibility of parole, under Miss. Code Ann. §97-3-21, defendant’s sentence for murder under Miss. Code Ann. §97-3-19(1) was proper. Staten v. State, 989 So. 2d 938, 2008 Miss. App. LEXIS 76 (Miss. Ct. App.), cert. denied, 993 So. 2d 832, 2008 Miss. LEXIS 400 (Miss. 2008).

Where defendant entered a plea of guilty to murder as a habitual offender, he was sentenced to serve a term of life in custody of the Mississippi Department of Corrections, without the possibility of parole. Defendant was not entitled to post-conviction relief. Padgett v. State, 938 So. 2d 876, 2006 Miss. App. LEXIS 150 (Miss. Ct. App.), cert. denied, 937 So. 2d 450, 2006 Miss. LEXIS 603 (Miss. 2006).

Inmate’s claim that when reading Miss. Code Ann. §97-5-39(2)(c) in conjunction with Miss. Code Ann. §97-3-19(2)(f), the result was an automatic implication of a capital crime regardless of how or in what manner the child suffered death, was procedurally barred under Miss. Code Ann. §99-39-21(1) because it could have been raised on direct appeal and was not; the claim was also without merit because the Mississippi Supreme Court had previously found that upon reading the statutes in conjunction that they were constitutional. Brawner v. State, 947 So. 2d 254, 2006 Miss. LEXIS 625 (Miss. 2006).

There was no merit in the allegation that the jury considered extraneous religious matters in connection with the sentencing phase of an inmate’s capital murder trial because the inmate failed to show how the jury was improperly influenced and jurors were entitled to rely on all their experiences as long as they followed the law. Smith v. State, 877 So. 2d 369, 2004 Miss. LEXIS 547 (Miss. 2004).

Court found no merit in an inmate’s claim that counsel was ineffective for failing to adequately investigate, develop, and present mitigation evidence at the sentencing phase for capital murder; some of the proposed evidence would have been irrelevant or inadmissible, and most of the proposed testimony was testified to by the inmate’s mother, and there was a minimal showing of deficient performance and no assertion of prejudice. Smith v. State, 877 So. 2d 369, 2004 Miss. LEXIS 547 (Miss. 2004).

Because the court had already determined on direct appeal that an inmate’s sentence for capital murder was not disproportionate, even though it appeared that co-defendant was the actual triggerman, and nothing changed the court’s determination, the inmate’s claim that the inmate’s death sentence was subject to review was without merit. Smith v. State, 877 So. 2d 369, 2004 Miss. LEXIS 547 (Miss. 2004).

Given case law, the court could not constitutionally deny an inmate the opportunity to present the issue of the inmate’s possible mental retardation to the trial court in connection with the inmate’s death sentence for capital murder. Smith v. State, 877 So. 2d 369, 2004 Miss. LEXIS 547 (Miss. 2004).

There was no merit in the allegation that the jury failed to consider an inmate’s conviction and sentence for capital murder separately from co-defendant’s; the court first noted that the issue was raised on direct appeal and was therefore barred pursuant to Miss. Code Ann. §99-39-21(2), and in any event, the jury returned individualized verdicts and the evidence showed that the jury considered the inmate separately. Smith v. State, 877 So. 2d 369, 2004 Miss. LEXIS 547 (Miss. 2004).

Jury executed process for narrowing class of persons eligible for death penalty by finding that defendant intended to kill and actually killed victim while contemplating that lethal force would be used in her murder, and, thus, felony murder aggravating circumstance was not constitutionally infirm and penalty was not disproportionate to crime. Berry v. State, 703 So. 2d 269, 1997 Miss. LEXIS 639 (Miss. 1997).

Felony-murder aggravator is not disproportionate within meaning of Eighth Amendment, although unintentional felony murder is punishable by death, while premeditated murder, standing alone, is not; not every defendant eligible for death penalty will have committed murder while in course of robbery or kidnapping or other statutorily enumerated felonies, and thus, felony-murder aggravator genuinely narrows class of defendants eligible for death penalty. Wilcher v. State, 697 So. 2d 1123, 1997 Miss. LEXIS 101 (Miss. 1997).

In order to impose death sentence, jury must determine that defendant either actually killed, attempted to kill, and intended that killing take place, or intended that lethal force would be employed. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

Upon determining that defendant actually killed or intended that a killing take place, jury must identify and weigh aggravating circumstances against mitigating circumstances which it has identified and, if it is unable to find aggravating circumstance or determines that aggravating circumstance is outweighed by mitigating circumstances, death penalty is statutorily barred. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

Sentence of death imposed upon 17-year-old defendant with IQ of 67 who struck victim with baseball bat, inserted it into her anus, and had sex with her after she was dead was not disproportionate. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

Instructing jury that defendant could be sentenced to life in prison precluded claim that overlapping statutes for felonious child abuse and manslaughter, one which permitted death penalty and another that did not, gave prosecutors and juries unfettered discretion to impose the death penalty, in violation of Eighth Amendment rights. Jackson v. State, 672 So. 2d 468, 1996 Miss. LEXIS 718 (Miss. 1996).

Death sentence was not excessive or disproportionate for defendant convicted of fatal stabbing of 4 children and inflicting life-threatening wounds upon an adult and another child while in search of money kept in residence. Jackson v. State, 672 So. 2d 468, 1996 Miss. LEXIS 718 (Miss. 1996).

Imposition of death penalty on defendant who killed victim during course of robbery was not disproportionate to penalty imposed in similar cases, although defendant was 17 years old at time of offense, had disadvantaged background and had low IQ. Holly v. State, 671 So. 2d 32, 1996 Miss. LEXIS 15 (Miss.), cert. denied, 518 U.S. 1025, 116 S. Ct. 2565, 135 L. Ed. 2d 1082, 1996 U.S. LEXIS 4179 (U.S. 1996).

Proportionality requirement was satisfied in capital murder case involving kidnapping of stranger, sexual assault prior to killing, and efforts to hide body and obscure evidence; death penalty had been given, and found to be proportional, in another case involving same elements. Walker v. State, 671 So. 2d 581, 1995 Miss. LEXIS 494 (Miss. 1995), cert. denied, 519 U.S. 1011, 117 S. Ct. 518, 136 L. Ed. 2d 406, 1996 U.S. LEXIS 7236 (U.S. 1996).

Imposition of death penalty, on defendant convicted for kidnapping, sexually assaulting and killing victim, was not disproportionate even though accomplice who provided evidence against defendant received sentence of life imprisonment; it was defendant’s idea to take victim to deserted location, and defendant had been actual perpetrator of assaults, other than one rape perpetrated by accomplice. Walker v. State, 671 So. 2d 581, 1995 Miss. LEXIS 494 (Miss. 1995), cert. denied, 519 U.S. 1011, 117 S. Ct. 518, 136 L. Ed. 2d 406, 1996 U.S. LEXIS 7236 (U.S. 1996).

Sentence of death, imposed on defendant convicted of killing prison guard, was not excessive or disproportionate to other similar cases in which death sentence had been imposed. Russell v. State, 670 So. 2d 816, 1995 Miss. LEXIS 617 (Miss. 1995), cert. denied, 519 U.S. 982, 117 S. Ct. 436, 136 L. Ed. 2d 333, 1996 U.S. LEXIS 6884 (U.S. 1996), cert. dismissed, 520 U.S. 1249, 117 S. Ct. 2406, 137 L. Ed. 2d 1064, 1997 U.S. LEXIS 3537 (U.S. 1997).

Death penalty was not disproportionate sentence for felony murder, where defendant instigated and planned robbery of victim, she had several opportunities to back out of robbery, she provided guns to accomplices to use against victim, and she burned victim’s house to cover her guilt. Ballenger v. State, 667 So. 2d 1242, 1995 Miss. LEXIS 451 (Miss. 1995), cert. denied, 518 U.S. 1025, 116 S. Ct. 2565, 135 L. Ed. 2d 1082, 1996 U.S. LEXIS 4177 (U.S. 1996).

In imposing a sentence of death in a capital murder case, the fact that the jury’s specific written findings supporting its verdict were “parroted” from the sentencing forms did not render the verdict ambiguous in violation of the 6th and 14th Amendments to the United States Constitution and Article 3, § 24 of the Mississippi Constitution. Carr v. State, 655 So. 2d 824, 1995 Miss. LEXIS 56 (Miss. 1995), cert. denied, 516 U.S. 1077, 116 S. Ct. 783, 133 L. Ed. 2d 734, 1996 U.S. LEXIS 547 (U.S. 1996).

An agreement between a capital murder defendant and the State for the imposition of a sentence of life imprisonment without the possibility of parole was void and unenforceable on public policy grounds where the defendant was not an habitual offender, since a sentence of life imprisonment without the possibility of parole is not an option unless the defendant is adjudged an habitual offender; the agreement was an attempt to circumvent §99-19-101, which only authorizes a sentence of life imprisonment or death for capital murder, and its enforcement by the court would bind the parole board, which would effect judicial encroachment on an executive function. Lanier v. State, 635 So. 2d 813, 1994 Miss. LEXIS 165 (Miss. 1994), overruled in part, Twillie v. State, 892 So. 2d 187, 2004 Miss. LEXIS 1322 (Miss. 2004).

A sentence of death was not so disproportionate as to require reversal, in spite of the defendant’s argument that his mental condition and emotional history, including a diagnosis of schizophrenia, his pre-trial suicidal “gesture,” and his “limited intelligence,” mitigated against a sentence of death where the record did not indicate that the defendant was ever diagnosed as suffering from paranoid schizophrenia, a report from a mental hospital, at which the defendant was examined prior to trial, stated that the defendant exhibited few, if any, symptoms of schizophrenia and that he knew the difference between right and wrong in relation to his actions, and a community health center placed the defendant’s level of intelligence on the low side of average. Conner v. State, 632 So. 2d 1239, 1993 Miss. LEXIS 541 (Miss. 1993), cert. denied, 513 U.S. 927, 115 S. Ct. 314, 130 L. Ed. 2d 276, 1994 U.S. LEXIS 7088 (U.S. 1994), overruled, Weatherspoon v. State, 732 So. 2d 158, 1999 Miss. LEXIS 4 (Miss. 1999).

The Weathersby Rule is applicable only in the context of whether or not the defendant killed with malice or intent, i.e., whether there is sufficient evidence to prove that the defendant killed with malice or intent where his or her version of the incident as the only eyewitness, says otherwise. Where the trial on a capital offense has reached the sentencing phase, the defendant’s guilt has been found and Weathersby considerations are no longer applicable. Minnick v. State, 551 So. 2d 77, 1988 Miss. LEXIS 612 (Miss. 1988), rev'd, 498 U.S. 146, 111 S. Ct. 486, 112 L. Ed. 2d 489, 1990 U.S. LEXIS 6118 (U.S. 1990), overruled, Willie v. State, 585 So. 2d 660, 1991 Miss. LEXIS 454 (Miss. 1991).

Death sentence is valid if based on single statutory aggravating factor. Faraga v. State, 514 So. 2d 295, 1987 Miss. LEXIS 2656 (Miss. 1987), cert. denied, 487 U.S. 1210, 108 S. Ct. 2858, 101 L. Ed. 2d 894, 1988 U.S. LEXIS 2778 (U.S. 1988).

Prosecutor did not improperly argue possibility of parole during sentencing phase by stating that defendant needed death penalty and not life sentence, and in any event comment was in response to defense counsel’s argument for life sentence instead of death penalty and therefore proper in rebuttal. Faraga v. State, 514 So. 2d 295, 1987 Miss. LEXIS 2656 (Miss. 1987), cert. denied, 487 U.S. 1210, 108 S. Ct. 2858, 101 L. Ed. 2d 894, 1988 U.S. LEXIS 2778 (U.S. 1988).

Where respondent was charged with capital murder for participating in assault during course of which respondent’s companion killed victim, and was sentenced to death under capital murder statute, but death sentence was vacated under intervening U.S. Supreme Court decision holding that Eighth Amendment forbids imposition of death penalty on one who aids and abets felony in the course of which murder is committed but who does not himself kill, attempt to kill, or intend that killing take place or that lethal force be employed, curt on federal habeas corpus review should require state’s judicial system to examine entire course of proceedings to determine whether at some point requisite factual finding has been made to support death penalty, which under proper circumstances does not offend Eighth amendment. Cabana v. Bullock, 474 U.S. 376, 106 S. Ct. 689, 88 L. Ed. 2d 704, 1986 U.S. LEXIS 46 (U.S. 1986), overruled in part, Pope v. Illinois, 481 U.S. 497, 107 S. Ct. 1918, 95 L. Ed. 2d 439, 1987 U.S. LEXIS 1934 (U.S. 1987).

In light of “special interest” in affording protection to law enforcement officers, state’s inclusion of subsection (2)(a) of this section as category of murder for which death penalty may be imposed can in no manner be termed arbitrary where any mitigating circumstances may be considered at sentencing phase. Johnson v. Thigpen, 623 F. Supp. 1121, 1985 U.S. Dist. LEXIS 12803 (S.D. Miss. 1985), aff'd, 806 F.2d 1243, 1986 U.S. App. LEXIS 36450 (5th Cir. Miss. 1986).

While there may be legitimate differences of opinion as to just when and how heightened scrutiny on appeal works in death penalty cases, it would seem clear that heightened scrutiny approach is most needed and most applicable in cases resting upon circumstantial evidence and where matter of whether defendant is guilty at all is by no means free of all doubt. Fisher v. State, 481 So. 2d 203, 1985 Miss. LEXIS 2281 (Miss. 1985).

A trial judge in a murder prosecution was well within his discretion in sentencing the 14-year-old defendant to life imprisonment for aiding and abetting in the murder, in spite of the defendant’s argument that the judge abused his discretion by not stating in the record his reasons for declining to utilize possible alternative criminal sanctions for juvenile offenders provided for in §43-21-159 of the Youth Court Act, where the judge stated that he was very much aware of the requirements in May v. State (Miss. 1981) 398 So. 2d 1331 because of the many cases he had handled dealing with teenagers charged with capital offenses; although minimal, the trial court adequately addressed the reasons for not utilizing the alternatives afforded. Swinford v. State, 653 So. 2d 912, 1995 Miss. LEXIS 90 (Miss. 1995).

Discretion of prosecutor and his power to plea bargain did not render capital murder law unconstitutional, since both practices are necessary to the system of justice, nor did imposition of the mandatory death penalty pursuant to the statute constitute cruel and unusual punishment, especially since there was no showing that it was discriminatorily applied. Stevenson v. State, 325 So. 2d 113, 1975 Miss. LEXIS 1601 (Miss. 1975).

5. Jury selection.

Trial court’s decision denying defendant’s Batson challenge to the State’s use of a preemptory challenge to exclude a black juror was not clearly erroneous; defendant failed to establish a prima facie case that the challenge of the juror was racially motivated. Smith v. State, 835 So. 2d 927, 2002 Miss. LEXIS 298 (Miss. 2002).

The trial court erred in finding that defendant’s counsel exercised his peremptory challenges in a racially motivated manner when his reason for striking the juror was because the juror was a member of management at a company that the attorney had successfully sued for discriminatory employment practices on behalf of defendant’s sister-in-law. Webster v. State, 754 So. 2d 1232, 2000 Miss. LEXIS 19 (Miss. 2000).

Prosecutor’s question to prospective jurors during voir dire asking whether they would be influenced by fact that thirty years had passed between murder and current trial was appropriate to determine whether any jurors were predisposed to finding defendant not guilty simply due to passage of such length of time. De La Beckwith v. State, 707 So. 2d 547, 1997 Miss. LEXIS 749 (Miss. 1997), cert. denied, 525 U.S. 880, 119 S. Ct. 187, 142 L. Ed. 2d 153, 1998 U.S. LEXIS 5751 (U.S. 1998).

Prosecutor’s question to individual venireperson in chambers regarding racial attitudes during earlier mistrial did not amount to prejudicial error in prosecution for murder of African-American civil rights leader, as such venireperson was not finally seated on jury. De La Beckwith v. State, 707 So. 2d 547, 1997 Miss. LEXIS 749 (Miss. 1997), cert. denied, 525 U.S. 880, 119 S. Ct. 187, 142 L. Ed. 2d 153, 1998 U.S. LEXIS 5751 (U.S. 1998).

Trial court’s refusal to excuse for cause jurors who stated on voir dire that they had read newspaper articles or seen television newscasts about the case after being admonished by trial court not to do so was not prejudicial error in murder prosecution; upon questioning, none of these jurors said that his or her opinion would be affected by anything they had read or seen. De La Beckwith v. State, 707 So. 2d 547, 1997 Miss. LEXIS 749 (Miss. 1997), cert. denied, 525 U.S. 880, 119 S. Ct. 187, 142 L. Ed. 2d 153, 1998 U.S. LEXIS 5751 (U.S. 1998).

Defendant was not denied opportunity to intelligently use peremptory challenges when trial court conducted voir dire itself; trial court asked venire whether anyone would automatically vote for death penalty regardless of mitigating circumstances, counsel for both sides stated they were satisfied with voir dire, and defendant did not ask trial court to further voir dire jurors and did not ask that she be allowed to do so. Ballenger v. State, 667 So. 2d 1242, 1995 Miss. LEXIS 451 (Miss. 1995), cert. denied, 518 U.S. 1025, 116 S. Ct. 2565, 135 L. Ed. 2d 1082, 1996 U.S. LEXIS 4177 (U.S. 1996).

A trial court in a capital murder prosecution did not err by allowing the prosecutor to question potential jurors first in individual sequestered voir dire or by allowing the prosecutor to use leading questions during voir dire. Davis v. State, 660 So. 2d 1228, 1995 Miss. LEXIS 287 (Miss. 1995), cert. denied, 517 U.S. 1192, 116 S. Ct. 1684, 134 L. Ed. 2d 785, 1996 U.S. LEXIS 3101 (U.S. 1996).

A murder defendant did not establish that the trial judge abused his discretion by refusing the defendant’s request to draw venire members from both of the county’s judicial districts where the defendant did not offer evidence indicating that the jury selected was biased or partial. Davis v. State, 660 So. 2d 1228, 1995 Miss. LEXIS 287 (Miss. 1995), cert. denied, 517 U.S. 1192, 116 S. Ct. 1684, 134 L. Ed. 2d 785, 1996 U.S. LEXIS 3101 (U.S. 1996).

A trial court in a capital murder prosecution did not abuse its discretion by refusing to grant the defendant’s motion for individual sequestered voir dire of the entire venire where the court asked the collective venire about the effect of pretrial publicity or information received about the case, and the court later asked if there was any reason that a juror felt that he or she could not be fair and impartial, and anyone who responded affirmatively was questioned individually in chambers. Carr v. State, 655 So. 2d 824, 1995 Miss. LEXIS 56 (Miss. 1995), cert. denied, 516 U.S. 1077, 116 S. Ct. 783, 133 L. Ed. 2d 734, 1996 U.S. LEXIS 547 (U.S. 1996).

Circuit Court did not commit error when it refused to grant new trial upon discovery that father of one juror had been murdered, where that fact having not been disclosed in voir dire would not per se have rendered juror subject to defense challenge for cause, and question propounded to prospective jurors during voir dire was ambiguous. Tolbert v. State, 511 So. 2d 1368, 1987 Miss. LEXIS 2681 (Miss. 1987), cert. denied, 484 U.S. 1016, 108 S. Ct. 723, 98 L. Ed. 2d 672, 1988 U.S. LEXIS 259 (U.S. 1988).

When coverage by local media, including television, radio and newspaper, of capital murder case, which in effect tries and finds defendant guilty not only of capital murder as charged, but also of capital murder in another, uncharged case, is so extensive that at proceedings on voir dire of prospective jurors some 101/2 months after defendant’s arrest, everyone of prospective jurors has heard of case, there is presumption that defendant cannot obtain fair and impartial jury and venue of case should be transferred to county substantially outside area of coverage of local media. Fisher v. State, 481 So. 2d 203, 1985 Miss. LEXIS 2281 (Miss. 1985).

Trial court is not required to excuse juror for cause on basis of juror’s acquaintance with witness for prosecution where credibility of witness is not crucial issue and where defense has unexercised peremptory challenges remaining. Cabello v. State, 471 So. 2d 332, 1985 Miss. LEXIS 2059 (Miss. 1985), cert. denied, 476 U.S. 1164, 106 S. Ct. 2291, 90 L. Ed. 2d 732, 1986 U.S. LEXIS 1720 (U.S. 1986).

The jury selection process under this section and §99-19-101 is constitutional. Billiot v. State, 454 So. 2d 445, 1984 Miss. LEXIS 1777 (Miss. 1984), cert. denied, 469 U.S. 1230, 105 S. Ct. 1232, 84 L. Ed. 2d 369, 1985 U.S. LEXIS 171 (U.S. 1985).

6. Request for state funds.

In appellant’s trial regarding the death of a one-year-old child who had been in appellant’s care, a trial court did not abuse its discretion in denying appellant’s request for expert funds because appellant had not been declared indigent and appellant’s attorney failed to show a concrete need for a state-funded expert; although the attorney had filed a motion for expert funds in July 2008, she did not request the motion be heard until thirteen months later at an emergency telephonic hearing the Friday before trial was scheduled to begin on Monday. Brandon v. State, 109 So.3d 128, 2013 Miss. App. LEXIS 49 (Miss. Ct. App. 2013).

Defendant admitted that he shook a two-year-old girl, the victim, so hard that she flew from his hands and hit the television; he also admitted that he was the only person who could have effected the victim’s death. Thus, even if defendant had produced an expert witness to testify that the cause of death was shaken baby syndrome or suffocation, he would remain guilty of depraved heart murder under Miss. Code Ann. §97-3-19(1)(b); as the exact cause of the victim’s death was not an essential component of the defense, there was no abuse of discretion in the trial court’s denial of funds for an expert witness for the defense. McFadden v. State, 929 So. 2d 365, 2006 Miss. App. LEXIS 105 (Miss. Ct. App. 2006).

Trial court did not err in denying defendant’s request to authorize defense counsel and a court-appointed investigator to personally contact out-of-state witnesses or a request to appoint a forensic entomologist to review the report of a court-appointed pathologist; counsel and the investigator could conduct all necessary interviews by phone and the entomologist would not have been able to reach any conclusions from the pathologist’s report without some missing photographs. Smith v. State, 835 So. 2d 927, 2002 Miss. LEXIS 298 (Miss. 2002).

In sentencing phase of capital murder prosecution, jury cannot doubly weigh commission of underlying felony and motive behind underlying felony as separate aggravating circumstances. Foster v. State, 687 So. 2d 1124, 1996 Miss. LEXIS 216 (Miss. 1996), cert. denied, 521 U.S. 1108, 117 S. Ct. 2488, 138 L. Ed. 2d 996, 1997 U.S. LEXIS 3936 (U.S. 1997).

In a prosecution for capital murder committed during the commission of a rape, the trial court’s failure to provide funds to the defendant to retain an independent pathologist constituted reversible error where the opinion of the State’s pathologist that the victim was raped was the only evidence offered to prove this critical aspect of the State’s case. In re the Reinstatement of Turner, 635 So. 2d 894, 1994 Miss. LEXIS 197 (Miss. 1994).

A murder defendant was not denied a fair trial because his motion for a court-appointed expert criminalist was denied, in spite of the defendant’s argument that he was thereby prevented from properly presenting his theory of defense of accidental discharge of the pistol used to kill the victim, where the State did not present any expert and the defendant elicited testimony from witnesses to support his defense of accidental discharge. Green v. State, 631 So. 2d 167, 1994 Miss. LEXIS 13 (Miss. 1994).

A murder defendant was not denied a fair trial by the denial of his motion for a court-appointed psychologist, in spite of the defendant’s argument that he was thereby prevented from properly presenting his theory of defense related to his state of mind when he was assaulted by the victim, where the State offered no expert testimony regarding the defendant’s state of mind, the defendant did not testify as to his state of mind, and the record did not “even hint at a defense of this nature.” Green v. State, 631 So. 2d 167, 1994 Miss. LEXIS 13 (Miss. 1994).

A murder defendant was not entitled to state funds to employ an independent fingerprint expert where the defense counsel had full access to the state’s experts and their reports, counsel were able to subject them to rigorous cross-examination, and there was nothing to indicate that the experts were biased or incompetent. Johnson v. State, 529 So. 2d 577, 1988 Miss. LEXIS 272 (Miss. 1988).

Capital murder defendant is not denied due process by trial court’s refusal to provide defendant funds with which to obtain own experts, nor does defendant suffer any disadvantage thereby where defendant’s counsel has full access to experts of state, together with investigation and reports of those experts, counsel is able to subject them to rigid cross-examination, and there is nothing to indicate that state experts are biased or incompetent. Johnson v. State, 476 So. 2d 1195, 1985 Miss. LEXIS 2257 (Miss. 1985).

Trial court may refuse defense request for funds to hire criminal investigator to aid defense counsel in preparation of defense where there is no indication of purpose and value of investigator to defense and where there is no contention that state’s expert witnesses are not impartial and independent. Cabello v. State, 471 So. 2d 332, 1985 Miss. LEXIS 2059 (Miss. 1985), cert. denied, 476 U.S. 1164, 106 S. Ct. 2291, 90 L. Ed. 2d 732, 1986 U.S. LEXIS 1720 (U.S. 1986).

In a prosecution under section 97-3-19(2)(e) for murder while in the commission of the crime of rape, the overruling by the trial court of a defense motion for the payment by the state of the expenses of hiring independent experts to examine fingerprints and blood, hair, fiber, and spermatazoa samples obtained by the prosecution did not constitute reversible error, since an indigent’s right to defense expenses is not absolute but is conditioned upon a showing that such expenses are needed to prepare and present an adequate defense, and since (1) the prosecution’s evidence as to blood, hair, and spermatazoa was admitted by stipulation, (2) defense counsel had had an opportunity to ask the state’s investigating officers whether or not the defendant’s fingerprints had been found anywhere in or around the victim’s residence, and (3) if examination of samples tested by the state’s laboratory could have had any possible benefit to the defendant, diligent counsel could somehow have raised the small sum necessary for such tests. Ruffin v. State, 447 So. 2d 113, 1984 Miss. LEXIS 1629 (Miss. 1984).

7. Practice and procedure.

In a case in which a jury convicted defendant of the capital murder of a sheriff, the trial court did not err in denying defendant’s motion to quash the indictment. Defendant was indicted for capital murder pursuant to a depraved-heart theory, and the indictment satisfied statutory requirements. Williams v. State, 234 So.3d 1278, 2017 Miss. LEXIS 388 (Miss. 2017).

A murder indictment which stated that the defendant, “willfully, and feloniously, with the deliberate design to effect the death” of the two victims, killed them by “suffocation,” sufficiently notified defendant of the charges against her, even though expert testimony established the victims died of strangulation, which is not exactly synonymous with suffocation; the purpose of the indictment is to give the accused notice and a reasonable description of the charges, to enable her to prepare a defense, and there is no requirement that it set forth the means of the victims’ death. Blakeney v. State, 2009 Miss. App. LEXIS 887 (Miss. Ct. App.), op. withdrawn, sub. op., 2009 Miss. App. LEXIS 978 (Miss. Ct. App. Dec. 8, 2009).

In a case in which defendant appealed his sentence of death by lethal injection for violating Miss. Code Ann. §97-3-19(2)(f), he argued his lawyer’s ineffective assistance prevented him from receiving the benefit of the plea agreement with the State, which would have resulted in a sentence of life imprisonment rather than death. That issue was better suited for future post-conviction-relief proceedings commenced pursuant to the Mississippi Uniform Post-Conviction Collateral Relief Act, Miss. Code Ann. §§99-39-1 to99-39-29. Wilson v. State, 21 So.3d 572, 2009 Miss. LEXIS 450 (Miss. 2009), cert. denied, 560 U.S. 909, 130 S. Ct. 3282, 176 L. Ed. 2d 1191, 2010 U.S. LEXIS 3966 (U.S. 2010).

In a case in which defendant appealed his sentence of death by lethal injection for violating Miss. Code Ann. §97-3-19(2)(f), he argued unsuccessfully that the trial court abused its discretion and arbitrarily refused to accept the first guilty plea, thus preventing him from accepting the plea-bargain agreement for life imprisonment. Given that defendant had no absolute right to have his plea accepted and given that the trial judge did not accept the plea due to his expressed dissatisfaction with appointed counsel, defendant’s argument that his plea was arbitrarily rejected was without merit. Wilson v. State, 21 So.3d 572, 2009 Miss. LEXIS 450 (Miss. 2009), cert. denied, 560 U.S. 909, 130 S. Ct. 3282, 176 L. Ed. 2d 1191, 2010 U.S. LEXIS 3966 (U.S. 2010).

It was proper, under the Eighth Amendment, for an aggravating circumstance in a capital case to duplicate an element of the capital crime of conviction, specifically rape as set forth in Miss. Code Ann. §97-3-19(2)(e). Holland v. Anderson, 583 F.3d 267, 2009 U.S. App. LEXIS 20769 (5th Cir. Miss. 2009), cert. denied, 559 U.S. 1073, 130 S. Ct. 2100, 176 L. Ed. 2d 731, 2010 U.S. LEXIS 3429 (U.S. 2010).

Federal court’s denial of habeas corpus under 28 U.S.C.S. § 2254 to an inmate convicted of capital murder pursuant to Miss. Code Ann. §97-3-19(2)(e) was proper because there was a clear split among federal courts as to whether there was a constitutional right to present evidence of innocence at sentencing when such evidence would contravene prior guilty adjudication. Holland v. Anderson, 583 F.3d 267, 2009 U.S. App. LEXIS 20769 (5th Cir. Miss. 2009), cert. denied, 559 U.S. 1073, 130 S. Ct. 2100, 176 L. Ed. 2d 731, 2010 U.S. LEXIS 3429 (U.S. 2010).

Denial of petitioner state death row inmate’s motion for severance did not violate his Fifth Amendment rights because Miss. Code Ann. §99-7-2 allowed for joinder of the four counts of capital murder under Miss. Code Ann. §97-3-19(2) and the state did not tie a weak case to a stronger one; the evidence against the inmate in each count was roughly the same and overwhelming, and it was not likely that four different juries would have returned different verdicts. Stevens v. Epps, 2008 U.S. Dist. LEXIS 69564 (S.D. Miss. Sept. 15, 2008), aff'd, 618 F.3d 489, 2010 U.S. App. LEXIS 18696 (5th Cir. Miss. 2010).

Defendant’s convictions for murder and for shooting into an occupied dwelling did not violate the double jeopardy clause of the Fifth Amendment. In order to convict defendant for shooting into an occupied dwelling, the State was required to prove that defendant shot into a dwelling house, but no such showing was required to convict defendant under the felony-murder statute. Boyd v. State, 977 So. 2d 329, 2008 Miss. LEXIS 144 (Miss. 2008).

Prosecutors remark asking jury to convict defendant of capital murder was proper rebuttal where defense counsel had based his closing argument on premise that defendant should be convicted of murder instead of capital murder; also, prosecutor’s remarks could not be construed as arguing possibility of parole and did not rise to level of reversible error. Faraga v. State, 514 So. 2d 295, 1987 Miss. LEXIS 2656 (Miss. 1987), cert. denied, 487 U.S. 1210, 108 S. Ct. 2858, 101 L. Ed. 2d 894, 1988 U.S. LEXIS 2778 (U.S. 1988).

It was not reversible error for prosecutor to recall witness to stand to repeat statements, made by defendant when he was struggling immediately after commission of murder, for purposes of impeaching defendant’s testimony about his activities immediately following incident. Faraga v. State, 514 So. 2d 295, 1987 Miss. LEXIS 2656 (Miss. 1987), cert. denied, 487 U.S. 1210, 108 S. Ct. 2858, 101 L. Ed. 2d 894, 1988 U.S. LEXIS 2778 (U.S. 1988).

Homicide defendant is entitled to fully cross-examine prosecution witness regarding witness’ relationship and conduct with defendant and victim where state’s theory of homicide is that homicide resulted from romantic triangle between defendant, witness and victim. Miskelley v. State, 480 So. 2d 1104, 1985 Miss. LEXIS 2309 (Miss. 1985).

8. Deliberate design; malice.

In a case in which defendant, who was 15 years old when he shot and killed the victim, was indicted for deliberate design murder, but pled guilty to manslaughter and kidnapping, his second petition for post-conviction relief was properly denied as he was not actually and factually innocent of deliberate design murder, for which he was originally indicted; or kidnapping, as he agreed under oath that he and another juvenile planned in advance to kill the victim and that he killed the victim by shooting him in the back of the head. Mason v. State, 235 So.3d 129, 2017 Miss. App. LEXIS 322 (Miss. Ct. App. 2017), cert. denied, — So.3d —, 2018 Miss. LEXIS 48 (Miss. 2018).

Evidence was sufficient to prove that defendant acted with deliberate design when he shot and killed his wife where it showed that he gave inconsistent accounts of the events surrounding his wife’s death, a forensic scientist testified that defendant’s gun would not have misfired in the circumstances described, defendant’s daughter testified about his life-long insistence on gun safety, and defendant had motive to kill his wife given his affair with another woman. Parvin v. State, 212 So.3d 863, 2016 Miss. App. LEXIS 101 (Miss. Ct. App. 2016), cert. denied, — So.3d —, 2017 Miss. LEXIS 95 (Miss. 2017), cert. denied, — U.S. —, 138 S. Ct. 140, 199 L. Ed. 2d 36, 2017 U.S. LEXIS 5483 (U.S. 2017).

Sufficient evidence supported defendant’s deliberate-design murder conviction because, inter alia, (1) the jury rejected defendant’s properly instructed “castle doctrine” defense, and (2) the killing was not justified under this doctrine, as a matter of law, as the victim had not entered defendant’s home and was not doing so when defendant shot the victim. Rodgers v. State, 166 So.3d 537, 2014 Miss. App. LEXIS 656 (Miss. Ct. App. 2014), cert. denied, 166 So.3d 38, 2015 Miss. LEXIS 344 (Miss. 2015).

Evidence was sufficient to support defendant’s conviction for murder as defendant admitted that he shot the victim in one typewritten statement, indicating that he and the victim got into an argument, that he worked on a puzzle, that he then walked over to a cabinet where he retrieved his pistol, and that he proceeded to the bedroom where he shot the victim in the neck. In a second handwritten statement defendant admitted that he shot the victim during an argument over her taking his pills; thus, these statements strongly supported the State’s position that defendant acted with deliberate design. Adams v. State, 62 So.3d 432, 2011 Miss. App. LEXIS 66 (Miss. Ct. App. 2011).

Defendants’ murder convictions were appropriate under Miss. Code Ann. §97-3-19(1)(a) because the evidence showed the intent of three defendants to kill the victim; all defendants joined together once one defendant found out that his mother had been in an altercation with the victim and the group went together to the victim’s apartment where they waited for the victim. Then, one defendant punched the victim and everyone in the group kicked the victim. Sneed v. State, 31 So.3d 33, 2009 Miss. App. LEXIS 556 (Miss. Ct. App. 2009), cert. denied, 2010 Miss. LEXIS 150 (Miss. Mar. 25, 2010), cert. denied, 29 So.3d 774, 2010 Miss. LEXIS 152 (Miss. 2010), cert. denied, 562 U.S. 1150, 131 S. Ct. 931, 178 L. Ed. 2d 775, 2011 U.S. LEXIS 350 (U.S. 2011).

Defendant’s conviction for murder under Miss. Code Ann. §97-3-19(1)(a) was affirmed because a rational jury could find that defendant possessed the deliberate design required for murder based on defendant’s statement to interrogating officers, the eyewitnesses’ testimonies, and the autopsy results which materially contradicted defendant’s version of the killing. Griffin v. State, 13 So.3d 833, 2009 Miss. App. LEXIS 394 (Miss. Ct. App. 2009).

Petitioner state death row inmate’s argument that the charge of murder for each victim was enhanced by underlying offenses that used murder as an element, thus violating the Double Jeopardy Clause of the Fifth Amendment, was rejected because Miss. Code Ann. §97-3-19(1), described murder to include killing with deliberate design to effect the death of the person killed, and in Miss. Code Ann. §97-3-19(2)(e) defined capital murder as including such a killing when done without any design to effect death by any person engaged in the commission of the crime of felonious child abuse and/or battery of a child in violation Miss. Code Ann. §97-5-39(2) and child abuse, as had been alleged in the indictment, was not so much an “underlying felony” as an element of the offense of capital murder, thus, the merger doctrine did not really apply. Stevens v. Epps, 2008 U.S. Dist. LEXIS 69564 (S.D. Miss. Sept. 15, 2008), aff'd, 618 F.3d 489, 2010 U.S. App. LEXIS 18696 (5th Cir. Miss. 2010).

When considering the evidence in the light most favorable to the state, a rational juror could conclude that defendant acted not out of the heat of passion, but with deliberate design to kill the victim where the evidence showed that defendant repeatedly hit the victim with multiple bricks, that defendant struck the victim from behind, that the victim had no defensive wounds on his hands, and that defendant had plenty of time to contemplate hitting the victim; thus, a jury could find that defendant acted with deliberate design. Givens v. State, 967 So. 2d 1, 2007 Miss. LEXIS 494 (Miss. 2007).

Sufficient evidence existed to convict defendant of depraved heart murder in violation of Miss. Code Ann. §97-3-19(1)(a) and (b) because, at the very least, defendant shot into a home where people were present. Chatman v. State, 952 So. 2d 945, 2006 Miss. App. LEXIS 541 (Miss. Ct. App. 2006), cert. denied, 951 So. 2d 563, 2007 Miss. LEXIS 532 (Miss. 2007).

Court rejected defendant’s argument that the evidence was insufficient to sustain his conviction of the offenses for which he was indicted, arson and capital murder with the underlying felony of arson, because defendant was not convicted of the offenses for which he was indicted, but rather the jury found him guilty of deliberate design murder pursuant to Miss. Code Ann. §97-3-19 (1)(a), which the jury was instructed on by the trial court in addition to the indicted offenses. Defendant’s statements before and after the crime about his desire to burn down his ex-wife’s house and kill his grandson, and his requests that others burn down the house, constituted admissions on deliberate design, a significant element of murder, and were direct evidence of his guilt. Smith v. State, 897 So. 2d 1002, 2004 Miss. App. LEXIS 1128 (Miss. Ct. App. 2004).

In a case where defendant was convicted of murdering his wife and her son, the trial court did not err in denying defendant’s motion for a directed verdict because there was ample evidence of deliberate design, as two of the State’s seven witnesses testified that defendant admitted killing his wife and her child, defendant used a kitchen knife to stab his unarmed wife 29 times and his unarmed son 27 times, and defendant admitted that the he lived in the mobile home where the victims were found. Wortham v. State, 883 So. 2d 599, 2004 Miss. App. LEXIS 618 (Miss. Ct. App. 2004).

Defendant’s effort to locate the victim after an earlier altercation and effort in obtaining a gun was sufficient evidence to prove the “deliberate design” element of deliberate design murder. Carter v. State, 845 So. 2d 748, 2003 Miss. App. LEXIS 440 (Miss. Ct. App. 2003).

Evidence that defendant lured the victim to a field and shot the victim in the back because defendant thought the victim had “snitched” to police about a burglary supported defendant’s conviction for murder rather than manslaughter; whether the offense was murder or manslaughter was a question for the jury. Hodge v. State, 823 So. 2d 1162, 2002 Miss. LEXIS 251 (Miss. 2002).

Malice aforethought is not an element of the capital murder of a peace officer. Stevenson v. State, 733 So. 2d 177, 1998 Miss. LEXIS 627 (Miss. 1998).

In a depraved heart murder, malice can be inferred from circumstances if actions involved very high degree of carelessness evincing reckless indifference to danger to human life. Clark v. State, 693 So. 2d 927, 1997 Miss. LEXIS 162 (Miss. 1997).

Finding that state presented sufficient evidence that defendant acted with deliberate design in killing victim, so as to preclude directed verdict, was supported by defendant’s statement to police following incident, transcript of 911 emergency call from victim, and testimony at trial, all of which indicated sufficient degree of recklessness and indifference to human life pointing to conviction, at the very least, for manslaughter or murder, and not culpable negligence. Clark v. State, 693 So. 2d 927, 1997 Miss. LEXIS 162 (Miss. 1997).

Act which poses risk to only one individual and which results in that individual’s death may be deemed depraved heart murder. Catchings v. State, 684 So. 2d 591, 1996 Miss. LEXIS 214 (Miss. 1996).

Death resulting from injuries inflicted through use of sawhorse was within scope of depraved-heart murder statute. Catchings v. State, 684 So. 2d 591, 1996 Miss. LEXIS 214 (Miss. 1996).

“Malice aforethought,” “premeditated design,” and “deliberate design” all mean same thing for purposes of offense of murder. Tran v. State, 681 So. 2d 514, 1996 Miss. LEXIS 432 (Miss. 1996).

Although a “deliberate design” to kill a person, as required for murder under subsection (1)(a) of this section, may be formed very quickly, and perhaps only moments before the act of consummating the intent, it is a contradiction in terms to state that a “deliberate design” can be formed at the very moment of the fatal act. Windham v. State, 520 So. 2d 123, 1987 Miss. LEXIS 2880 (Miss. 1987).

Defendant’s statement that he wanted to kill the victim, which was made prior to the fatal stabbing, was evidence of malice. Russell v. State, 497 So. 2d 75, 1986 Miss. LEXIS 2696 (Miss. 1986).

Subsection (2)(e), making a homicide a capital murder when done “with or without any design to effect death” by any person engaged in the commission of designated major crimes, is not unconstitutionally vague. Gray v. State, 351 So. 2d 1342, 1977 Miss. LEXIS 1951 (Miss. 1977).

Malice aforethought is the single most important element in the crime of murder. Pendergraft v. State, 213 So. 2d 560, 1968 Miss. LEXIS 1293 (Miss. 1968), cert. denied, 394 U.S. 715, 89 S. Ct. 1453, 22 L. Ed. 2d 671, 1969 U.S. LEXIS 1875 (U.S. 1969).

In murder prosecution it is unnecessary and unwise to define malice. Smith v. State, 237 Miss. 626, 114 So. 2d 676, 1959 Miss. LEXIS 513 (Miss. 1959).

The universal malice murder statute is not applicable to one who kills a woman as a result of performing an attempted abortion upon her at her request. Lackey v. State, 211 Miss. 892, 53 So. 2d 25, 1951 Miss. LEXIS 421 (Miss. 1951).

No particular period of deliberation is required to make killing deliberate, since malice may be suddenly formed and deliberate design to effect the death of another may be formed in an instant. Howard v. State, 212 Miss. 722, 55 So. 2d 436, 1951 Miss. LEXIS 501 (Miss. 1951).

Actual malice is not a necessary ingredient of murder; deliberate design is all that is required. Hughes v. State, 207 Miss. 594, 42 So. 2d 805, 1949 Miss. LEXIS 372 (Miss. 1949).

To constitute murder, the malice must precede the unlawful act which is being attempted or committed by the person killed, where the killing is done in resisting his attempt to do an unlawful act. Bangren v. State, 196 Miss. 887, 17 So. 2d 599, 1944 Miss. LEXIS 264 (Miss. 1944), overruled, Ferrell v. State, 733 So. 2d 788, 1999 Miss. LEXIS 87 (Miss. 1999).

While malice aforethought is a necessary element in the crime of murder, it does not always follow therefrom that the existence of actual malice at the time of the slaying would necessarily have the effect of rendering a particular homicide a case of murder, since a person may be guilty only of manslaughter or justifiable homicide when slaying another even though the accused is mad and is bearing ill will toward his adversary at the time of the killing, if the act is done while resisting an attempt of the latter “to do any unlawful act, or after such attempt shall have failed,” if such anger or ill will is engendered by the particular circumstances of the unlawful act then being attempted, or the commission of which is then thwarted, and is nonexistent prior thereto, each case depending upon its own facts and circumstances. Bangren v. State, 196 Miss. 887, 17 So. 2d 599, 1944 Miss. LEXIS 264 (Miss. 1944), overruled, Ferrell v. State, 733 So. 2d 788, 1999 Miss. LEXIS 87 (Miss. 1999).

“Malice aforethought” is equivalent to “premeditated design” or “deliberate design” and not “felonious design to effect the death of the person killed.” Dye v. State, 127 Miss. 492, 90 So. 180, 1921 Miss. LEXIS 249 (Miss. 1921).

Design to effect death and lack of justification are essential to malice aforethought. Ellis v. State, 108 Miss. 62, 66 So. 323, 1914 Miss. LEXIS 168 (Miss. 1914).

“Malice” may be ascertained from previous threat and preparatory measures, or may arise suddenly and be implied from circumstances, as from intentional use at outset of deadly weapon. Brown v. State, 98 Miss. 786, 54 So. 305, 1910 Miss. LEXIS 124 (Miss. 1910), overruled, 200 Miss. 881, 27 So. 2d 838, 1946 Miss. LEXIS 349 (Miss. 1946).

Malice is necessary element of murder. Guest v. State, 96 Miss. 871, 52 So. 211, 1910 Miss. LEXIS 209 (Miss. 1910).

Deliberation is necessary element of murder. Guest v. State, 96 Miss. 871, 52 So. 211, 1910 Miss. LEXIS 209 (Miss. 1910).

Absence of deliberation is one of things distinguishing manslaughter from murder. Guest v. State, 96 Miss. 871, 52 So. 211, 1910 Miss. LEXIS 209 (Miss. 1910).

Law sometimes presumes malice from existence of certain facts; jury alone can determine whether such facts exist. Burnett v. State, 92 Miss. 826, 46 So. 248, 1908 Miss. LEXIS 225 (Miss. 1908).

The statute does not alter the common law so as to limit murder to killing with express malice. The words “premeditated design,” in the old statute, meant the same as “malice aforethought” in the common-law definition. McDaniel v. State, 16 Miss. 401, 1847 Miss. LEXIS 36 (Miss. 1847).

9. —Interference, use of deadly weapon.

A killing with a deadly weapon may be susceptible of clear explanation by the accused or eyewitnesses as an accident, or justified as having been committed by the accused acting in lawful self-defense, or mitigated manslaughter. When no such proof is forthcoming the jury is warranted in finding the accused guilty of murder. Nicolaou v. State, 534 So. 2d 168, 1988 Miss. LEXIS 524 (Miss. 1988).

Malice may be inferred from defendant’s use of a deadly weapon. Russell v. State, 497 So. 2d 75, 1986 Miss. LEXIS 2696 (Miss. 1986).

Though malice is essential element of murder, malice may be implied from deliberate use of deadly weapon and it is not necessary that actual malice be shown. Smith v. State, 205 Miss. 283, 38 So. 2d 725, 1949 Miss. LEXIS 431 (Miss. 1949); Stokes v. State, 240 Miss. 453, 128 So. 2d 341, 1961 Miss. LEXIS 477 (Miss. 1961).

Law presumes malice from killing of human being with deadly weapon, and this presumption prevails and characterizes homicide as murder unless facts are introduced in evidence changing character of killing and showing either justification or necessity, but unless facts in evidence explain character of killing, presumption stands and state is entitled to instruction announcing this legal principle. Dickins v. State, 208 Miss. 69, 43 So. 2d 366, 1949 Miss. LEXIS 409 (Miss. 1949).

If accused armed himself with a deadly weapon with the purpose of killing the deceased on sight, and in pursuance of such intent, did so, then, under the law, accused’s right of self-defense is cut off and it is wholly immaterial which one provoked the difficulty or who was the aggressor immediately before the homicide. Lewis v. State, 188 Miss. 410, 195 So. 325, 1940 Miss. LEXIS 47 (Miss. 1940).

Evidence in murder trial that defendant discharged deadly weapon at passing truck, crowded with human beings, killing one of them, held to warrant finding of malice by jury. Talbert v. State, 172 Miss. 243, 159 So. 549, 1935 Miss. LEXIS 120 (Miss. 1935).

If facts relied on to change presumption of murder from killing with deadly weapon are unreasonable and improbable, verdict of murder will not be disturbed on appeal. McGehee v. State, 138 Miss. 822, 104 So. 150, 1925 Miss. LEXIS 100 (Miss. 1925).

Effect of presumption of innocence in murder trial stated; presumption of malice from use of deadly weapon will not support conviction of murder as against evidence of justification. Patty v. State, 126 Miss. 94, 88 So. 498, 1921 Miss. LEXIS 13 (Miss. 1921).

10. Corpus delicti.

Witness testified that (1) the victim and defendant got out of his car and walked into an empty field; (2) the witness then heard a shot, looked up, and saw defendant holding a gun; (3) defendant ran to the car and they left; (4) when the witness and defendant came to a bridge defendant threw the gun into the river because he said that he needed to get rid of if; (5) early that morning, defendant knocked on the witness’s window and told him that they needed to move the body; (6) the witness drove back to the location at which he heard the shot; and (7) although the witness did not see the clothes or the victim’s body as they were already in garbage bags, he testified that he and defendant disposed on the victim’s clothes in a dumpster and threw her body into the river. The witness’s testimony was sufficient to allow a reasonable jury to infer that defendant shot and killed the victim; thus, the State proved its corpus delicti for homicide. Jackson v. State, 924 So. 2d 531, 2005 Miss. App. LEXIS 451 (Miss. Ct. App. 2005), cert. denied, 927 So. 2d 750, 2006 Miss. LEXIS 175 (Miss. 2006).

Defendant’s conviction for murdering her husband in violation of Miss. Code Ann. §97-3-19 was proper where her confession to a State witness was sufficient to establish the corpus delicti of murder. Stephens v. State, 911 So. 2d 424, 2005 Miss. LEXIS 386 (Miss. 2005).

Corpus delicti in capital murder case consists of death of victim and existence of criminal agency as cause of death. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

Medical evidence is not required to prove elements of corpus delicti in capital murder case. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

State had proven corpus delicti in capital murder case by showing that victim left home under unusual circumstances, that victim was dead, and that victim’s family had identified clothing and objects found on victim’s body as same items that victim was wearing when she disappeared; state could, therefore, introduce inculpatory statements that defendant had made to witness. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

Corpus delecti of criminal homicide was established despite argument of defendant that because 21 days had elapsed between injury and death, and there was no expert or lay testimony as to cause of death, it had not been established, where death certificate and medical examiner’s report were admitted into evidence by stipulation; death certificate listed cause of death as cardio-pulmonary arrest due to or as consequence of generalized sepsis and multiple systems failure due to or as consequence of gunshot wound to abdomen; report of medical examiner also listed gunshot wound as cause of death; cause of death may be established not only by physician or pathologist, but by lay and circumstantial evidence. Luster v. State, 515 So. 2d 1177, 1987 Miss. LEXIS 2912 (Miss. 1987).

In a homicide case, the corpus delicti consists of the fact of death, and the fact of the existence of criminal agency as the cause of death. Freeman v. State, 228 Miss. 687, 89 So. 2d 716, 1956 Miss. LEXIS 564 (Miss. 1956).

Corpus delicti must be established by evidence. Taylor v. State, 108 Miss. 18, 66 So. 321, 1914 Miss. LEXIS 164 (Miss. 1914).

11. Provocation.

Weight of the evidence did not support a manslaughter conviction rather than a murder conviction because defendant failed to detail what he considered “sufficient provocation,” and his sister testified that the victim had gotten up and had began walking into the kitchen when defendant ran and grabbed the victim from behind. There was no testimony that the victim had a weapon and there was no testimony that defendant had to use deadly force under the circumstances. Ravencraft v. State, 989 So. 2d 437, 2008 Miss. App. LEXIS 480 (Miss. Ct. App. 2008).

Defendant’s murder conviction in violation of Miss. Code Ann. §97-3-19 was proper because, although the victim’s comments might have been crude and insulting, mere words, no matter how provocative, were insufficient to reduce an intentional and unjustifiable homicide from murder to manslaughter. Booze v. State, 942 So. 2d 272, 2006 Miss. App. LEXIS 852 (Miss. Ct. App. 2006).

After defendant had a confrontation with his wife, she sat down outside a relative’s home, and he fired a fatal shot into her head. The record supported the jury’s verdict of murder, rather than manslaughter, because there was no evidence of provocation. Bradford v. State, 910 So. 2d 1232, 2005 Miss. App. LEXIS 598 (Miss. Ct. App. 2005).

Mere words of reproach, however grievous or provoking, are not sufficient to reduce to manslaughter what otherwise is murder. Gaddis v. State, 207 Miss. 508, 42 So. 2d 724, 1949 Miss. LEXIS 359 (Miss. 1949).

Facts that accused was provoked over domestic difficulties with wife, that he was intoxicated, that he resented interference of deceased in his family row, neither singly nor collectively, were sufficient to reduce his crime from murder to manslaughter. Gaddis v. State, 207 Miss. 508, 42 So. 2d 724, 1949 Miss. LEXIS 359 (Miss. 1949).

An opprobrious epithet directed to the slayer by the deceased immediately preceding the stabbing is not sufficient to reduce to manslaughter what otherwise is murder. Camden Fire Ins. Co. v. New Buena Vista Hotel Co., 199 Miss. 585, 26 So. 2d 174, 1946 Miss. LEXIS 230 (Miss. 1946).

Where express malice is shown, and the killing afterward takes place with a deadly weapon, and the question is whether the killing sprang from the heat of passion or previous grudge, no mere provocation at the time the act is done will reduce the homicide from murder to manslaughter. Riggs v. State, 30 Miss. 635, 1856 Miss. LEXIS 14 (Miss. 1856).

12. Defenses; generally.

In a murder prosecution, the trial court did not abuse its discretion by refusing to instruct the jury on imperfect self-defense because the requested instruction was without foundation in the evidence. The only theory presented through witnesses called by the defense was that defendant was not the shooter, and no evidence was presented that defendant feared the victim or believed the victim to be a threat. Morgan v. State, 117 So.3d 619, 2013 Miss. LEXIS 371 (Miss. 2013).

In defendant’s capital murder case, he was not entitled to an instruction that duress was a defense to the underlying felony of kidnapping because defendant never indicated that the victim had threatened him or had done anything in particular to cause a well-founded fear of death or serious bodily injury. Moreover, on at least two occasions–once at the home and once at the cornfield–defendant actually possessed the gun; additionally, defendant could have attempted to renounce any further participation in the crime, and joined the other occupants at the back of the home. Ruffin v. State, 992 So. 2d 1165, 2008 Miss. LEXIS 518 (Miss. 2008).

Evidence, though wholly circumstantial, was sufficient to convict defendant of murdering his wife’s lover; the theory that the victim committed suicide was unreasonable because, inter alia, the victim would not have packed an ice chest if he planned to kill himself, and though he had guns, he had no shells that fit defendant’s shotgun. Cox v. State, 2003 Miss. LEXIS 103 (Miss. Mar. 13, 2003), op. withdrawn, sub. op., 849 So. 2d 1257, 2003 Miss. LEXIS 337 (Miss. 2003).

A defendant is presumed sane until a reasonable doubt of his or her sanity is created. When such a doubt arises, the burden is then placed upon the State to prove, beyond a reasonable doubt, the defendant’s sanity. The issue of a defendant’s insanity is a determination for the jury to make, and the finding will not be reversed if it is supported by substantial evidence. In making this determination, the jury may accept or reject expert and lay testimony. Davis v. State, 551 So. 2d 165, 1989 Miss. LEXIS 364 (Miss. 1989), cert. denied, 494 U.S. 1074, 110 S. Ct. 1796, 108 L. Ed. 2d 797, 1990 U.S. LEXIS 1741 (U.S. 1990).

A finding that one is mentally ill does not necessarily mean that one is M’Naghten insane. Davis v. State, 551 So. 2d 165, 1989 Miss. LEXIS 364 (Miss. 1989), cert. denied, 494 U.S. 1074, 110 S. Ct. 1796, 108 L. Ed. 2d 797, 1990 U.S. LEXIS 1741 (U.S. 1990).

Where respondent was charged with capital murder for participating in assault during course of which respondent’s companion killed victim, and was sentenced to death under capital murder statute, but death sentence was vacated under intervening U.S. Supreme Court decision holding that Eighth Amendment forbids imposition of death penalty on one who aids and abets felony in the course of which murder is committed but who does not himself kill, attempt to kill, or intend that killing take place or that lethal force be employed, curt on federal habeas corpus review should require state’s judicial system to examine entire course of proceedings to determine whether at some point requisite factual finding has been made to support death penalty, which under proper circumstances does not offend Eighth amendment. Cabana v. Bullock, 474 U.S. 376, 106 S. Ct. 689, 88 L. Ed. 2d 704, 1986 U.S. LEXIS 46 (U.S. 1986), overruled in part, Pope v. Illinois, 481 U.S. 497, 107 S. Ct. 1918, 95 L. Ed. 2d 439, 1987 U.S. LEXIS 1934 (U.S. 1987).

Fact that a defendant suffers from schizophrenia, paranoia type mental disorder does not in itself make him M’Naghten insane. Laney v. State, 486 So. 2d 1242, 1986 Miss. LEXIS 2890 (Miss. 1986).

The defense of irresistible or uncontrollable impulse is unavailable unless such impulse springs from mental illness to such a degree as to overwhelm reason, judgment and conscience. Burr v. State, 237 Miss. 338, 114 So. 2d 764, 1959 Miss. LEXIS 475 (Miss. 1959).

Uncontrollable impulse cannot be inferred from the severity of the beating by a mother of her child for a trivial reason. Burr v. State, 237 Miss. 338, 114 So. 2d 764, 1959 Miss. LEXIS 475 (Miss. 1959).

Where defendant denies that he fired a gun, there is no issue of justification and the homicide is therefore murder or no crime at all. Wright v. State, 209 Miss. 795, 48 So. 2d 509, 1950 Miss. LEXIS 444 (Miss. 1950).

Partial intoxication will not lessen criminality. Butler v. State, 39 So. 1005 (Miss. 1906).

13. —Self-defense.

Evidence supported defendant’s conviction for deliberate-design murder because defendant initiated an altercation when an employee of a power utility company came to defendant’s home to turn off the power, used a deadly weapon to shoot and kill the employee, and hid the employee’s body. Defendant failed to show that defendant acted in self-defense as defendant acted without any threat or provocation from the unarmed employee. Davis v. State, 165 So.3d 537, 2015 Miss. App. LEXIS 297 (Miss. Ct. App. 2015).

Evidence was sufficient to support a conviction for deliberate design murder where the State put on evidence that placed a reasonable doubt regarding defendant’s self-defense claim; there were no signs of a struggle or altercation, other than the shooting, and defendant shot the victim four times in the back. Davis v. State, 158 So.3d 1190, 2015 Miss. App. LEXIS 63 (Miss. Ct. App. 2015).

Murder conviction was not against the overwhelming weight of the evidence because the evidence against defendant included his admission to shooting the victim, the gunshots striking the victim from behind, the evidence conveying a scene without a struggle, and the statements from the victim naming defendant as the shooter. The question of a self-defense claim fell under the purview of the jury as fact-finders. Davis v. State, 158 So.3d 1190, 2015 Miss. App. LEXIS 63 (Miss. Ct. App. 2015).

Trial judge should have allowed defendant to introduce evidence of his knowledge of victim’s violent criminal history. The trial judge committed reversible error by refusing to allow defendant to defend himself with evidence that tended to show his state of mind at the time of the killing, as the evidence was crucial to defendant’s claim of self-defense. Richardson v. State, 147 So.3d 838, 2014 Miss. LEXIS 310 (Miss. 2014).

Defendant’s conviction for murder under Miss. Code Ann. §97-3-19(1)(b) was proper, in part because the jury was properly instructed regarding the State’s burden to prove that defendant did not act in self-defense. In part, because defendant, not the State, requested jury instruction D-1, defendant was unable to complain on appeal that the instruction was erroneous; further, jury instruction S-6 cited the appropriate standard regarding reasonableness. Franklin v. State, 72 So.3d 1129, 2011 Miss. App. LEXIS 125 (Miss. Ct. App.), cert. denied, 71 So.3d 1207, 2011 Miss. LEXIS 508 (Miss. 2011).

Defendant’s conviction for murder under Miss. Code Ann. §97-3-19(1)(b) was proper, in part because evidence was presented to show that defendant and the victim had gotten into an altercation earlier that evening, which resulted in gunfire. It was the jury’s province to consider the evidence and determine whether defendant shot the victim in self-defense. Franklin v. State, 72 So.3d 1129, 2011 Miss. App. LEXIS 125 (Miss. Ct. App.), cert. denied, 71 So.3d 1207, 2011 Miss. LEXIS 508 (Miss. 2011).

Even though he contended that he shot her in self-defense, the evidence was sufficient to convict defendant of murder under Miss. Code Ann. §97-3-19(1)(a) (2006) because there was sufficient contradictory evidence from which a reasonable juror could have rejected this claim, including testimony from a neighbor, who heard an altercation, and testimony from a friend, who averred that defendant stated he intended to kill his girlfriend due to her infidelity. Reed v. State, 31 So.3d 48, 2009 Miss. App. LEXIS 611 (Miss. Ct. App. 2009), cert. denied, 29 So.3d 774, 2010 Miss. LEXIS 151 (Miss. 2010).

Where defendant asserted self defense in what he alleged was the accidental killing of his former girlfriend when he allegedly was confronted by her male friend, the trial court abused its discretion when it prohibited the question on the male friend’s prior gun ownership. However, in a second instance, the State elicited the same information on redirect examination that defendant was barred from eliciting on cross-examination, in regard to whether the male friend had also been a suspect early in the investigation; in the former respect, the error was harmless given the overwhelming weight of the evidence against defendant, and in the latter respect, defendant’s right to confrontation was not violated as he suffered no prejudice. Raiford v. State, 907 So. 2d 998, 2005 Miss. App. LEXIS 279 (Miss. Ct. App. 2005).

Defendant’s murder conviction was proper under Miss. Code Ann. §97-3-19(1)(a), where a hypothetical juror could have been convinced that physical facts contradicted defendant’s claims that the shooting was in self-defense or accidentally inflicted. Davis v. State, 891 So. 2d 256, 2004 Miss. App. LEXIS 914 (Miss. Ct. App. 2004).

Defendant was not entitled to a directed verdict based on the theory of “imperfect self-defense” for the killing of her abusive husband where at least 45 minutes elapsed between the last act of abuse by the husband and the time defendant killed him and during that time, defendant could have obtained help against her husband, could have requested aid from the owner of the trailer where defendant and her husband resided, or could have left the premises completely. Moore v. State, 859 So. 2d 379, 2003 Miss. LEXIS 654 (Miss. 2003).

Defendant in a murder trial was not entitled to a directed verdict or JNOV when the jury was entitled to reject defendant’s claim of self-defense. Thomas v. State, 818 So. 2d 335, 2002 Miss. LEXIS 130 (Miss. 2002).

The defense of self-defense is unavailable to a defendant who is charged with capital felony-murder. Layne v. State, 542 So. 2d 237, 1989 Miss. LEXIS 190 (Miss. 1989).

A murder defendant who claimed self-defense should have been permitted to present testimonial evidence that the deceased habitually went armed with concealed weapons, and that the defendant was cognizant of that fact, in order to enable the jury to determine whether there was a reasonable cause to apprehend danger. Stoop v. State, 531 So. 2d 1215, 1988 Miss. LEXIS 493 (Miss. 1988).

Refusal to grant instruction that jury should put themselves in place of defendant and judge his acts by facts and circumstances by which he was surrounded at time of difficulty was not erroneous where theory of self-defense was fully covered in another instruction. Fairman v. State, 513 So. 2d 910, 1987 Miss. LEXIS 2791 (Miss. 1987).

The fact that deceased husband was found to have been shot in back contradicted defendant wife’s testimony that she had shot her husband in self-defense as he was approaching her. Mullins v. State, 493 So. 2d 971, 1986 Miss. LEXIS 2591 (Miss. 1986).

It is well settled in Mississippi that the person who provokes the difficulty and remains the aggressor throughout the difficulty cannot invoke the plea of self-defense. Weatherspoon v. State, 243 So. 2d 53, 1971 Miss. LEXIS 1499 (Miss. 1971).

Where defendant, armed with a pistol, left the victim’s yard upon being told to do so by the victim, but after leaving came back into the yard at which time the victim rose from his chair on the porch and started toward the defendant with a pistol in his hand and both parties began shooting, resulting in the victim’s death, such evidence was sufficient to justify the jury in finding that the defendant provoked the difficulty and was the aggressor throughout, and that the defendant was guilty of manslaughter. Weatherspoon v. State, 243 So. 2d 53, 1971 Miss. LEXIS 1499 (Miss. 1971).

To justify a killing in self-defense the defendant must have believed, and had good reason to believe, that at the time he was in danger of the loss of his life, or great bodily harm at the hands of the deceased. Spivey v. State, 47 So. 2d 855 (Miss. 1950).

Right to resist unlawful arrest is phase of right of self-defense. Wilkinson v. State, 143 Miss. 324, 108 So. 711, 1926 Miss. LEXIS 270 (Miss. 1926).

Killing after blow struck in self-defense and when no real or apparent danger existed held murder. Hays v. State, 130 Miss. 381, 94 So. 212, 1922 Miss. LEXIS 208 (Miss. 1922).

Fact that accused, while unarmed and with no intention to kill, brought about difficulty did not preclude him from setting up self-defense. Lucas v. State, 109 Miss. 82, 67 So. 851, 1915 Miss. LEXIS 117 (Miss. 1915).

One who kills another, reasonably believing that he is in real or apparent danger of his life or great bodily harm, is not guilty of murder. Echols v. State, 99 Miss. 683, 55 So. 485, 1911 Miss. LEXIS 238 (Miss. 1911).

14. Questions for jury.

When the defendant or the defendant’s witnesses are the only eyewitnesses to the homicide, their version, if reasonable, must be accepted as true, but when there is a contradiction between the physical evidence and the defendant’s version of what happened, the matter properly sits before the jury as a question of fact. Hudson v. State, 754 So. 2d 582, 2000 Miss. App. LEXIS 10 (Miss. Ct. App. 2000).

Due process clause, through vagueness doctrine, places limits on state’s ability to define different courses of conduct or states of mind as alternative means of committing single offense, thereby permitting conviction without jury agreement as to which course of conduct or state of mind occurred; if two mental states are supposed to be equivalent means of satisfying mental state requirement of offense, they must reasonably reflect notions of equivalent blameworthiness or culpability; under right circumstances, such equivalence may reasonably be found, and first-degree murder conviction was not rendered invalid by trial court’s failure to require jury to agree whether defendant was guilty of first-degree murder by virtue of premeditation or by virtue of felony murder, each of which constitutes first-degree murder under state law. Schad v. Arizona, 501 U.S. 624, 111 S. Ct. 2491, 115 L. Ed. 2d 555, 1991 U.S. LEXIS 3631 (U.S. 1991).

In cases in which the defendant is the only eyewitness to the slaying, and in which the Weathersby rule is inapplicable (i.e., the defendant does not secure a directed verdict of acquittal), it then becomes a jury issue as to whether to believe or not believe the defendant’s testimony of how the slaying occurred, and to either convict or acquit. Blanks v. State, 547 So. 2d 29, 1989 Miss. LEXIS 322 (Miss. 1989).

Expert opinions of psychiatrists are not conclusive upon the issue of insanity but rather insanity is an issue for the jury. Laney v. State, 486 So. 2d 1242, 1986 Miss. LEXIS 2890 (Miss. 1986).

A jury issue as to whether the accused had sexually assaulted victim while in commission of murder was made by evidence showing that a puddle of liquid was found under the pelvic area of the partially unclad body, although testimony of witnesses showed that a shot was fired almost immediately after accused had forced his way into victim’s apartment, and the pathologist testified that bullet had gone through victims heart. West v. State, 485 So. 2d 681, 1985 Miss. LEXIS 2445 (Miss. 1985), cert. denied, 479 U.S. 983, 107 S. Ct. 570, 93 L. Ed. 2d 574, 1986 U.S. LEXIS 4897 (U.S. 1986).

In a prosecution for capital murder whether or not defendant “robbed” the victim of his car was a question for the jury, in light of the circumstances of the murder including the facts that the feet and hands of the victim’s body were tied and there was a bullet hole through the back of his head and shortly after the time of the murder the defendant was solely in possession of the victim’s vehicle and its contents. Wheat v. State, 420 So. 2d 229, 1982 Miss. LEXIS 2206 (Miss. 1982), cert. denied, 460 U.S. 1056, 103 S. Ct. 1507, 75 L. Ed. 2d 936, 1983 U.S. LEXIS 4354 (U.S. 1983).

In a prosecution for murder the court did not err in failing to instruct the jury to restrict its verdict and find the defendant “guilty of manslaughter or not guilty,” where the evidence was for the jury to resolve the issue of whether the defendant was guilty of murder, manslaughter, or no crime. Polk v. State, 417 So. 2d 930, 1982 Miss. LEXIS 2101 (Miss. 1982).

Evidence presented jury question as to whether accused fired the shot in his necessary self-defense at a time when he was in danger, either real or apparent, of losing his life or sustaining great bodily harm at the hands of the victim. Pickert v. State, 234 Miss. 513, 106 So. 2d 681, 1958 Miss. LEXIS 525 (Miss. 1958).

The testimony of accused, charged with murder of his wife, which contained many contradictions as to material matters, as well as the physical facts and the contradiction of the accused by other credible witnesses in particular matters, clearly established that the accused was not entitled to a peremptory instruction under the rule that where the defendant or his witnesses are the only eyewitnesses to the homicide their version must be accepted unless substantially contradicted in material particulars by credible witnesses, physical facts, or facts of common knowledge. Murphy v. State, 232 Miss. 424, 99 So. 2d 595, 1958 Miss. LEXIS 289 (Miss. 1958).

In a prosecution of a husband for the killing of his wife, state’s evidence, including testimony with reference to the accused’s anger at being served with a summons in wife’s divorce action, his prior purchase of a pistol and bullets, his entry without invitation into his father-in-law’s home where the wife was living, the location of her body in the room with the fatal shot behind her right ear, and the accused’s statements, made a jury issue as to whether accused shot his wife with an intentional design to do so, as against accused’s contention that he had accidentally shot her while shooting at his father-in-law. Dykes v. State, 232 Miss. 379, 99 So. 2d 602, 1957 Miss. LEXIS 484 (Miss. 1957).

Where there was both circumstantial and direct evidence, and there was some conflict in the testimony of the witnesses, the question of whether or not the accused was the man who fired the shot that killed the deceased was a question for the determination of the jury. Freeman v. State, 228 Miss. 687, 89 So. 2d 716, 1956 Miss. LEXIS 564 (Miss. 1956).

State’s proof that accused without cause or justification cruelly and brutally beat his wife with an ax handle and slab of wood and choked her to such an extent as to cause her death by strangulation was sufficient to take the question of the accused’s guilt to the jury, where the accused’s sole defense was intoxication, and the evidence as to this issue was in conflict. Jackson v. State, 228 Miss. 604, 89 So. 2d 626, 1956 Miss. LEXIS 552 (Miss. 1956).

Evidence that accused without cause or justification cruelly and brutally beat his wife with an axe handle and slab of wood and choked her to such an extent as to cause her death by strangulation made a jury question as to the guilt of the accused, whose sole defense was intoxication, and the evidence as to this was conflicting. Jackson v. State, 228 Miss. 604, 89 So. 2d 626, 1956 Miss. LEXIS 552 (Miss. 1956).

Testimony of doctor in response to hypothetical question, embodying the material facts in the case, to the effect that he did not believe accused knew the difference between right and wrong, was erroneously excluded, since it was for the jury to determine whether such testimony, and similar testimony of accused’s father, was such as to be calculated to raise a reasonable doubt as to whether accused was of such mental condition as to be able to distinguish between right and wrong at the time he shot and killed his wife. Lewis v. State, 209 Miss. 110, 46 So. 2d 78, 1950 Miss. LEXIS 365 (Miss. 1950).

Ordinarily, whether a homicide is murder or manslaughter is a question for the jury. Anderson v. State, 199 Miss. 885, 25 So. 2d 474, 1946 Miss. LEXIS 258 (Miss. 1946).

Whether accused, killing a visitor at her home in ejecting him therefrom after forbidding him to re-enter, used more force than reasonably appeared necessary for that purpose, or whether she killed decedent in what reasonably appeared to be in her necessary self-defense, were questions for the jury to determine. Bangren v. State, 196 Miss. 887, 17 So. 2d 599, 1944 Miss. LEXIS 264 (Miss. 1944), overruled, Ferrell v. State, 733 So. 2d 788, 1999 Miss. LEXIS 87 (Miss. 1999).

In prosecution for murder incident to defendant’s alleged battering of infant, defendant’s testimony as only witness to baby’s death was materially contradicted by physical facts and circumstances in evidence, as indicated by photographs and medical testimony and, under Weathersby v. State (1933) 164 Miss 898, 147 So2d 481, matter became question for jury and court was not required to direct verdict for defendant. Wetz v. State, 503 So. 2d 803, 1987 Miss. LEXIS 2362 (Miss. 1987).

Jury have wide discretion where quality of act in issue; verdict for manslaughter upon indictment for murder held authorized by the evidence. Woodward v. State, 130 Miss. 611, 94 So. 717, 1922 Miss. LEXIS 232 (Miss. 1922).

Whether killing in quarrel was in self-defense, held question for jury. Staiger v. State, 110 Miss. 557, 70 So. 690, 1915 Miss. LEXIS 72 (Miss. 1915).

15. Mutual combat; dueling.

A man commits murder when he kills another in a duel, whether formal or extemporary, and however fairly conducted. Thomas v. State, 61 Miss. 60, 1883 Miss. LEXIS 72 (Miss. 1883).

To make the killing of an adversary in a duel necessarily murder, in such case the weapon must have been procured for the combat, or the accused must have provoked the difficulty or entered into it with an intention to use the weapon. Long v. State, 52 Miss. 23, 1876 Miss. LEXIS 160 (Miss. 1876).

If a party enter into a mutual combat dangerously armed, and fight under an undue advantage and kill his adversary, it is murder. Price v. State, 36 Miss. 531, 1858 Miss. LEXIS 123 (Miss. 1858), limited, Helm v. State, 66 Miss. 537, 6 So. 322, 1889 Miss. LEXIS 144 (Miss. 1889).

The fact that the accused sought the difficulty and brought it about, being armed with a deadly weapon with which he killed the deceased, does not necessarily render him guilty of murder; for if he commence the contest, intending at the outset to inflict little or no violence on his antagonist, he may justifiably slay him if the danger of his own destruction be imminent and impending and otherwise unavoidable; or, when the necessity to kill does not exist, if the killing be done not in pursuance of a premeditated design, but on a sudden quarrel, it will, in such case, amount to manslaughter only. Cotton v. State, 31 Miss. 504, 1856 Miss. LEXIS 108 (Miss. 1856).

16. Killing of one other than person intended.

In a murder case, the trial court correctly denied defendant’s jury instruction because defendant’s theory of the case was based upon his own testimony that he intentionally fired each shot, and there was no evidence from which a jury could have found that he fired the shots accidentally. Further, there was sufficient evidence to find that defendant shot into the trailer house with a deliberate design to kill; although there was sufficient evidence that defendant had a deliberate design to kill his brother, defendant’s intent to kill his brother was transferred to the sister-in-law, the actual victim. Walden v. State, 29 So.3d 17, 2008 Miss. App. LEXIS 462 (Miss. Ct. App. 2008), cert. denied, 29 So.3d 774, 2010 Miss. LEXIS 105 (Miss. 2010).

Where there is an express intent to kill or do grievous bodily harm directed toward one person and another is killed unintentionally by the act, it is murder at common law. Dykes v. State, 232 Miss. 379, 99 So. 2d 602, 1957 Miss. LEXIS 484 (Miss. 1957).

The transferred intent doctrine does not apply where it appears that the accused in shooting or striking at another person with intent to kill, unintentionally kills another, if the accused has previously been acquitted of the death of the person at whom he was shooting or striking, and such acquittal will bar a subsequent prosecution of the accused for the murder of the other person, unless the killing of the other person was not accidental, but an independent separate offense arising out of the transaction. In the latter event the accused may be successively prosecuted for two offenses. Dykes v. State, 232 Miss. 379, 99 So. 2d 602, 1957 Miss. LEXIS 484 (Miss. 1957).

Accidental killing of human being other than one intended constitutes “murder,” where there is express malice and intent to kill. Ross v. State, 158 Miss. 827, 131 So. 367, 1930 Miss. LEXIS 119 (Miss. 1930).

17. Death in consequence of improper treatment of wound.

Where act of accused contributed to death of victim, he was not relieved of responsibility by fact that other causes also contributed to death, such as maltreatment by physician who administered treatment in emergency room. Fairman v. State, 513 So. 2d 910, 1987 Miss. LEXIS 2791 (Miss. 1987).

If death ensue from a wound given in malice, but not of its nature mortal, but of which, being neglected or mismanaged, the party die, this will not excuse the party who gave it; but he will be held guilty of murder, unless it clearly and certainly appear, either by the evidence of the state or defendant, that the neglect and want of care on the part of the deceased, and not the wound itself, was the cause of his death. Quinn v. State, 106 Miss. 844, 64 So. 738, 1914 Miss. LEXIS 26 (Miss. 1914).

18. Murder for hire.

Where the jury is properly instructed to determine whether a secondary killing was reasonably anticipated to be necessary in order to accomplish the contract killing, then that secondary killing is also part of the contract and the absent principal can be found guilty of capital murder. Saunders v. State, 733 So. 2d 325, 1998 Miss. App. LEXIS 1115 (Miss. Ct. App. 1998).

19. Homicide by persons joining in commission of felony.

Although defendant, who was convicted of murder while engaged in the crime of drive-by shooting and for shooting into an occupied dwelling, argued that the State failed to prove that he willfully discharged a pistol into a dwelling, the evidence amply supported the jury’s finding that defendant willfully shot into an occupied dwelling. Two witnesses testified that defendant expressed his intent to shoot at the victim’s house and that he admitted shooting the victim, and the victim’s girlfriend identified defendant’s voice during an altercation that took place outside the victim’s home immediately prior to the shooting. Boyd v. State, 977 So. 2d 329, 2008 Miss. LEXIS 144 (Miss. 2008).

In order to obtain a valid conviction of a defendant for felony murder while engaged in the crime of drive-by shooting, the State is required to prove all essential elements of both Miss. Code Ann. §97-3-19(1)(c) and Miss. Code Ann. §97-3-109(1). Thus, the State is required to prove under Miss. Code Ann. §97-3-109(1) that the defendant caused serious bodily injury to another purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life by discharging a firearm while in or on a vehicle. Boyd v. State, 977 So. 2d 329, 2008 Miss. LEXIS 144 (Miss. 2008).

Post-conviction relief was properly denied where: (1) trial counsel did not err in failing to seek a change of venue because of pretrial publicity; (2) petitioner’s culpability as a capital murder accomplice would not be reduced by testimony of a clinical psychologist who opined that petitioner was not by nature a violent person; (3) although the aggravating circumstances which invoked the death penalty were not charged in the indictment, the fact that the capital murder statute listed the possible aggravating circumstances refuted the contention that petitioner had inadequate notice; (4) because the record supported no findings of error, there could be no prejudicial cumulative error; (5) use of the underlying felony as an aggravating sentencing factor did not constitute impermissible double prejudice; and (6) other issues raised on direct appeal could not be considered on collateral appeal under Miss. Code Ann. §99-39-21. Thong Le v. State, 967 So. 2d 627, 2007 Miss. LEXIS 452 (Miss. 2007), cert. denied, 552 U.S. 1300, 128 S. Ct. 1747, 170 L. Ed. 2d 547, 2008 U.S. LEXIS 2913 (U.S. 2008).

Where a shooting was committed during a robbery, the evidence supported the jury’s finding of an aggravating circumstance under Miss. Code Ann. §99-19-101(5)(d), even if defendant was not the shooter; whether or not defendant intended to kill the victim was irrelevant because Miss. Code Ann. §97-3-19(2)(e) defines capital murder, in part, as the killing of a human being when done with or without any design to effect death, by any person engaged in the commission of the crime of robbery. Dycus v. State, 875 So. 2d 140, 2004 Miss. LEXIS 366 (Miss. 2004), vacated, 544 U.S. 901, 125 S. Ct. 1589, 161 L. Ed. 2d 271, 2005 U.S. LEXIS 2212 (U.S. 2005).

State was not required to prove that murder was committed in furtherance of both underlying felonies to obtain conviction for felony murder, although indictment charged defendant with murder during course of kidnapping and robbery. Wilcher v. State, 697 So. 2d 1123, 1997 Miss. LEXIS 101 (Miss. 1997).

Capital murder defendant cannot be convicted of both capital murder and underlying felony, as defendant cannot be twice prosecuted for the same actions. Wilcher v. State, 697 So. 2d 1087, 1997 Miss. LEXIS 100 (Miss. 1997), cert. denied, 522 U.S. 1053, 118 S. Ct. 705, 139 L. Ed. 2d 647, 1998 U.S. LEXIS 149 (U.S. 1998).

Fact that indictment charged defendant with murder during course of kidnapping and with robbery did not require state to prove that offense was committed in furtherance of both underlying felonies in order to support death penalty. Wilcher v. State, 697 So. 2d 1087, 1997 Miss. LEXIS 100 (Miss. 1997), cert. denied, 522 U.S. 1053, 118 S. Ct. 705, 139 L. Ed. 2d 647, 1998 U.S. LEXIS 149 (U.S. 1998).

Aggravating factor of murder committed during course of robbery is constitutional. Wilcher v. State, 697 So. 2d 1087, 1997 Miss. LEXIS 100 (Miss. 1997), cert. denied, 522 U.S. 1053, 118 S. Ct. 705, 139 L. Ed. 2d 647, 1998 U.S. LEXIS 149 (U.S. 1998).

Felony-murder aggravator is not disproportionate within meaning of Eighth Amendment even though unintentional felony-murder is punishable by death while premeditated murder, standing alone, is not, as not every defendant eligible for death penalty will have committed murder while in the course of statutorily enumerated felonies, so that felony-murder aggravator genuinely narrows class of defendants eligible for the death penalty. Wilcher v. State, 697 So. 2d 1087, 1997 Miss. LEXIS 100 (Miss. 1997), cert. denied, 522 U.S. 1053, 118 S. Ct. 705, 139 L. Ed. 2d 647, 1998 U.S. LEXIS 149 (U.S. 1998).

During penalty phase of capital murder prosecution involving murder of child victim while engaging in felonious abuse and/or battery, it was proper to instruct jury that it could consider as aggravating factor that murder had occurred during commission of crime of felonious abuse and/or battery of child. Brown v. State, 690 So. 2d 276, 1996 Miss. LEXIS 681 (Miss. 1996), cert. denied, 522 U.S. 849, 118 S. Ct. 136, 139 L. Ed. 2d 85, 1997 U.S. LEXIS 5165 (U.S. 1997), rev'd, — So.3d —, 2017 Miss. LEXIS 524 (Miss. 2017).

Capital murder defense counsel did not provide ineffective assistance of counsel in failing at punishment stage to object to robbery aggravator on ground that aggravating circumstance unconstitutionally duplicated element of offense of capital murder because jury found that defendant committed capital murder in commission of crime of robbery; Supreme Court had already rejected that contention and, thus, there was no reason for counsel to object to underlying felony being counted as aggravator. Foster v. State, 687 So. 2d 1124, 1996 Miss. LEXIS 216 (Miss. 1996), cert. denied, 521 U.S. 1108, 117 S. Ct. 2488, 138 L. Ed. 2d 996, 1997 U.S. LEXIS 3936 (U.S. 1997).

Capital murder defense counsel did not provide ineffective assistance of counsel in failing at sentencing phase to object to double use of robbery and pecuniary gain aggravating circumstances; defendant’s trial took place before effective date of later state Supreme Court decision prospectively prohibiting double counting for same conduct and, thus, defense counsel had no basis to object. Foster v. State, 687 So. 2d 1124, 1996 Miss. LEXIS 216 (Miss. 1996), cert. denied, 521 U.S. 1108, 117 S. Ct. 2488, 138 L. Ed. 2d 996, 1997 U.S. LEXIS 3936 (U.S. 1997).

Defendant charged with capital offense of killing while engaged in commission of child abuse or battery was not entitled to lesser included offense instruction on manslaughter based on killing while committing a felony. Jackson v. State, 684 So. 2d 1213, 1996 Miss. LEXIS 7 (Miss. 1996), cert. denied, 520 U.S. 1215, 117 S. Ct. 1703, 137 L. Ed. 2d 828, 1997 U.S. LEXIS 2937 (U.S. 1997).

Existence of two separate statutes under which defendant could be prosecuted for killing during course of committing felonious child abuse, only one of which could result in capital murder conviction, did not give prosecutor impermissible discretion to impose death penalty, in violation of Eighth Amendment, where jury was instructed that it could impose life sentence. Jackson v. State, 684 So. 2d 1213, 1996 Miss. LEXIS 7 (Miss. 1996), cert. denied, 520 U.S. 1215, 117 S. Ct. 1703, 137 L. Ed. 2d 828, 1997 U.S. LEXIS 2937 (U.S. 1997).

Whether felonious child abuse statute was void for vagueness and whether jury instructions did not sufficiently narrow definition of child abuse was procedurally barred, where defendant failed to object at trial. Jackson v. State, 684 So. 2d 1213, 1996 Miss. LEXIS 7 (Miss. 1996), cert. denied, 520 U.S. 1215, 117 S. Ct. 1703, 137 L. Ed. 2d 828, 1997 U.S. LEXIS 2937 (U.S. 1997).

Instructing jury on armed robbery, after indictment charged robbery, constituted formal rather than substantive amendment to indictment, and thus any variance which existed between indictment and proof was harmless error, where all defenses and evidence available to defendant remained equally applicable, and jury could not have convicted defendant of armed robbery and found him not guilty of robbery, inasmuch as armed robbery is simply robbery with weapon. Davis v. State, 684 So. 2d 643, 1996 Miss. LEXIS 292 (Miss. 1996), cert. denied, 520 U.S. 1170, 117 S. Ct. 1437, 137 L. Ed. 2d 544, 1997 U.S. LEXIS 2295 (U.S. 1997).

In prosecution for capital offense of murder during commission of robbery, jury instruction given regarding sequence of the robbery and murder did not sufficiently instruct jury on elements of underlying crime of robbery, for purposes of determining whether failure to specifically instruct jury on elements of robbery constituted reversible error. Hunter v. State, 684 So. 2d 625, 1996 Miss. LEXIS 288 (Miss. 1996).

State had duty, in prosecution for capital offense of murder during commission of robbery, to ensure that jury was properly instructed on elements of underlying crime of robbery, and therefore failure to give such instruction constituted reversible error, even though defendant did not present acceptable robbery instruction. Hunter v. State, 684 So. 2d 625, 1996 Miss. LEXIS 288 (Miss. 1996).

Sentencing court in bifurcated capital murder prosecution properly allowed jury to consider, as aggravating circumstance, whether capital offense was committed while defendant was engaged in commission of armed robbery, notwithstanding fact that robbery was also element of capital murder for which defendant was being prosecuted. Brown v. State, 682 So. 2d 340, 1996 Miss. LEXIS 427 (Miss. 1996), cert. denied, 520 U.S. 1127, 117 S. Ct. 1271, 137 L. Ed. 2d 348, 1997 U.S. LEXIS 1821 (U.S. 1997).

Convictions for both murder during course of armed robbery and grand larceny violated double jeopardy prohibition against multiple punishments for same offense, where robbery charge, which was used to elevate case to capital murder, encompassed elements of grand larceny. Holly v. State, 671 So. 2d 32, 1996 Miss. LEXIS 15 (Miss.), cert. denied, 518 U.S. 1025, 116 S. Ct. 2565, 135 L. Ed. 2d 1082, 1996 U.S. LEXIS 4179 (U.S. 1996).

Sexual battery could be used as underlying felony, to elevate murder to level of capital murder, and could be used again for sentencing purposes as an aggravator to support imposition of death penalty, without violating prohibition against cruel and unusual punishment. Walker v. State, 671 So. 2d 581, 1995 Miss. LEXIS 494 (Miss. 1995), cert. denied, 519 U.S. 1011, 117 S. Ct. 518, 136 L. Ed. 2d 406, 1996 U.S. LEXIS 7236 (U.S. 1996).

Robbery is not a component of murder and is, therefore, not a lesser included offense of murder. Ballenger v. State, 667 So. 2d 1242, 1995 Miss. LEXIS 451 (Miss. 1995), cert. denied, 518 U.S. 1025, 116 S. Ct. 2565, 135 L. Ed. 2d 1082, 1996 U.S. LEXIS 4177 (U.S. 1996).

Use of robbery as both aggravating factor in sentencing and as essential element of crime of capital murder did not unconstitutionally fail to narrow class of death eligible offenders; required narrowing had been done legislatively. Ballenger v. State, 667 So. 2d 1242, 1995 Miss. LEXIS 451 (Miss. 1995), cert. denied, 518 U.S. 1025, 116 S. Ct. 2565, 135 L. Ed. 2d 1082, 1996 U.S. LEXIS 4177 (U.S. 1996).

A defendant’s right to be shielded from double jeopardy was violated where the defendant was convicted and punished for both kidnapping under §97-3-53 and capital murder while engaged in the crime of kidnapping under subsection (2)(e) of this section; since the defendant was indicted, tried and found guilty of capital murder under subsection (2)(e) of this section with the kidnapping as the underlying felony, and thereafter exposed to trial for his life, the State was precluded from punishing him further for the §97-3-53 kidnapping. Meeks v. State, 604 So. 2d 748, 1992 Miss. LEXIS 400 (Miss. 1992).

In a prosecution for murder while engaged in the crime of robbery, the jury could reasonably have found that the defendant intended the killings and intended that lethal force be used, for purposes of imposing the death penalty, where the defendant actually participated in the robbery with his accomplice and was present in some role while both murders were committed. Minnick v. State, 551 So. 2d 77, 1988 Miss. LEXIS 612 (Miss. 1988), rev'd, 498 U.S. 146, 111 S. Ct. 486, 112 L. Ed. 2d 489, 1990 U.S. LEXIS 6118 (U.S. 1990), overruled, Willie v. State, 585 So. 2d 660, 1991 Miss. LEXIS 454 (Miss. 1991).

Defendant, who was indicted under subsection (2)(a) of this section, had no standing to argue that felony murder provision in subsection (2)(e) of this section was unconstitutional, as he was never charged with that crime. Johnson v. Thigpen, 449 So. 2d 1207, 1984 Miss. LEXIS 1713 (Miss. 1984).

Subsection (2)(e) of this section is not constitutionally infirm even though it permits verdict of guilty absent finding of design to effect death and allows imputation of intent from one defendant to another, although applicable standard for determination of guilt must not be confused with constitutionally mandated standard for imposition of capital punishment, such standard precluding capital punishment based upon imputed intent. Bullock v. Lucas, 743 F.2d 244, 1984 U.S. App. LEXIS 18361 (5th Cir. Miss. 1984), modified, 474 U.S. 376, 106 S. Ct. 689, 88 L. Ed. 2d 704, 1986 U.S. LEXIS 46 (U.S. 1986).

Under subsection (2)(e) of this section a defendant may apparently be convicted of capital murder if someone is killed during the course of a robbery in which he was participating. Furthermore, no murder committed during the course of a robbery can be simple murder. Bell v. Watkins, 692 F.2d 999, 1982 U.S. App. LEXIS 23546 (5th Cir. Miss. 1982), cert. denied, 464 U.S. 843, 104 S. Ct. 142, 78 L. Ed. 2d 134, 1983 U.S. LEXIS 1426 (U.S. 1983).

Where evidence showed that defendant and his brothers kidnapped the deceased, and during the commission of this crime, she was killed by one of defendant’s brothers alone without any participation by the defendant, defendant could be guilty of no greater crime than manslaughter. Griffin v. State, 293 So. 2d 810, 1974 Miss. LEXIS 1811 (Miss. 1974).

Where the evidence proved a combination or conspiracy entered into by the defendant and others to commit armed robbery, and the victim was thereafter shot to death by a codefendant at a time when all conspirators were present and each was doing his or her assigned part in the conspiracy to rob, the defendant became an accessory to armed robbery before the fact, and under the specific provisions of Code 1942, § 1995 was deemed and considered a principal so that every essential element of the crime of murder listed in Code 1942, § 2215 was proved by the state against the defendant. Alexander v. State, 250 So. 2d 629, 1971 Miss. LEXIS 1185 (Miss. 1971).

Where evidence showed that both defendant and his companion fired shots at deceased, defendant was properly convicted of murder, though fatal shot may have been fired by companion. Wilkerson v. State, 209 Miss. 360, 46 So. 2d 807, 1950 Miss. LEXIS 399 (Miss. 1950).

Where the evidence disclosed that the murder took place during the robbery of deceased by accused and others, the fact that the accused did not himself strike the fatal blow but that it was struck by one of his confederates as an aid in carrying out the common purpose to rob, did not relieve him of responsibility therefore. Carrol v. State, 183 Miss. 1, 183 So. 703, 1938 Miss. LEXIS 211 (Miss. 1938).

Evidence held to sustain conviction for murder of officer while attempting arrest of parties who had committed robbery; refusal of requested instruction that defendant could not be convicted of murder unless he fired fatal shot held not erroneous. Hurd v. State, 137 Miss. 178, 102 So. 293, 1924 Miss. LEXIS 230 (Miss. 1924).

Where two parties aid in commission of homicide, it is not law that neither can be convicted unless shown beyond reasonable doubt that he, by his own act, did the killing. McCoy v. State, 91 Miss. 257, 44 So. 814, 1907 Miss. LEXIS 147 (Miss. 1907).

20. Homicide by commission of dangerous act.

Evidence was sufficient to convict defendant of depraved-heart murder because he fired a gun into a fleeing group of people, which was a classic case of this offense. Humphries v. State, 18 So.3d 305, 2009 Miss. App. LEXIS 606 (Miss. Ct. App. 2009).

Depraved-heart murder as defined in subsection (1)(b) of this section and culpable-negligence manslaughter as defined in §97-3-47 are distinguishable simply by degree of mental state of culpability, in that depraved-heart murder involves a higher degree of recklessness from which malice or deliberate design may be implied; thus, an instruction on depraved-heart murder did not amount to a “denial, or substantial diminishing, of a manslaughter consideration” by the jury. Windham v. State, 602 So. 2d 798, 1992 Miss. LEXIS 227 (Miss. 1992).

The evidence justified an instruction on, and a finding of, depraved-heart murder where the defendant used a hammer to assault a 79-year-old, one-armed man, who was running away, and his 78-year-old wife, during a dispute over a debt he owed them. Windham v. State, 602 So. 2d 798, 1992 Miss. LEXIS 227 (Miss. 1992).

An act which poses a risk to only one individual and which results in that individual’s death may be deemed depraved-heart murder within the meaning of subsection (1)(b) of this section; a distinction between the risk of death to one particular individual and the risk of death to more than one individual is senseless and outmoded and was properly discarded. Windham v. State, 602 So. 2d 798, 1992 Miss. LEXIS 227 (Miss. 1992).

The Weathersby rule applies with equal force in a case involving a killing “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” as well as one in which the defendant is charged with murder by deliberate design. Blanks v. State, 547 So. 2d 29, 1989 Miss. LEXIS 322 (Miss. 1989).

A defendant who seized an officer’s gun and fired it recklessly and at random engaged in the type of conduct contemplated by subsection (1)(b) of this section, which provides that killing is murder 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. Wheeler v. State, 536 So. 2d 1341, 1988 Miss. LEXIS 605 (Miss. 1988).

Having been indicted separately for both murder, under this section, and for felony of shooting into occupied building, under §97-37-29, defendant who was tried on murder indictment alone, and who had been convicted only of manslaughter, could not be prosecuted in second trial for shooting felony, since, under circumstances of case, it was lesser offense that was included in murder charge. Davis v. Herring, 800 F.2d 513, 1986 U.S. App. LEXIS 31243 (5th Cir. Miss. 1986).

Where the trial judge in a murder prosecution implied that no murder committed during the course of a robbery could be simple murder and implied that it became, by definition, capital murder under this section, the appellate court would hold that theory of trial judge was flawed since it determined what instruction would be granted at the request of a capital murder defendant on the basis of a presumption that he had already been found guilty of the underlying felony. Fairchild v. State, 459 So. 2d 793, 1984 Miss. LEXIS 1983 (Miss. 1984).

Evidence showing killing by shooting with pistol sustained murder conviction under statutory provision defining murder as killing in commission of act imminently dangerous to others, and evincing depraved heart regardless of human life, though without premeditated design to effect death. Jones v. State, 169 Miss. 292, 152 So. 879, 1934 Miss. LEXIS 43 (Miss. 1934).

Where defendant while drunk fired pistol in the highway and the bullet glanced and struck and killed deceased, it was not manslaughter unless killing was the natural or necessary consequence. Dixon v. State, 104 Miss. 410, 61 So. 423, 1913 Miss. LEXIS 40 (Miss. 1913).

It was fatal error to refuse instruction that malice aforethought was necessary element of murder. Burnett v. State, 92 Miss. 826, 46 So. 248, 1908 Miss. LEXIS 225 (Miss. 1908).

Under indictment for assault with intent to kill and murder a named person where proof showed defendant shot into wagon occupied by such person and others, instruction that jury may convict without proof of premeditated design to kill the person named is fatally erroneous. Gentry v. State, 92 Miss. 141, 45 So. 721, 1907 Miss. LEXIS 26 (Miss. 1907).

21. Killing as manslaughter.

In defendant’s trial for murder, defendant’s act of shooting the victim in the head at short range did not qualify as heat of passion of manslaughter because while the conversation might have been heated with defendant’s mother, the victim was a mere bystander to it; the victim’s statement that defendant and defendant’s mother needed to quit fighting did not cause a normal mind to be roused to the extent that reason was overthrown and that passion usurped the mind destroying judgment. Mullen v. State, 986 So. 2d 320, 2007 Miss. App. LEXIS 605 (Miss. Ct. App. 2007), cert. denied, 987 So. 2d 451, 2008 Miss. LEXIS 559 (Miss. 2008).

There was sufficient evidence to support a conviction for murder under Miss. Code Ann. §97-3-19(1)(a), rather than manslaughter under Miss. Code Ann. §97-3-35, where the facts showed that defendant had been having domestic problems with his wife, he cashed a check for a large sum of money, and then went to her work where he shot her to death. Bennett v. State, 956 So. 2d 964, 2006 Miss. App. LEXIS 675 (Miss. Ct. App. 2006), cert. denied, 2007 Miss. LEXIS 293 (Miss. May 17, 2007).

Where defendant was indicted for murder under Miss. Code Ann. §97-3-19(1)(a), and the State failed to prove the charge, 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 offense of manslaughter, under Miss. Code Ann. §97-3-35. State v. Shaw, 880 So. 2d 296, 2004 Miss. LEXIS 1027 (Miss. 2004).

Manslaughter indictment that stated the date and place of the crime, specifically named both victims, and alleged that defendant committed the crime with others while he and the others were committing the felony crime of aggravated assault was sufficient to inform the defendant of the charge against him. Stevens v. State, 2001 Miss. LEXIS 301 (Miss. Oct. 31, 2001).

Having been indicted separately for both murder, under this section, and for felony of shooting into occupied building, under §97-37-29, defendant who was tried on murder indictment alone, and who had been convicted only of manslaughter, could not be prosecuted in second trial for shooting felony, since, under circumstances of case, it was lesser offense that was included in murder charge. Davis v. Herring, 800 F.2d 513, 1986 U.S. App. LEXIS 31243 (5th Cir. Miss. 1986).

Capital sentencing scheme in which prosecutor has discretion as to which murders he can try as capital offenses did not grant unfettered discretion to prosecutor and did not violate constitutional protections, where discretion was statutorily limited, manslaughter instruction had to be given if warranted by facts, and imposition of death penalty was channelled through weighing of aggravating and mitigating circumstances. Berry v. State, 703 So. 2d 269, 1997 Miss. LEXIS 639 (Miss. 1997).

Defendant charged with capital offense of killing while engaged in commission of child abuse or battery was not entitled to lesser included offense instruction on manslaughter based on killing while committing a felony. Jackson v. State, 684 So. 2d 1213, 1996 Miss. LEXIS 7 (Miss. 1996), cert. denied, 520 U.S. 1215, 117 S. Ct. 1703, 137 L. Ed. 2d 828, 1997 U.S. LEXIS 2937 (U.S. 1997).

In capital murder trial based on allegation that defendant killed child victim while engaged in commission of child abuse or battery, evidence that defendant used victim as shield while struggling with victim’s mother was insufficient to support heat of passion manslaughter instruction, in view of evidence that defendant planned robbery of victim’s home, had told victim’s mother that he was going to kill her and her family, and did not stab victim until after struggle with mother. Jackson v. State, 684 So. 2d 1213, 1996 Miss. LEXIS 7 (Miss. 1996), cert. denied, 520 U.S. 1215, 117 S. Ct. 1703, 137 L. Ed. 2d 828, 1997 U.S. LEXIS 2937 (U.S. 1997).

A trial court erred in refusing a murder defendant’s proffered lesser included offense manslaughter instructions where, taking the evidence in the light most favorable to the defendant, the jury could have found that the defendant lacked the requisite intent of malice aforethought to assist in the murder but that he did participate in kidnapping the victim. Welch v. State, 566 So. 2d 680, 1990 Miss. LEXIS 152 (Miss. 1990).

The trial court in a capital murder prosecution erred reversibly in refusing defendant’s requested instruction on manslaughter, where, although a jury might have properly found that the threat of death or serious bodily injury had not been imminently pending and therefore might have rejected defendant’s self-defense theory, the jury might nevertheless, from the same facts, have found defendant not guilty of capital murder on the basis that the fatal shot had been in response to a shot first fired at him by an officer in a tense, sudden confrontation arising without the design of either party, thereby reducing the offense to manslaughter with a corresponding reduction in sentence. Lanier v. State, 450 So. 2d 69, 1984 Miss. LEXIS 1695 (Miss. 1984).

Manslaughter charge not error where parties engaged in fight immediately prior to killing done in heat of passion and without malice. Springer v. State, 129 Miss. 589, 92 So. 633, 1922 Miss. LEXIS 72 (Miss. 1922).

One may have felonious design to kill and kill in the heat of passion, which is manslaughter. Dye v. State, 127 Miss. 492, 90 So. 180, 1921 Miss. LEXIS 249 (Miss. 1921).

22. Indictment.

Defendant’s second indictment was sufficient because it specified that he committed burglary by breaking and entering the victim’s trailer with the intent to commit the crime of assault, with or without any design to effect the death of the victim; and it alleged each offense necessary to charge defendant with capital murder: assault, burglary, and, ultimately, murder. Clark v. State, 233 So.3d 832, 2017 Miss. App. LEXIS 129 (Miss. Ct. App.), cert. denied, — So.3d —, 2017 Miss. LEXIS 518 (Miss. 2017).

Although defendant maintained that the second indictment should have been dismissed because the crimes of burglary and capital murder were both predicated on his commission of an assault, which was subject to a two-year statute of limitations for prosecution, defendant’s argument was without merit as the passage of time would never bar prosecution against any person for the offenses of murder, aggravated assault, or burglary. Clark v. State, 233 So.3d 832, 2017 Miss. App. LEXIS 129 (Miss. Ct. App.), cert. denied, — So.3d —, 2017 Miss. LEXIS 518 (Miss. 2017).

Defendant’s capital-murder charge was sufficiently pleaded, and the indictment was not defective, because the indictment identified the underlying felony as robbery and listed the section of the capital murder statute under which defendant was charged. Furthermore, although defendant contended that the indictment for capital murder was defective because it omitted the phrase “malice aforethought,” the capital murder statute did not require that the language “malice aforethought” be in the indictment. Burns v. State, 187 So.3d 1080, 2016 Miss. App. LEXIS 138 (Miss. Ct. App. 2016).

Defendant’s indictment was not fatally defective; he was charged with capital murder as a result of felonious child abuse, which was a crime at the time of the commission of the offense and at the time of his indictment. Cozart v. State, 226 So.3d 639, 2016 Miss. App. LEXIS 270 (Miss. Ct. App. 2016).

Defendant’s conviction for capital murder was reversed because the trial court erred in amending defendant’s indictment to charge him as a violent habitual offender because the State presented no evidence supporting its allegation that one of defendant’s prior burglaries actually involved violence; and the State did not allege with particularity the nature or description of the offense constituting the previous convictions and did not afford defendant a fair opportunity to present a defense to the habitual-offender charge. Burleson v. State, 166 So.3d 499, 2015 Miss. LEXIS 243 (Miss. 2015).

Indictment sufficiently identifying robbery under as the underlying offense and listing its statutory section is all that is required to charge capital murder premised on robbery; because petitioner’s indictment identified the underlying felony as robbery and listed the statutory section under which he was charged, the capital murder charge was sufficiently pleaded and the indictment was not defective. Randall v. State, 148 So.3d 686, 2014 Miss. App. LEXIS 575 (Miss. Ct. App. 2014).

Defendant juvenile’s indictment was not defective because the capital-murder statute was cited in the heading of the indictment but not the body of the indictment since the indictment listed the appropriate section and subsection in the heading and tracked the language of the statute in the body, and Miss. Code Ann. §99-17-20 did not specify where the charged section and subsection number had to appear in the indictment. Hye v. State, 162 So.3d 818, 2013 Miss. App. LEXIS 292 (Miss. Ct. App. 2013), aff'd in part, vacated in part, 162 So.3d 750, 2015 Miss. LEXIS 69 (Miss. 2015).

Indictment for robbery was appropriate because defendant’s due process rights were not violated as the indictment was not required to have specified the items alleged to have been taken in the robbery. Batiste v. State, 121 So.3d 808, 2013 Miss. LEXIS 295 (Miss. 2013), cert. denied, 572 U.S. 1117, 134 S. Ct. 2287, 189 L. Ed. 2d 178, 2014 U.S. LEXIS 3424 (U.S. 2014).

Defendant was placed in double jeopardy when he was convicted on two counts of armed robbery and two counts of capital murder for killing while engaged in the commission of those same two armed robberies; although there were several other armed robbery victims present, only the two murder victims were named in the indictment. Rowland v. State, 98 So.3d 1032, 2012 Miss. LEXIS 484 (Miss. 2012), overruled in part, Carson v. State, 212 So.3d 22, 2016 Miss. LEXIS 473 (Miss. 2016).

Court rejected defendant’s argument that his death sentence has to be vacated because the indictment failed to include a statutory aggravating factor or the mens rea standard required for capital murder. When defendant was charged with capital murder, he was put on notice that the death penalty might result, what aggravating factors might be used, and the mens rea standard that was required. Goff v. State, 14 So.3d 625, 2009 Miss. LEXIS 273 (Miss. 2009), cert. denied, 559 U.S. 944, 130 S. Ct. 1513, 176 L. Ed. 2d 122, 2010 U.S. LEXIS 1251 (U.S. 2010).

Indictment against defendant alleged the essential elements of murder, even though the initial indictment did not allege that he acted out of “deliberate design,” because it alleged “malice aforethought.” Amending the indictment from “malice aforethought” to “deliberate design” was one of form, not substance, and the two terms were synonymous. Gilbert v. State, 934 So. 2d 330, 2006 Miss. App. LEXIS 241 (Miss. Ct. App. 2006).

Defendant contended that the indictment failed to charge all of the elements necessary to impose the death penalty under Mississippi law, but his argument failed because (1) pursuant to Miss. Code Ann. §99-19-101(7), a jury only needed to find that defendant killed, and did not need a true mens rea; (2) under Miss. Code Ann. §99-19-101(5), aggravating circumstances existed; and (3) there was no increase in the maximum penalty because the maximum penalty for killing while engaged in the commission of sexual battery was death as the crime was defined as capital murder under Miss. Code Ann. §97-3-19(2)(e), and, pursuant to Miss. Code Ann. §1-3-4, a capital murder was a crime punishable by death. Havard v. State, 928 So. 2d 771, 2006 Miss. LEXIS 90 (Miss. 2006), cert. denied, 549 U.S. 1119, 127 S. Ct. 931, 166 L. Ed. 2d 716, 2007 U.S. LEXIS 153 (U.S. 2007).

Capital murder indictment was not deficient for failing to list the aggravating factors the State intended to prove at sentencing; the death penalty statute clearly states the only aggravating circumstances that may be relied upon by the prosecution in seeking the death penalty, so that every time someone is charged with capital murder he or she is put on notice that the death penalty may result. Brown v. State, 890 So. 2d 901, 2004 Miss. LEXIS 1104 (Miss. 2004), cert. denied, 544 U.S. 981, 125 S. Ct. 1842, 161 L. Ed. 2d 735, 2005 U.S. LEXIS 3424 (U.S. 2005).

Felony murder as a capital crime by definition requires that there be two felonies, the homicide being the intentional or unintentional product of the other felony. The elements set out in the indictment against defendant only charged one felony, that defendant killed the victim by setting the victim on fire, and that act was not a capital offense; thus, the indictment as written did not charge capital murder, and reversal and remand of defendant to the custody of the sheriff pending the calling of a new grand jury was required. Buckley v. State, 875 So. 2d 1110, 2004 Miss. App. LEXIS 586 (Miss. Ct. App. 2004).

Indictment charging defendant with murder using the language of the statute was not deficient; indictment did not have to allege which specific theory defendant was being charged under. Capnord v. State, 840 So. 2d 826, 2003 Miss. App. LEXIS 236 (Miss. Ct. App. 2003).

Indictment charging defendant with murder that generally tracked the relevant statutory language and contained each element of the crime charged was sufficient to charge defendant with murder even though it omitted the words “although without any premeditated design to effect the death of any particular individual,” as the lack of premeditated design was not an essential element of the offense of depraved-heart murder. Montana v. State, 822 So. 2d 954, 2002 Miss. LEXIS 220 (Miss. 2002).

Indictment for depraved-heart murder that replaced the statutory phrase “without the authority of law” with the word “unlawfully” did not fail to charge defendant with an essential element of that crime, as the terms were synonymous. Turner v. State, 796 So. 2d 998, 2001 Miss. LEXIS 190 (Miss. 2001).

An indictment for capital murder was sufficient, notwithstanding the contention that it failed to identify the essential elements of the underlying felony offense of burglary, as the indictment adequately informed the defendant of the acts underlying the alleged burglary. Lockett v. Anderson, 230 F.3d 695, 2000 U.S. App. LEXIS 25501 (5th Cir. Miss. 2000).

An allegation that the deceased victim was a human being is not an essential element of the indictment. Coffield v. State, 749 So. 2d 215, 1999 Miss. App. LEXIS 508 (Miss. Ct. App. 1999).

Only in capital murder cases predicated upon the felony of burglary will the Supreme Court require a more detailed indictment: to the extent of noticing the defendant with what felony was intended in the burglary. Turner v. State, 732 So. 2d 937, 1999 Miss. LEXIS 61 (Miss.), cert. denied, 528 U.S. 969, 120 S. Ct. 409, 145 L. Ed. 2d 319, 1999 U.S. LEXIS 7156 (U.S. 1999).

Because the original indictment adequately charged the defendant with murder, an amendment including the statutory language of subsection (1)(a) and facts added concerning the weapon used by the defendant were amendments as to form and not of substance. Greenlee v. State, 725 So. 2d 816, 1998 Miss. LEXIS 300 (Miss. 1998).

Mississippi capital murder indictments alleging that defendant entered house “to unlawfully do violence to the persons situated therein” were fatally defective for their failure to state intended felony that comprised charged burglary; “intent to do violence” was not a crime, prosecutor based his argument to support charge of burglary upon that “non-crime,” and jury was instructed that burglary charge could be predicated upon defendant’s intent either to steal or to “unlawfully do violence.” Lockett v. Puckett, 988 F. Supp. 1019, 1997 U.S. Dist. LEXIS 20731 (S.D. Miss. 1997), rev'd, vacated, 230 F.3d 695, 2000 U.S. App. LEXIS 25501 (5th Cir. Miss. 2000).

Capital murder indictment predicated on burglary must state underlying offense that comprises burglary, and mere tracking in indictment of language of capital murder statute is insufficient; burglary is only capital murder predicate offense having essential element of intent to commit another felony, and permitting state to indict for capital murder without specifying underlying offense of burglary could result in trial on theory never placed before grand jury and with respect to which defendant had no opportunity to prepare defense. State v. Berryhill, 703 So. 2d 250, 1997 Miss. LEXIS 532 (Miss. 1997).

A capital murder indictment alleging that the murder was committed while the defendant was “engaged in the commission of the crime of robbery . . . ” gave the defendant sufficient notice of the nature and cause of the charges against him, even though the indictment did not specify the overt acts constituting the crime of robbery, where the indictment further read “contrary to and in violation of subsection (2)(e) of this section,” which is the statutory provision for capital murder, so that the indictment was in compliance with §99-17-20. Mackbee v. State, 575 So. 2d 16, 1990 Miss. LEXIS 831 (Miss. 1990).

An indictment charging a killing occurring “while engaged in the commission of” one of the enumerated felonies in this section includes the actions of the defendant leading up to the felony, the attempted felony, and flight from the scene of the felony. Thus, in a capital murder prosecution, involving the underlying felony of sexual battery, the fact that the actual moment of the victim’s death preceded consummation of the underlying felony did not vitiate the capital charge. Baker v. Baker, 553 So. 2d 8, 1989 Miss. LEXIS 537 (Miss. 1989).

A multiple-count indictment, charging murder and aggravated assault, was permissible where both the murder and the aggravated assault arose from a single fusillade, the defendant presented the same self-defense defense to the 2 charges, almost all of the evidence admissible against the defendant on the murder count was also admissible against him on the assault count and visa-versa, and no legally cognizable prejudice could be said to have resulted from the consolidation at trial of the 2 charges. Blanks v. State, 542 So. 2d 222, 1989 Miss. LEXIS 165 (Miss. 1989).

When indictment charges defendant with capital murder in course of rape and robbery and trial judge’s instructions, as requested by state, tell jury that before it can convict defendant it must find that defendant killed victim while in course of committing rape and robbery, state undertakes burden of showing sufficiency of proof to establish both underlying rape and robbery as well as murder. Fisher v. State, 481 So. 2d 203, 1985 Miss. LEXIS 2281 (Miss. 1985).

Murder indictment which follows language of “depraved heart” provision of this section need not use words “malice aforethought.” Johnson v. State, 475 So. 2d 1136, 1985 Miss. LEXIS 2238 (Miss. 1985).

Indictment for murder includes all lower grades of felonious homicide, including manslaughter, and failure of state to elect between murder and manslaughter does not leave defendant ignorant of charge in violation of Sixth Amendment of United States Constitution and § 26 of Mississippi Constitution. Kelly v. State, 463 So. 2d 1070, 1985 Miss. LEXIS 1878 (Miss. 1985).

In a prosecution for capital murder under this section, even though a technical error in the indictment charged the defendant under a different subsection of statute, the indictment was sufficient and the requirements of due process were met since the defendant and his attorney understood well in advance of trial that the charge was capital murder and that he was in jeopardy of the possible imposition of the penalty of death. Jones v. State, 461 So. 2d 686, 1984 Miss. LEXIS 2009 (Miss. 1984).

A person who intentionally sets fire to a building, with or without knowledge that it is occupied, may properly be charged with capital murder under subsection (2)(e) of this section, if the fire results in the death of an occupant of the building. Dycus v. State, 440 So. 2d 246, 1983 Miss. LEXIS 2790 (Miss. 1983).

The trial court had jurisdiction over a prosecution for capital murder, a violation of subsection (2)(e) of this section, where the essential underlying element of the crime, kidnapping, started in Mississippi when defendant forcefully took the victim from her place of employment, notwithstanding the fact that the actual murder took place in Alabama. Pruett v. State, 431 So. 2d 1101, 1983 Miss. LEXIS 2448 (Miss.), cert. denied, 464 U.S. 865, 104 S. Ct. 201, 78 L. Ed. 2d 176, 1983 U.S. LEXIS 5350 (U.S. 1983).

In a prosecution for capital murder committed in the course of a robbery, the defendant’s demurrer to the indictment on the grounds that it did not set forth the necessary and essential elements of the crime of robbery and did not refer to the proper statute was properly denied where the indictment was sufficient to give the accused fair notice of the crime charged in clear and intelligible language. Bullock v. State, 391 So. 2d 601, 1980 Miss. LEXIS 2055 (Miss. 1980), cert. denied, 452 U.S. 931, 101 S. Ct. 3068, 69 L. Ed. 2d 432 (U.S. 1981).

The indictment in a murder prosecution was not defective for failure to adequately describe and define the offenses charged where the statutory language used in the indictment adequately defined the offense so as to give the defendant fair notice of the crime charged in clear and intelligible language. Bell v. State, 360 So. 2d 1206, 1978 Miss. LEXIS 2318 (Miss. 1978).

Trial court in prosecution for capital murder committed during armed robbery properly refused to quash indictment, which failed to cite section and subsection of code defining offense as required by §99-17-20, where indictment was amended prior to trial so as to cite applicable statutory offense involved. Bell v. State, 353 So. 2d 1141, 1977 Miss. LEXIS 2024 (Miss. 1977).

The court properly permitted the state to amend a murder indictment by striking from it the language “while engaged in commission of armed robbery or in violation of this section, Mississippi Code Annotated (1972)”, since all the ingredients charged by the amended indictment were there before the amendment, and thus no additional burden was placed on the defendant, and, though the indictment before amendment failed to specify that the charge was under subsection (2), which defines capital murder, this was not a fatal error or ground for demurrer, such as to prevent amendment, but rather the indictment thereby had merely charged defendant with murder (not capital). Porter v. State, 339 So. 2d 564, 1976 Miss. LEXIS 1675 (Miss. 1976).

Defendant’s indictment for murder was sufficient despite its failure to apprise him of whether he was charged under the capital murder section of the homicide statute [subsection (2) of this section] or under the section pertaining to murder [subsection (1) of this section], since, in light of the requirement of §99-17-20 that one can only be tried for capital murder if such offense was specifically cited in the indictment, defendant could only have been charged with and convicted of murder, and since §99-7-37, concerning requirements for indictments for homicide, does not require that the defendant be specifically apprised of whether he is being charged with murder or capital murder. Varnado v. State, 338 So. 2d 1239, 1976 Miss. LEXIS 1657 (Miss. 1976).

Where it was shown by direct evidence that the deceased was one and the same person as charged in the indictment to have been killed, the fact that the name of the deceased was shown by inference and hearsay would not render the conviction void. Duke v. State, 243 Miss. 602, 140 So. 2d 863, 1962 Miss. LEXIS 383 (Miss. 1962).

Murder indictment held not demurrable as not charging wilfulness and accused’s malice aforethought. Wexler v. State, 167 Miss. 464, 142 So. 501, 1932 Miss. LEXIS 203 (Miss. 1932).

Indictment charging defendant with killing unnamed infant, child of named parent, is sufficient. State v. Peek, 95 Miss. 240, 48 So. 819, 1909 Miss. LEXIS 242 (Miss. 1909).

23. Variance between pleading and proof.

An indictment charging a defendant with intentional murder and assigning a maximum penalty of life was sufficient to give the defendant fair notice of the crime charged, even though the jury instructions in the ensuing prosecution failed to include a charge that the murder was intentional. Berry v. State, 575 So. 2d 1, 1990 Miss. LEXIS 849 (Miss. 1990), cert. denied, 500 U.S. 928, 111 S. Ct. 2042, 114 L. Ed. 2d 126, 1991 U.S. LEXIS 2673 (U.S. 1991).

In a prosecution for capital murder, the indictment charging defendant with willfull murder in the commission of the crime of robbery sufficiently informed defendant of the constituent offense with which he was charged, despite his contention that the testimony at trial only related to attempted robbery, since the statutory language “engaged in the commission of” includes an attempt to commit the constituent felony, the completed constituent felony, as well as immediate post-felony acts. Culberson v. State, 379 So. 2d 499, 1979 Miss. LEXIS 2528 (Miss. 1979), cert. denied, 449 U.S. 986, 101 S. Ct. 406, 66 L. Ed. 2d 250, 1980 U.S. LEXIS 3943 (U.S. 1980).

Where the accused’s contention that he was incapable of forming a criminal intent or a deliberate design to effect the death of the deceased was submitted to the jury with an instruction that the claimed state of intoxication would constitute a defense, there was not a fatal variance between the indictment charging that the accused wilfully, feloniously and with malice aforethought killed his wife and the proof, showing that the evidence upon the question of the extent accused’s intoxication was in conflict. Jackson v. State, 228 Miss. 604, 89 So. 2d 626, 1956 Miss. LEXIS 552 (Miss. 1956).

Where the record discloses that the witnesses, although calling the slain man by various names, were obviously referring to the person named in the indictment as having been killed, the rule is satisfied that it is necessary for the proof to show that the person killed is the same person as the one charged in the indictment as to have been killed. McDaniels v. State, 203 Miss. 239, 33 So. 2d 785, 1948 Miss. LEXIS 255 (Miss. 1948).

Variance between indictment charging defendant with the murder of “Myrtle” McCune and proof that defendant killed “Nettie” McCune, could not be availed of for the first time in the supreme court to reverse conviction of murder. Childress v. State, 188 Miss. 573, 195 So. 583, 1940 Miss. LEXIS 62 (Miss. 1940).

24. Deliberations of jury; verdict.

Inmate’s claim concerning error on a verdict form in connection with the inmate’s capital murder trial was found to be without merit on direct appeal, and thus the issue was barred under Miss. Code Ann. §99-39-21(2), and (2) in any event, the inmate raised nothing new before the court. Smith v. State, 877 So. 2d 369, 2004 Miss. LEXIS 547 (Miss. 2004).

Inmate failed to show, in connection with the inmate’s capital murder trial, any prejudicial jury misconduct as alleged in an affidavit submitted under Miss. Code Ann. §99-39-9(1)(e); while the affidavit stated that some jurors heard that the inmate’s co-defendant had committed a rape in the past, there was no allegation that the jurors came to their decision based on a rape allegation against co-defendant. Smith v. State, 877 So. 2d 369, 2004 Miss. LEXIS 547 (Miss. 2004).

Jurors were not prohibited, in connection with the sentencing phase of an inmate’s capital murder trial, from discussing among themselves whether parole was a possibility because they were instructed correctly; furthermore, the jury knew that if the inmate was sentenced to life, the inmate would never be paroled, and thus little stock could be put in the affidavits, submitted under Miss. Code Ann. §99-39-9(1)(e), that said that the jurors were concerned that the inmate would be paroled one day. Smith v. State, 877 So. 2d 369, 2004 Miss. LEXIS 547 (Miss. 2004).

In defendant’s conviction for murder of the child while in the commission of felonious abuse and/or battery of the child, there were two notes passed to the trial judge by the bailiff from the jurors, but neither of the notes indicated that the jury had reached a conclusion or that they were deliberating; thus, defendant was not denied the right to an impartial jury. Seeling v. State, 844 So. 2d 439, 2003 Miss. LEXIS 119 (Miss. 2003).

That murder was committed (1) while engaged in crime of robbery and (2) for pecuniary gain may not be given as two separate and independent aggravating circumstances, as they essentially comprise one. When life is at state, a jury cannot be allowed to doubly weigh the commission of the underlying felony and the motive behind it as separate aggravators. Willie v. State, 585 So. 2d 660, 1991 Miss. LEXIS 454 (Miss. 1991).

The Weathersby rule is not a jury instruction, but is a guide for the circuit judge in determining whether a defendant is entitled to a directed verdict. Blanks v. State, 547 So. 2d 29, 1989 Miss. LEXIS 322 (Miss. 1989).

If, after day and one-half of hearing trial of murder and manslaughter case, jury deliberates from 3:21 p.m. until 10:38 p.m., 3 jurors express desire to recess deliberation, but trial court nonetheless sends jury back for further deliberations, verdict comes at 11:07 p.m., special interrogatory confines jury until 11:35 p.m., and there has been excessive deliberation time. Isom v. State, 481 So. 2d 820, 1985 Miss. LEXIS 2336 (Miss. 1985).

Capital murder defendant is not entitled to have jury separately instructed and separately to consider whether or not defendant is guilty of being accessory after fact. Johnson v. State, 477 So. 2d 196, 1985 Miss. LEXIS 2072 (Miss. 1985), cert. denied, 476 U.S. 1109, 106 S. Ct. 1958, 90 L. Ed. 2d 366 (U.S. 1986).

Mistrial is appropriate in capital murder prosecution in which, while jury is deliberating during sentencing phase, juror is given message by spouse that juror’s mother has died. Fuselier v. State, 468 So. 2d 45, 1985 Miss. LEXIS 2035 (Miss. 1985).

Trial court does not improperly communicate with individual juror by replying to juror in response to juror’s request to be excused that court will not excuse juror for reason expressed by juror. Fairley v. State, 467 So. 2d 894, 1985 Miss. LEXIS 1902 (Miss.), cert. denied, 474 U.S. 855, 106 S. Ct. 160, 88 L. Ed. 2d 133, 1985 U.S. LEXIS 3725 (U.S. 1985).

Juror’s receipt of telephone call from unidentified third party in middle of murder prosecution does not constitute jury tampering for which new trial will be ordered where defendant has failed to request that jury be sequestered and where defendant fails to place in record any objection upon learning that juror has received telephone call and where record reflects that defense counsel says nothing about matter until several days later when jury’s guilty verdict is returned. Gerlach v. State, 466 So. 2d 75, 1985 Miss. LEXIS 1986 (Miss. 1985).

Where, in a prosecution under subsection (2)(e) of this section, for murder while engaged in the commission of the crime of rape, there was evidence that a crime had been committed and that the defendant and two other persons had been present, the only conclusion that could be drawn was that one or more of them had committed the crime, and when each of such persons proceeded to blame the other for the actual perpetration of the crime, it was up to the jury to determine which person or persons were guilty. Ruffin v. State, 447 So. 2d 113, 1984 Miss. LEXIS 1629 (Miss. 1984).

A guilty verdict in a murder prosecution need not be signed by the jurors. Wright v. State, 209 Miss. 795, 48 So. 2d 509, 1950 Miss. LEXIS 444 (Miss. 1950).

Fact that death of victim was caused by a single stab wound does not entitle one of two defendants to directed verdict of acquittal when both defendants by concerted action did all within their power to effect death of victim with common design toward that end, and it is immaterial as to which of them proved to be successful in the effort. Riley v. State, 208 Miss. 336, 44 So. 2d 455, 1950 Miss. LEXIS 252 (Miss. 1950).

Where evidence disclosed that jury after twenty-three hours of deliberations stood 11 to 1 for verdict for guilty of murder when bailiff stated to jury that judge told him he had until next convening of court to wait until they reached verdict and that as far as he was concerned they could stay there until they rotted and that shortly thereafter the jury returned a verdict of guilty, such conduct constituted a coercive inference on the jury prejudicial to the defendant, it being immaterial whether the judge actually made such statement. McCoy v. State, 207 Miss. 272, 42 So. 2d 195, 1949 Miss. LEXIS 336 (Miss. 1949).

25. Conviction of lesser offense.

Defendant’s conviction for culpable negligence manslaughter was not against the weight of the evidence because (1) culpable negligence manslaughter was a lesser-included offense of the deliberate design murder for which defendant was indicted, and (2) the evidence allowed a reasonable jury to conclude that defendant barred the victim’s departure from the parties’ confrontation, defeating defendant’s self-defense claim. Brisco v. State, — So.3d —, 2019 Miss. App. LEXIS 481 (Miss. Ct. App. Oct. 1, 2019).

Sufficient evidence supported defendant’s manslaughter conviction because (1) sufficient evidence of depraved-heart murder showed defendant knew her husband was sitting behind her car when she ran over him, showing culpable-negligence manslaughter, (2) presenting an alternate factual theory inadequate to sustain the conviction did not warrant reversal, as the jury could discard any factually insufficient theories, and (3) there was legally sufficient evidence of heat of passion. McCarty v. State, 247 So.3d 260, 2017 Miss. App. LEXIS 623 (Miss. Ct. App. 2017), cert. denied, 246 So.3d 885, 2018 Miss. LEXIS 263 (Miss. 2018).

Evidence was sufficient to convict defendant of manslaughter under Miss. Code Ann. §97-3-35 as she was the only other person in the house, a deadly weapon was used, there was no evidence of self-defense, and scientific evidence of the gunshot wound showed that the victim could not have inflicted it himself, either by accident or suicide. Further, there was no prejudice to defendant as she was convicted of the lesser-included offense where proof would have supported conviction of the greater offense of deliberate-design murder. Simpson v. State, 993 So. 2d 400, 2008 Miss. App. LEXIS 334 (Miss. Ct. App.), cert. denied, 997 So. 2d 924, 2008 Miss. LEXIS 552 (Miss. 2008), cert. denied, 555 U.S. 1188, 129 S. Ct. 1348, 173 L. Ed. 2d 614, 2009 U.S. LEXIS 1379 (U.S. 2009).

Manslaughter is not a lesser-included offense of murder; therefore, a trial court was not permitted to enter a limited directed verdict on a murder charge and allow a jury to consider the unindicted offense of manslaughter because defendant did not receive notice of the manslaughter charge in the murder indictment. State v. Shaw, 2003 Miss. LEXIS 525 (Miss. Oct. 9, 2003), op. withdrawn, sub. op., 880 So. 2d 296, 2004 Miss. LEXIS 1027 (Miss. 2004).

Where respondent was charged with capital murder for participating in assault during course of which respondent’s companion killed victim, and was sentenced to death under capital murder statute, but death sentence was vacated under intervening U.S. Supreme Court decision holding that Eighth Amendment forbids imposition of death penalty on one who aids and abets felony in the course of which murder is committed but who does not himself kill, attempt to kill, or intend that killing take place or that lethal force be employed, curt on federal habeas corpus review should require state’s judicial system to examine entire course of proceedings to determine whether at some point requisite factual finding has been made to support death penalty, which under proper circumstances does not offend Eighth amendment. Cabana v. Bullock, 474 U.S. 376, 106 S. Ct. 689, 88 L. Ed. 2d 704, 1986 U.S. LEXIS 46 (U.S. 1986), overruled in part, Pope v. Illinois, 481 U.S. 497, 107 S. Ct. 1918, 95 L. Ed. 2d 439, 1987 U.S. LEXIS 1934 (U.S. 1987).

In a prosecution for murder in which evidence was insufficient to support a conviction for capital murder, since it was not shown beyond a reasonable doubt that the defendant murdered the victim while committing a kidnapping, the indictment for capital murder was sufficient to charge defendant with murder as a lesser included offense, and the jury could have been instructed that it could find the defendant guilty of such lesser included offense if the evidence justified such a finding; defendant’s conviction of capital murder was reversed, the jury’s verdict was affirmed as to guilt, and the case was remanded for resentencing of defendant for murder. Biles v. State, 338 So. 2d 1004, 1976 Miss. LEXIS 1646 (Miss. 1976), cert. denied, 431 U.S. 940, 97 S. Ct. 2655, 53 L. Ed. 2d 258, 1977 U.S. LEXIS 2010 (U.S. 1977).

Unwarranted conviction of manslaughter held harmless error under indictment for murder supported by evidence. Calicoat v. State, 131 Miss. 169, 95 So. 318, 1922 Miss. LEXIS 296 (Miss. 1922).

Conviction of manslaughter in prosecution for murder is an acquittal of murder. Walker v. State, 123 Miss. 517, 86 So. 337, 1920 Miss. LEXIS 50 (Miss. 1920).

On an indictment for murder the accused may be convicted of manslaughter. Dyson v. State, 26 Miss. 362, 1853 Miss. LEXIS 103 (Miss. 1853).

26. Trial; generally.

In defendant’s trial for capital murder, the State, for reasons that did not appear in the record, elected not to offer the subject incriminating statement into evidence, and it was purely speculative to suggest that the State would have attempted to belatedly offer the statement after ending its case in chief and then only if defendant took the stand. Thus, because the trial court determined the statement to be admissible as bearing directly on the central issue of defendant’s guilt, rather than for some alternate and limited purpose such as witness impeachment, the trial court’s ruling could not be seen as having had any chilling effect on defendant in deciding whether or not to take the stand. Bernardini v. State, 872 So. 2d 690, 2004 Miss. App. LEXIS 372 (Miss. Ct. App. 2004).

Trial court’s cautionary admonition to defendant in prosecution for murder of African-American leader of civil rights organization to avoid racially inflammatory language during voir dire questioning was not unduly restrictive of defendant’s inquiry into racial prejudice; court permitted extensive questioning of jurors regarding racial matters, including civil rights activities. De La Beckwith v. State, 707 So. 2d 547, 1997 Miss. LEXIS 749 (Miss. 1997), cert. denied, 525 U.S. 880, 119 S. Ct. 187, 142 L. Ed. 2d 153, 1998 U.S. LEXIS 5751 (U.S. 1998).

Testimony of accomplice, which was partially corroborated by fellow inmate of defendant and by state’s ballistics expert, presented question of fact to be determined by jury as to whether defendant was guilty of robbery and subsequent shooting of store clerk. Brown v. State, 682 So. 2d 340, 1996 Miss. LEXIS 427 (Miss. 1996), cert. denied, 520 U.S. 1127, 117 S. Ct. 1271, 137 L. Ed. 2d 348, 1997 U.S. LEXIS 1821 (U.S. 1997).

Experts who rendered diagnosis of “no mental disorder” for low intelligence quotient for capital murder defendant, after being appointed to perform mental examination of him to determine his competency to stand trial, afforded defendant constitutionally adequate evaluation and furnished constitutionally adequate report. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

The trial court in a capital murder prosecution did not err in permitting 3 off-the-record bench conferences and a jury instruction conference to be conducted when the defendant was not present where the defendant was represented by counsel at every critical stage of the proceedings, and he was not prejudiced by his absences at the conferences. Carr v. State, 655 So. 2d 824, 1995 Miss. LEXIS 56 (Miss. 1995), cert. denied, 516 U.S. 1077, 116 S. Ct. 783, 133 L. Ed. 2d 734, 1996 U.S. LEXIS 547 (U.S. 1996).

In a prosecution for murder, an exclamation from the audience by the victim’s mother that the defendant “cold blooded killed my child” did not prejudice the defendant’s right to a fair trial where the victim’s mother was immediately escorted from the courtroom after her outburst, and the judge then properly admonished the jury to disregard the incident and questioned the jurors to determine whether they could disregard the comments. Bell v. State, 631 So. 2d 817, 1994 Miss. LEXIS 74 (Miss. 1994).

In a capital murder trial, the phrase “they haven’t shown it” used by the prosecutor in his closing argument with respect to the defendant’s alibi defense did not shift the burden of proof from the State to the defendant and deprive him of his right to a presumption of innocence where the prosecutor stated that the alibi instruction required the defendant to be in a place so remote and distant that he could not have committed the offense and “they haven’t shown it”; the prosecutor did not tell the jury that the defendant’s failure to establish his alibi should automatically translate into a verdict of guilty, but merely stated that the defense had not proven or “shown” that the defendant was “in a place so remote and distant that he could not have committed the offense” at the time when the crime occurred. Conner v. State, 632 So. 2d 1239, 1993 Miss. LEXIS 541 (Miss. 1993), cert. denied, 513 U.S. 927, 115 S. Ct. 314, 130 L. Ed. 2d 276, 1994 U.S. LEXIS 7088 (U.S. 1994), overruled, Weatherspoon v. State, 732 So. 2d 158, 1999 Miss. LEXIS 4 (Miss. 1999).

A trial court’s refusal to permit a capital murder defendant to impeach an eyewitness regarding his statement that he had been employed by his cousin for part of the previous year did not deprive the defendant of his constitutional right to confront witnesses against him since the issue of the witness’ employment was a collateral matter; the constitutional right to confront witnesses applies only to issues pertinent to the crime charged, and the general rule that a party may not impeach a witness on collateral matters is applicable. Conner v. State, 632 So. 2d 1239, 1993 Miss. LEXIS 541 (Miss. 1993), cert. denied, 513 U.S. 927, 115 S. Ct. 314, 130 L. Ed. 2d 276, 1994 U.S. LEXIS 7088 (U.S. 1994), overruled, Weatherspoon v. State, 732 So. 2d 158, 1999 Miss. LEXIS 4 (Miss. 1999).

A trial court in a murder prosecution erred in allowing the prosecutor to cross-examine a witness about a certified lab report of results of the defendant’s drug screen test, where the test results were never offered into evidence during the trial and the witness had no actual knowledge of the drug screen analysis; without the testimony of a sponsoring witness with personal knowledge of the facts contained therein, the drug screen report was inadmissible hearsay, and without the opportunity to cross-examine the person responsible for the information contained in the report, the defendant’s right to confront witnesses secured by the Sixth Amendment and Article 3, § 26 of the Mississippi Constitution were violated. Balfour v. State, 598 So. 2d 731, 1992 Miss. LEXIS 131 (Miss. 1992).

A trial court’s denial of a capital murder defendant’s request for a private mental examination did not violate the Eighth and Fourteenth Amendments, where the defendant did not attempt to use an insanity defense, the State did not produce psychiatric testimony against him, and he did not demonstrate that sanity was to be a significant factor at trial. Ladner v. State, 584 So. 2d 743, 1991 Miss. LEXIS 434 (Miss.), cert. denied, 502 U.S. 1015, 112 S. Ct. 663, 116 L. Ed. 2d 754, 1991 U.S. LEXIS 7261 (U.S. 1991).

A trial court in a capital murder prosecution did not abuse its discretion in declining to grant a mistrial or a new trial on the ground that the victim’s daughter, who found the body of her mother, began to weep while testifying on direct examination, where the daughter’s testimony was elicited not as a family impact statement but to prove the conditions at the crime scene. Ladner v. State, 584 So. 2d 743, 1991 Miss. LEXIS 434 (Miss.), cert. denied, 502 U.S. 1015, 112 S. Ct. 663, 116 L. Ed. 2d 754, 1991 U.S. LEXIS 7261 (U.S. 1991).

A trial court erred in not permitting a murder defendant himself to make an opening statement even though the judge had not been forewarned that the defendant wished to make the opening statement himself. A defense attorney who is made aware by his or her client that the client wishes to personally conduct his or her own defense first has an obligation to fully advise the client of the constitutional right to represent himself or herself, and also of the responsibility and risk entailed. The defense counsel also has an obligation to inform the judge prior to exercise of the right, of the client’s desire to do so, in order to give the judge an opportunity to instruct as well as warn the defendant outside the presence of the jury of his or her rights and responsibilities. Bevill v. State, 556 So. 2d 699, 1990 Miss. LEXIS 27 (Miss. 1990).

Defendant was not denied right to a speedy trial where, although almost 7 years elapsed between his indictment on charges of murder and aggravated assault and his arraignment, substantially all of the delay was due to defendant’s confinement in a state mental institution pursuant to court order, issued shortly after the indictment, finding defendant insane and not competent to stand trial, and trial was set in less than 6 weeks after the court was notified by institution’s staff of defendant’s competence to stand trial. Smith v. State, 489 So. 2d 1389, 1986 Miss. LEXIS 2482 (Miss. 1986).

Judge is not disqualified from hearing homicide case on basis of fact that homicide defendant’s former attorney, against whom defendant has filed bar complaint, has at one time been law partner of judge. Ruffin v. State, 481 So. 2d 312, 1985 Miss. LEXIS 2432 (Miss. 1985).

Refusal to provide indigent criminal defendant with free transcript of prior trial which ended in mistrial does not violate equal protection where defendant makes no showing that transcript would be useful or necessary to case or that alternative devices are unavailable. Ruffin v. State, 481 So. 2d 312, 1985 Miss. LEXIS 2432 (Miss. 1985).

Defendant in capital murder case is not entitled to compulsory process, attendance fees, and travel expenses for out of state prospective character witnesses, particularly in case in which only thing presented to judge as to testimony of proposed witnesses is summary by counsel, not sworn to, as to what witnesses might testify. Johnson v. State, 477 So. 2d 196, 1985 Miss. LEXIS 2072 (Miss. 1985), cert. denied, 476 U.S. 1109, 106 S. Ct. 1958, 90 L. Ed. 2d 366 (U.S. 1986).

Refusal to grant capital murder defendant’s request for change of venue impermissibly deprives defendant of right to impartial jury where defendant has made prima facie showing of community prejudice by submitting affidavit signed by 2 witnesses with knowledge; furthermore, testimony of 15 defense witnesses who state specific reasons why defendant cannot receive fair trial in county in which offense has been committed raises irrebutable presumption of prejudice. Johnson v. State, 476 So. 2d 1195, 1985 Miss. LEXIS 2257 (Miss. 1985).

Trial court’s refusal to summon prisoners to testify in capital murder case, as requested by defendant, does not violate defendant’s right to compulsory process where testimony by prisoners would be inadmissible hearsay. Gray v. State, 472 So. 2d 409 (Miss. 1985), rev’d on other grounds, 481 U.S. 648, 107 S. Ct. 2045, 95 L. Ed. 2d 622 (1987), and see Willie v. State, 585 So. 2d 660, 1991 Miss. LEXIS 454 (Miss. 1991).

One on trial for life or liberty may be handcuffed or otherwise shackled in presence of jury only by reason of clear and present danger to order or security. Hickson v. State, 472 So. 2d 379, 1985 Miss. LEXIS 2132 (Miss. 1985).

Presence of law enforcement officers behind bar of court during trial of capital murder defendant is permissible so long as trial judge takes care to avoid appearance of intimidation. Lancaster v. State, 472 So. 2d 363, 1985 Miss. LEXIS 2115 (Miss. 1985).

When trial court improperly refuses to order production of clearly discoverable witness statements which to to heart of credibility of state’s principal witness in murder prosecution, reviewing court does not engage in nice calculations regarding amount of resulting prejudice but reverses and remands for new trial. Barnes v. State, 471 So. 2d 1218, 1985 Miss. LEXIS 2138 (Miss. 1985).

Where a physician had made a sufficient examination of the body on the morning following the assault so as to be able to testify that whoever had inflicted the wounds was the person who had killed the deceased, and according to the testimony of the sheriff and undertaker the deceased had suffered approximately 21 wounds inflicted by a blunt instrument, his skull had been cracked and considerable blood was found at the scene of the assault, the trial court did not err in overruling defendant’s motion for an autopsy. Upshaw v. State, 231 Miss. 158, 94 So. 2d 337, 1957 Miss. LEXIS 500 (Miss. 1957).

Trial court in murder prosecution has right to give his reasons for rulings during course of trial and to show why, in his opinion, reasons advanced for contrary ruling are unsound, provided he does not encroach upon province of jury or try to influence their verdict. Price v. State, 207 Miss. 111, 41 So. 2d 37, 1949 Miss. LEXIS 321 (Miss.), cert. denied, 338 U.S. 844, 70 S. Ct. 92, 94 L. Ed. 516, 1949 U.S. LEXIS 1836 (U.S. 1949).

Remark of trial court in ruling on right of prosecution to cross-examine accused in murder case concerning insurance on victim that matter of insurance was wholly immaterial and that nothing about insurance is to be considered in any way derogatory to defendant, or derogatory to anybody else, is not equivalent to oral instruction to jury upon law of case contrary to express provisions of Code 1942, § 1530, Code requiring all jury instructions upon the law to be in writing, and is not prejudicial to defendant. Price v. State, 207 Miss. 111, 41 So. 2d 37, 1949 Miss. LEXIS 321 (Miss.), cert. denied, 338 U.S. 844, 70 S. Ct. 92, 94 L. Ed. 516, 1949 U.S. LEXIS 1836 (U.S. 1949).

27. —Prosecutorial misconduct.

Defendant’s conviction for murder under Miss. Code Ann. §97-3-19(1)(b) was proper, in part because defendant failed to prove any prosecutorial misconduct. The prosecutor was permitted to summarize the police investigation and the comment was not a comment on defendant’s failure to testify; further, the prosecutor was not vouching for a witness’s credibility but instead simply gave a summation of the evidence and inferred that the trial testimony was false. Franklin v. State, 72 So.3d 1129, 2011 Miss. App. LEXIS 125 (Miss. Ct. App.), cert. denied, 71 So.3d 1207, 2011 Miss. LEXIS 508 (Miss. 2011).

In a capital murder trial, defendant failed to prove that the prosecutor committed misconduct by identifying the victim as a police officer; the information was not admitted as victim-characteristic evidence at the sentencing phase, but, rather, was an integral part of the proof necessary to establish the capital offense, Miss. Code Ann. §97-3-19(2)(a). Maye v. State, 49 So.3d 1140, 2009 Miss. App. LEXIS 807 (Miss. Ct. App. 2009), vacated, 49 So.3d 1124, 2010 Miss. LEXIS 622 (Miss. 2010).

Defendant cited seven instances of misconduct by the State in its closing argument, including references to the victim’s family and their attendance at the trial, the State’s actions as the “last voice” for the victim, references to the victim’s last thoughts, and the grief of the victim’s family members. However, the trial court alleviated any prejudice in properly sustaining the objections of counsel and admonishing the jury and the appellate court could not say that the improper arguments led to a verdict that was based upon prejudice and not upon the evidence so as to have justified a mistrial. Smith v. State, 911 So. 2d 541, 2004 Miss. App. LEXIS 1104 (Miss. Ct. App. 2004), cert. denied, 920 So. 2d 1008, 2005 Miss. LEXIS 634 (Miss. 2005).

Prosecutor did not overstep his bounds when he asked the jury not to let the defendant get away with the murder with which he was charged. Furthermore, the trial court instructed the jury that arguments and statements of counsel were not evidence and that if any argument, statement or remark had no basis in the evidence, then the jury was to disregard that argument, statement or remark; in any event, there was no prosecutorial misconduct and no grounds for reversal in light of said instructions. Davis v. State, 904 So. 2d 1212, 2004 Miss. App. LEXIS 1053 (Miss. Ct. App. 2004), cert. denied, 898 So. 2d 679, 2005 Miss. LEXIS 269 (Miss. 2005).

Prosecutor’s closing argument that defendant’s accomplices were not being tried because they had been exonerated in prior judicial hearing was proper response to defense counsel’s references to the fact that no action was being taken against defendant’s accomplices. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

Prosecutor’s closing argument during guilt phase that “This man deserves everything that he can get for the most brutal murder” and “He’s guilty” were not personal opinion comments, as prosecutor never said that she believed that defendant was guilty or that she believed that defendant deserved the death penalty. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

Prosecutors are afforded the right to argue anything in the State’s closing argument that was presented as evidence, but arguing statements of fact which are not in evidence or necessarily inferable from it and which are prejudicial to the defendant is error. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

Prosecuting attorney should refrain from commenting upon appearance of defendant when he has not been introduced as a witness. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

Prosecuting attorney should refrain from doing anything or saying anything that would tend to cause jury to disfavor defendant due to matters other than evidence relative to the crime. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

Prosecutor’s comment on defendant’s demeanor and appearance may have highlighted his failure to testify, which is plainly prohibited, and the remark should not have been made. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

Prosecution did not improperly comment on capital murder defendant’s failure to testify, when he stated that accomplice’s testimony regarding a ripped shirt was the “only testimony” and the “only reliable information” made available; reading of full remarks made it plain that prosecutor was simply summarizing account of night’s events as told by accomplice and rebutting defense efforts to show that accomplice was lying. Walker v. State, 671 So. 2d 581, 1995 Miss. LEXIS 494 (Miss. 1995), cert. denied, 519 U.S. 1011, 117 S. Ct. 518, 136 L. Ed. 2d 406, 1996 U.S. LEXIS 7236 (U.S. 1996).

Capital murder defendant was not prejudiced by comment of prosecution, during guilt phase closing argument, inviting jury to notice that on each of several situations in which state was prepared to go forward with proof “that the defense would just as soon not be before you,” a stipulation was entered into; immediately thereafter the court instructed prosecutor “don’t raise a comment on why the stipulations were made,” and defense counsel did not request any further action. Walker v. State, 671 So. 2d 581, 1995 Miss. LEXIS 494 (Miss. 1995), cert. denied, 519 U.S. 1011, 117 S. Ct. 518, 136 L. Ed. 2d 406, 1996 U.S. LEXIS 7236 (U.S. 1996).

The prosecutor’s closing argument in the guilt phase of a capital murder prosecution did not constitute an improper comment on the defendant’s right to remain silent following arrest where the prosecutor, while discussing a county jail inmate’s testimony as to statements made by the defendant while he was in the jail, referred to the relationship between the defendant and the witness, and described the circumstances under which the statements were made. Carr v. State, 655 So. 2d 824, 1995 Miss. LEXIS 56 (Miss. 1995), cert. denied, 516 U.S. 1077, 116 S. Ct. 783, 133 L. Ed. 2d 734, 1996 U.S. LEXIS 547 (U.S. 1996).

A prosecutor’s closing argument in a capital murder case did not constitute a comment on the defendant’s failure to testify at trial, in spite of the defendant’s argument that the prosecutor’s comments highlighted the fact that the only people alive who could have testified as to the events surrounding the murders were the defendant and his accomplice, where the prosecutor merely stated that the defendant and his accomplice saw to it that there were no eyewitnesses, and that “people who kill their victims and kill their eyewitnesses cannot be set free.” Carr v. State, 655 So. 2d 824, 1995 Miss. LEXIS 56 (Miss. 1995), cert. denied, 516 U.S. 1077, 116 S. Ct. 783, 133 L. Ed. 2d 734, 1996 U.S. LEXIS 547 (U.S. 1996).

A prosecutor’s biblical references during closing argument at the sentencing phase of a capital murder prosecution did not deprive the defendant of a fair trial, as the comments were within the “broad latitude” afforded counsel in closing argument. Carr v. State, 655 So. 2d 824, 1995 Miss. LEXIS 56 (Miss. 1995), cert. denied, 516 U.S. 1077, 116 S. Ct. 783, 133 L. Ed. 2d 734, 1996 U.S. LEXIS 547 (U.S. 1996).

A prosecutor improperly commented during closing argument on a capital murder defendant’s failure to testify where the prosecutor stated that the defendant “hasn’t told you the whole truth yet,” that “you still don’t know the whole story,” and that the defendant was the only person alive who could give the whole story. Butler v. State, 608 So. 2d 314, 1992 Miss. LEXIS 588 (Miss. 1992).

In a capital murder prosecution, the prosecutor’s statement that there had not been any testimony that the defendant acted in self-defense did not constitute an impermissible comment upon the failure of the defendant to testify, where the prosecutor’s statement was made in connection with his argument that the State had proved the required element that the defendant’s actions were not done in necessary self-defense. Ladner v. State, 584 So. 2d 743, 1991 Miss. LEXIS 434 (Miss.), cert. denied, 502 U.S. 1015, 112 S. Ct. 663, 116 L. Ed. 2d 754, 1991 U.S. LEXIS 7261 (U.S. 1991).

In a capital murder prosecution, the prosecutor’s references to a second victim did not violate the Eighth and Fourteenth Amendments, since these references were necessary to tell the complete story of the crime where both victims were killed in the same mobile home with the same gun. Ladner v. State, 584 So. 2d 743, 1991 Miss. LEXIS 434 (Miss.), cert. denied, 502 U.S. 1015, 112 S. Ct. 663, 116 L. Ed. 2d 754, 1991 U.S. LEXIS 7261 (U.S. 1991).

Comments made by a prosecutor during his closing argument in a capital murder prosecution did not constitute prosecutorial misconduct, where the prosecutor stated that the victim was a human being and had a right to be protected by the law even though he may not have been wealthy or prominent or a leader in his community, in spite of the defendant’s argument that the “value” of the victim’s life should not be a factor in considering whether the defendant should live or die and that such a consideration introduces an arbitrary factor into the process, since the prosecutor’s statement was innocuous. Mackbee v. State, 575 So. 2d 16, 1990 Miss. LEXIS 831 (Miss. 1990).

In a capital murder prosecution in which the defense counsel had argued that “there is only one person who can tell you if a reasonable doubt exists insofar as this case, and that’s each and every one of you,” the prosecutor’s rebuttal constituted an improper comment on the defendant’s failure to testify where it included a statement that “they tell you, there’s one man alive today who can tell you what happened, and I agree with that. There is one person who could tell you what happened and we have . . . a statement from him. We have a confession, an oral confession, we have a written confession . . . . . ” Such remarks directed the jury’s attention to the failure of the defendant to take the stand and admit or deny the contents of the confession. Griffin v. State, 557 So. 2d 542, 1990 Miss. LEXIS 50 (Miss. 1990).

Closing argument in which prosecuting attorney attempts to describe for jury in less than complimentary terms sort of person who would commit sort of crime involved in capital murder case is perfectly legitimate. Fisher v. State, 481 So. 2d 203, 1985 Miss. LEXIS 2281 (Miss. 1985).

Complaint regarding prosecution’s argument which includes calling upon diety, making reference to personal friendship of district attorney and homicide victim, personal remarks directed to defense counsel, personal belief in defendant’s guilt, and frustration in prosecuting homicide cases can quickly be dissipated by contemporaneous objection and ruling by circuit judge; if defense counsel chooses to wait until conclusion of argument to object, error may not be assigned on basis of argument. Johnson v. State, 477 So. 2d 196, 1985 Miss. LEXIS 2072 (Miss. 1985), cert. denied, 476 U.S. 1109, 106 S. Ct. 1958, 90 L. Ed. 2d 366 (U.S. 1986).

Presence of daughter of murder victim at counsel table and open display of emotion by daughter which presents jury with image of prosecution acting on behalf of daughter is impermissible. Fuselier v. State, 468 So. 2d 45, 1985 Miss. LEXIS 2035 (Miss. 1985).

Supreme court will not, on appeal from murder conviction, consider objection to remarks made by district attorney in his argument to jury, when no objection was offered to remarks at the time they were made, no bill of exceptions was taken, no motion for mistrial was asked by defendant, and trial judge was not asked for ruling. Woods v. State, 37 So. 2d 319 (Miss. 1948).

28. —Selection and removal of jurors.

Issue raised at trial and on direct appeal from an inmate’s capital murder conviction concerning the exclusion of a juror for failing to meet the qualifications of Miss. Code Ann. §13-5-1 was found to be without merit, and the issue was therefore barred pursuant to Miss. Code Ann. §99-39-21(2); because the trial court committed no error in excusing this juror and another juror for not meeting the qualifications under Miss. Code Ann. §13-5-1, then the attorneys were not ineffective for failing to object to the jurors’ dismissal, and in any event, the attorneys’ decisions regarding the final composition of the jury were generally determined to be matters of trial strategy. Smith v. State, 877 So. 2d 369, 2004 Miss. LEXIS 547 (Miss. 2004).

Prosecutor’s question to potential jurors asking whether they could conceive of imposing death penalty in murder case with no eyewitness was proper means of probing into their prejudices to get insight into their thoughts. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

Trial court acted within its discretion in excusing 4 potential jurors who stated that they probably could not impose death penalty when there were no eyewitnesses or fingerprints linking defendant to crime, and stated that they would need “a lot stronger proof” to change their position. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

Decision of whether or not to excuse potential juror based on bias against death penalty is left to trial judge’s discretion. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

For trial court to excuse potential juror for bias against death penalty, juror need not expressly state that he or she absolutely refuses to consider death penalty; equivalent response made in any reasonable manner indicating juror’s firm position will suffice. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

Prospective jurors in capital cases may only be excluded for cause based upon their views on capital punishment when those views would prevent or substantially impair performance of their duties as jurors in accordance with their instructions and oath. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

If prospective juror who is opposed to death penalty indicates that, if convinced of defendant’s guilt, he or she could return verdict of guilty which might result in death penalty, juror cannot be struck from jury. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

If prospective juror is irrevocably committed to vote against death penalty regardless of facts and circumstances, juror can be struck from jury. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

Four prospective jurors in capital murder case were properly excused after stating their inability to impose death penalty. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

Dismissal of doctor and 2 attorneys from jury did not deny defendant his rights to due process and to fair cross section of community; doctor was an emergency room physician who was working night shift, and attorneys were excused because they operated small businesses that could not afford to be closed. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

Trial court’s questioning and dismissal of 6 venire members who expressed opposition to the death penalty was adequate, even though defense counsel was not allowed to repeat questions in his own words to prospective jurors during court’s voir dire, where the trial court rephrased questions as requested, defense did not request permission to ask further questions, and there was no showing that further questioning would have rehabilitated dismissed venire members. Jackson v. State, 672 So. 2d 468, 1996 Miss. LEXIS 718 (Miss. 1996).

Under the Batson test, the prosecutor satisfied the burden of articulating a nondiscriminatory reason for striking a black juror where he explained that he struck the juror because the juror had long unkempt hair, a mustache and a beard, since the wearing of beards and long unkempt hair are not characteristics that are particular to any race. Purkett v. Elem, 514 U.S. 765, 115 S. Ct. 1769, 131 L. Ed. 2d 834, 1995 U.S. LEXIS 3181 (U.S. 1995).

Defense counsel’s extensive voir dire of venire members regarding attitudes toward death penalty precluded claim on appeal that trial court’s inadequate voir dire questioning permitted seating of jurors with bias in favor of death penalty. Jackson v. State, 672 So. 2d 468, 1996 Miss. LEXIS 718 (Miss. 1996).

Fact that 10 of 14 jurors and alternates were women precluded claim that prosecution engaged in improper gender based discrimination when exercising peremptory chal