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[W] State v. Shaw10/9/2003
380, 387 (Miss. 1999) (Banks, J., dissenting). See also Fulcher v. State, 805 So. 2d 556, 560-61 (Miss. Ct. App. 2001).
. We have consistently held that an indictment for murder includes the lesser-included charge of manslaughter:
The long-standing common-law rule is that an indictment for murder includes all lower grades of felonious homicide. Under this general rule, "on an indictment charging murder generally an accused may be found guilty of manslaughter . . . and, where manslaughter has been divided by statute into degrees, of any of the statutory degrees." 42 C.J.S. Indictments and Informations, § 280 (1944). This Court has repeatedly applied the general rule and upheld convictions of manslaughter obtained under an indictment for murder. Wells v. State, 305 So. 2d 333 (Miss. 1974); Roberson v. State, 257 So .2d 505 (Miss. 1972); King v. State, 251 Miss. 161, 168 So. 2d 637 (1964); Calicoat v. State, 131 Miss. 169, 95 So. 318 (1922).
Kelly v. State, 463 So. 2d 1070, 1073 (Miss. 1985).
. The fact that manslaughter proof is inconsistent with that of murder is of no consequence. " y way of analogy, we consider heat of passion manslaughter a lesser-included offense to the charge of murder, even though that particular form of manslaughter contemplates proof of facts inconsistent with the principal charge of murder." Grayer v. State, 519 So. 2d 438, 440 n.3 (Miss. 1988) (quoting Isom v. State, 481 So. 2d 820, 824-25 (Miss. 1985) (Robertson, J., concurring)). Manslaughter is a lesser-included offense of murder. Id. at 825.
. The Court of Appeals has also addressed the murder-manslaughter issue and stated, " n order to authorize [a lesser-included offense] instruction the more serious offense must include all the elements of the lesser offense, that is, it is impossible to commit the greater offense without at the same time committing the lesser-included offense." Hester v. State, 841 So. 2d 158, 162 (Miss. Ct. App. 2002) (quoting Shannon v. State, 739 So. 2d 468 (Miss. Ct. App. 1999) (quoting Sanders v. State, 479 So. 2d 1097, 1098 (Miss. 1985))). The Court of Appeals found that manslaughter is a lesser-included offense of murder under the Shannon test. Hester, 841 So. 2d at 162.
. Along with our case law, our statutory law clearly allows the jury to find a defendant guilty for an "inferior offense" of the offense charged in the indictment.
On an indictment for any offense the jury may find the defendant guilty of the offense as charged, or of any attempt to commit the same offense, or may find him guilty of an inferior offense, or other offense, the commission of which is necessarily included in the offense with which he is charged in the indictment, whether the same be a felony or misdemeanor, without any additional count in the indictment for that purpose.
Miss. Code Ann. § 99-19-5 (2000) (emphasis added).
. Since manslaughter is a lesser-included offense of murder, the jury here should have been allowed to decide whether Shaw is guilty of that lesser-included offense.
. For these reasons, I respectfully dissent.
SMITH, P.J., AND COBB, J., JOIN THIS OPINION.
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