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[W] State v. Shaw10/9/2003
charge of murder, the prosecution asked the trial judge to proceed on the unindicted charge of aggravated assault. After Shaw was given a directed verdict on the charge of murder, the prosecution asked the trial judge to proceed on the unindicted charge of manslaughter. Manslaughter and aggravated assault are not lesser- included offenses of murder. It follows that both prosecutors erred in thinking that the trial judge should allow them to proceed on lesser charges for which neither defendant was indicted.
. Sixth, the State argues that since this Court has power to correct a jury verdict and find a defendant guilty of a lesser-included offense and remand for sentencing, this Court should find that a trial court upon motion for a directed verdict can find a defendant guilty of a lesser-included offense. The State cites Alford v. State, 656 So.2d 1186 (Miss. 1995).
. While it is true that this Court on appeal has found defendants guilty of lesser-included offenses, that does not support the conclusion that a trial court should be able to give a charge of a lesser offense for which a defendant has not been indicted. In Alford, the defendant was convicted of burglary of an inhabited dwelling. 656 So.2d at 1187. We held that the State had failed to prove an essential element to burglary, but Alford was guilty of the lesser-included offense of trespass. Id. at 1192. Again, we were passing upon a lesser-included offense. Manslaughter is not a lesser-included offense of murder.
. Since manslaughter is not a lesser-included offense of murder, the trial judge was correct in denying the State's motion to proceed on the unindicted crime of manslaughter after he directed verdict in favor of Shaw on the indicted charge of murder.
CONCLUSION
. We affirm the trial court in its application of our holding in Harris. A defendant under indictment for murder is not sufficiently on notice of the possible submission of the charge of manslaughter. The fact that a trial judge is permitted to submit to a jury a lesser-included charge does not justify the submission of a purely "lesser charge." Our decision in Ostrander and case law from other jurisdictions are not contrary to our holding in Harris. Contrary to the State's argument, manslaughter is not a lesser-included offense of murder. The facts of this case are similar to Harris. Furthermore, our precedent of holding defendants guilty of lesser-included offenses does not justify proceeding on an unindicted lesser offense.
. PRESENTED QUESTION ANSWERED.
PITTMAN, C.J., EASLEY AND CARLSON, JJ., CONCUR. WALLER, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY SMITH, P.J., AND COBB, J. DIAZ AND GRAVES, JJ., NOT PARTICIPATING.
WALLER, JUSTICE, DISSENTING:
. Because the majority errs in concluding that manslaughter is not a lesser-included offense of murder, I respectfully dissent.
. Manslaughter is a lesser-included offense of murder because: (1) Harris v. State, 723 So.2d 546 (Miss. 1997), does not apply; (2) our case law clearly states that manslaughter is a lesser-included offense of murder; and (3) the applicable statute allows the jury to decide whether the defendant is guilty of a lesser-included offense.
. Harris is inapplicable because manslaughter is a lesser-included offense of murder. The reliance by the majority opinion on Harris is misplaced. Harris deals with a lesser offense and has no bearing on a lesser-included offense because " rucial to that decision [Harris] is the fact that, under our longstanding precedents, assault is not viewed as a lesser-included offense to the crime of murder." Wolfe v. State, 743 So. 2d
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