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State v. Shaw8/12/2004
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99-7-37(2) An indictment for murder or capital murder shall be sufficient to also charge the lesser offense of manslaughter without a specific allegation of such lesser crime and without any necessity for an additional count charging such lesser crime.
Section 3. Section 99-19-5, Mississippi Code of 1972, is amended as follows:
99-19-5(2) For purposes of this section, manslaughter shall be considered a lesser included offense of murder and capital murder, and the jury may be properly instructed thereon, upon request by either party or upon the court's own motion, in any case in which the giving of such instruction would be justified by the proof, consistent with the wording of the applicable manslaughter statute.
. However, because this amendment is not retroactive, it does not apply to the case sub judice.
. On the other hand, it should be abundantly clear to the trial bench and bar that pursuant to clear legislative intent expressed via Senate Bill 2438, a murder indictment will unequivocally put any defendant on notice that he/she is also subject to being prosecuted for manslaughter, and that a properly worded manslaughter instruction may be given in any case in which such instruction is justified by the evidence.
. While I am pleased that the excellently written majority opinion clears up the confusion wrought by our initial decision in this case on October 9, 2003, I must respectfully dissent from today's majority opinion, because Judge Terry correctly applied the then-current law in granting a directed verdict and ending the case without allowing the State to go forward with a manslaughter prosecution.
COBB, P.J., JOINS THIS OPINION.
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