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State v. Shaw8/12/2004
on for assault with intent to rape vacated. This Court held that assault with intent to rape was a lesser included, constituent offense of forcible rape permitting the guilty plea of assault with intent to rape to stand. Id. at 440.
. In Hailey v. State, 537 So. 2d 411 (Miss. 1988), Hailey was convicted of child fondling; however, this Court reversed the conviction finding that the rape indictment did not sufficiently notify Hailey as to the possibility of a child fondling charge. We noted that the elements of rape are (1) carnal knowledge, (2) without consent and by force and (3) of a female child age 12 years or upward. Miss. Code Ann. § 97- 3-65(2). See also Hailey, 537 So. 2d at 414. We further noted that the elements of child fondling are (1) handling, touching or rubbing, (2) of a child under the age of 14 years, (3) by a person above the age of 18 years and (4) for purposes of gratifying lust or indulging licentious sexual desires. Miss. Code Ann. § 97-5-23. See also Hailey, 537 So. 2d at 414. This Court held that under the notice requirements of the then-existing Unif. Crim. R. Cir. Ct. Prac Rule 2.05, the indictment charging rape did not "sufficiently notify Hailey that he might face a charge of child fondling." Id. at 416.
Since child fondling could not be a necessarily included offense of forcible rape either as a matter of law or under the indictment, and there was not an additional count in the indictment alleging child fondling, under our rules, under the constitutions of both the United States and of the State of Mississippi, and under Miss. Code Ann. § 99-19-5 (1972), an instruction on child fondling should not have been given.
Id. at 416.
. I was the trial judge in Hailey, and quite frankly, after this Court's pronouncement in Hailey, notwithstanding the fact that Hailey was not a murder case, I was of the opinion that in a murder case, a manslaughter instruction could be given only if (1) supported by the evidence, and (2) if requested or agreed to by the defendant. In other words, if the defendant chose to "roll the dice" and go all or nothing on murder, then the defendant had that option and a manslaughter instruction could not be given sua sponte by the trial court or upon request of the State, if the defendant objected.
. In Harris v. State, 723 So.2d 546 (Miss. 1997), Harris was convicted on an unindicted charge of aggravated assault following a directed verdict of acquittal on charges of deliberate design murder. This Court reversed the case finding that the State should not have been allowed to proceed on the theory that aggravated assault was a lesser included offense of deliberate design murder. Id. at 547. This Court held that once a trial court determines that the State has failed to prove its burden on the indicted charge and, therefore, grants a directed verdict, the State's case is concluded and the State is prevented from trying the defendant on the unindicted offense. Id. at 547-48.
. In a specially concurring opinion in Porter v. State, 616 So.2d 899 (Miss. 1993), Chief Justice Hawkins clearly defined a "lesser-included offense" as: one in which all its essential ingredients are contained in the offense for which the accused is indicted, but not all of the essential ingredients of the indicted offense. An accused could not be guilty of the offense for which he is indicted without at the same time being guilty of the lesser included offense. The lesser included crime is encompassed within the crime for which the accused is indicted. Harper v. State, 478 So.2d 1017, 1021 (Miss.1985). There may very well be a separate, distinct and less serious crime which the proof at trial shows the defendant committed, b
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