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OCTOBER 16, 1985





This appeal presents important questions respecting the nature and extent of the trial judge's responsibility with regard to instructing juries in the law in criminal cases. We answer these questions by declaring that, where under the evidence a party is entitled to have the jury instructed regarding a particular issue and where that party requests an instruction which for whatever reason is inadequate in form or content, the trial judge has the responsibility either to reform and correct the proffered instruction himself or to advise counsel on the record of the perceived deficiencies therein and to afford counsel a reasonable opportunity to prepare a new, corrected instruction. Where the trial judge fails in this duty and where the proffered instruction relates to a central issue in the case which is not covered by any other instruction given to the jury, we will reverse.

 All of this arises in the context of a burglary prosecution in Hinds County Circuit Court wherein the accused emboldened by intoxication came right through a plate glass window on the front of the victim's occupied dwelling. The accused's breaking and entering were far more picturesque and dramatic than in the normal mundane burglary case, and the evidence was legally adequate to establish such. Because, however, under the evidence the accused was entitled to have the jury consider whether he was guilty only of the lesser included offense of trespassing and because en route to refusing him that right the trial judge fell short of performance of his duty as described above, we reverse and remand for a new trial.


 This case has its genesis in an unhappy domestic situation, John L. Harper, Defendant below and Appellant here, and his wife, Cathy, were divorced on October 10, 1981. Custody of their young daughter, Candice, was given to Harper's ex-wife. On November 5, 1982, Harper's ex-wife married a man named Jeff Foster. Harper was upset by this but became particularly agitated when his ex-wife told him that she and her new husband were thinking of moving to Texas and taking the little girl with them.

 On the night of November 11, 1982, Harper got drunk and at around 2:30 a.m. drove out to the home of his ex-wife and her new husband. Harper kicked on the door and woke everyone up and demanded that he be allowed to see his daughter before

 they moved to Texas. Not surprisingly, Harper was refused entrance. He was told he could exercise visitation on the weekends as prescribed by the divorce decree. Harper left, got in his vehicle and drove off, and the Fosters started back to their bedroom. Before getting there, they heard a crash in the living room area. Still highly intoxicated, Harper had returned, kicked out a four foot by eight foot picture window and burst through into the living room. Foster testified that Harper said he (Harper) was going to kill him (Foster). In any event, harsh words were exchanged as Harper, unarmed, came down the hall, at which point Foster fired two shots hitting Harper in the stomach and shoulder. According to Foster, Harper kept saying he was going to fight him (Foster). Foster was able to hold Harper on the floor, the police were called and Harper was taken into custody.

 The evidence regarding the events of the night of November 11, 1982, was the subject of some dispute at trial. Primarily, Harper consistently denied any intent to harm anyone or commit any crime once inside the Foster home. He repeatedly said that his only purpose in going into the home was to see his child before she was taken to Texas. He insisted that Foster had provoked the physical altercation by drawing and firing a firearm.

 For his efforts of the evening, Harper was indicted by the Grand Jury of the First Judicial District of Hinds County, Mississippi, for burglary of an inhabited dwelling. Miss. Code Ann. 97-17-21 (1972). Necessarily - and this is important to one of the issues to be discussed below - Harper was charged with unlawfully breaking and entering the Foster home "with intent to commit some crime therein" . At trial the State sought to prove that Harper broke and entered with intent to commit an assault upon Jeff Foster, his ex-wife's new husband. In due course Harper was found guilty of burglary of an inhabited dwelling and on January 24, 1984, sentenced to ten years imprisonment, five years of which were suspended. Harper now appeals his conviction and sentence.


 Harper first assigns as error the trial judge's refusal to grant his motion for judgment of acquittal notwithstanding the verdict. That motion, of course, functionally operated as a renewal of Harper's request for a peremptory instruction made at the conclusion of all of the evidence and after both sides had rested. The legal basis of the motion was Harper's suggestion that the evidence was insufficient as a matter of law to establish an essential element of the offense, to-wit: That when he literally broke and entered the Foster home he

 did so with intent to commit some crime therein. Harper says that he only wanted to see his daughter before his ex-wife took her to Texas.

 Harper's state of intoxication on the occasion in question, indisputably extensive, does not operate to negative criminal intent in cases such as this. Cummings v. State, 465 So. 2d 993, 995-96 (Miss. 1985); McDaniel v. State, 356 So. 2d 1151, 1161 (Miss. 1978). Harper does not seriously argue to the contrary.

 The fatal flaw in Harper's assignment is that it ignores firmly established and lawfully imposed limitations upon our scope of review of jury verdicts in criminal cases. Where a defendant in a criminal prosecution has requested a peremptory instruction in a criminal case or after conviction renewed that request via a motion for judgment of acquittal notwithstanding the verdict, the trial judge must consider all of the evidence - not just the evidence which supports the State's case - in the light most favorable to the State. Williams v. State, 463 So. 2d 1064, 1067 (Miss. 1985); May v. State, 460 So. 2d 778, 781 (Miss. 1984); Sadler v. State, 407 So. 2d 95, 97 (Miss. 1981). The credible evidence which is consistent with the verdict must be accepted as true. Warn v. State, 349 So. 2d 1055, 1056 (Miss. 1977); Spikes v. State, 302 So. 2d 250, 251 (Miss. 1974); Cochran v. State, 278 So. 2d 451, 453 (Miss. 1973). The State must be given the benefit of all favorable inferences that may reasonably be drawn from the credible evidence. Glass v. State, 278 So. 2d 384, 386 (Miss. 1973). If the facts and inferences so considered point in favor of the defendant with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty, granting the peremptory instruction or j.n.o.v. is required. Williams v. State, 463 So. 2d at 1067. On the other hand, if there is substantial evidence opposed to the ...

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