BEFORE PATTERSON, C.J.; HAWKINS AND ROBERTSON, JJ.,
ROBERTSON, JUSTICE, FOR THE COURT:
Today's decision is of a sort that many people have difficulty understanding. The conviction of two men for planning the reprehensible contract murder of the ex-wife of one must be reversed because the trial judge erroneously instructed the jury.
Reflection brings to mind that our conduct is subject to the rule of law, not the caprice of men. There is no offense without a law. The legislature of this state has made unlawful criminal conspiracy and defined the contours of that crime. When these Defendants were tried under that law, however, the instructions given the jury were so worded that the jurors may well have convicted upon factual determinations insufficient in law to constitute this statutorily defined offense.
That there must be in any society subscribing to the rule of law congruence between official actions and declared rule seems axiomatic. If we allow to stand convictions infected by the substantially erroneous declaration to the jury of the controlling rule of law, we denigrate the essence of the principal of legality. We reverse today and hope that by our so doing the principal of legality, to whose star our wagon has for these two centuries been hitched, will be enhanced beyond the cost of this temporary thwarting of the apparent demands of justice.
On October 13, 1981, Fay James appeared before the Chancery Court in Clarksdale, Mississippi, and was granted a divorce from her husband, Billy Newton James, on terms quite favorable to her. The final decree provided that Fay James was to receive $2,500.00 a month plus a lump sum settlement of $100,000.00 to be paid in installments of $10,000.00 each year, the first installment being due on January 1, 1982. Mrs. James also received the house and property. These terms were subsequently modified to lower the monthly amount to $1,000.00.
Rather than return to chancery court for further relief, Billy James, one of the Defendants below and one of the Appellants here, decided to have his wife killed and proceeded to hire the job done. On a Saturday afternoon in December of 1981, James met with Calvin Kenneth Bramlett, the other
Defendant-Appellant, and William Michael Griffin at Bramlett's home in Tippo, Mississippi. Also present was Willie Miller, James' neighbor and girlfriend.
The plan made at this meeting was that Griffin was to kill Fay James before the first of the year (when the first payment was due). Griffin was to go into her home while she was going out to get the paper on Sunday morning and then kill her when she came back into the house. Griffin was to get $2,500.00 to do the job, $1,500.00 then and $1,000.00 after the job was done. Griffin in fact received payment of $1,500.00 on that day at that meeting. Bramlett was paid $1,000.00 at that same meeting for having arranged to have the job done. Both payments were made in cash.
As fate would have it, Griffin proceeded to contact Detective Nichols of the City of Memphis Police Department and advise him of the planned murder. Detective Nichols provided Griffin with a recorder with which to record any further conversations in or out on his home phone. He arranged for Griffin to be wired with a recording device for a meeting scheduled with Billy James on January 1 of 1982. Griffin had a conversation with James on the night he received the recorder but forgot to record it. Griffin did tape a conversation that took place on the evening of December 31, 1981, and then a second call later that same evening. The content of these conversations confirmed the object of the common plan.
Griffin met with James on January 1, 1982, at a country store at Enid Dam for the purpose of renegotiating the contract. According to Griffin, the original agreement was done away with because James was upset with Bramlett and had determined that Bramlett was not necessary for the killing. Under the new terms Griffin was to get $10,000.00; $2,000.00 on the 6th of January, and the balance in thirty days. James gave Griffin $500.00 that morning, which when added to the $1500.00 he had been given on the Saturday meeting in December, brought the balance paid to him to $2,000.00. Griffin used his $2,000.00 in part to buy a car that he was supposed to use in killing Mrs. James. He was also supposed to buy a gun but didn't. He spent the rest. The meeting at Enid Dam was both recorded and videotaped with Griffin's permission and assistance. Griffin immediately turned the money over to Detective Nichols after the meeting at Enid Dam.
Griffin had worked as a part-time informer for the Memphis Police Department off and on for a "couple of months" and was usually paid between $25.00 and $30.00 a week. He testified that he never intended to do the killing but was
only "bull shitting" . He was a paid police informer at the time he agreed to kill Fay James and had been paid about $75.00 by Detective Nichols by that time.
Jay Clark, a criminal investigator with the Mississippi Highway Patrol, arrested James as he was leaving the scene of the January 1, 1982 meeting at Enid Dam. He had waited at the top of the dam for radio transmission from the Memphis Police Department investigators that payment had been made. He then proceeded to stop James and advise him that he was under arrest for conspiracy to commit murder.
Bramlett's part in the alleged conspiracy was established via the confidential informant, Griffin. Griffin testified that he had known Bramlett for fourteen to fifteen years; that they were hunting and fishing buddies; and that he generally saw him once or twice a week. In December of 1981, he was over at Bramlett's house drinking beer and Bramlett told him that he "needed someone hit" . Griffin agreed to do it and on Saturday went with Bramlett to James' house. At that meeting the arrangements were made, with Griffin being paid $1,500 and Bramlett being paid $1,000.
Griffin subsequently talked to James on the 31st at which time they both agreed that Bramlett was out of the deal. He testified that as of that conversation, which took place around 2:30 on December 31st, that Bramlett was not a part of the conspiracy. In the period between the Saturday meeting and the 31st, however, Griffin spoke with Bramlett by phone six to eight times in reference to the killing of Fay James, and that during the course of those conversations Bramlett said, "If you don't do it, I'll wind up doing it myself."
Procedurally, this criminal action was commenced on December 10, 1982. On that date an indictment was returned by the Tallahatchie County Grand Jury charging Billy Newton James and Calvin Kenneth Bramlett with conspiracy to commit the capital murder of Fay James. Miss. Code Ann. 97-1-1 (a) and 97-3-19 (2) (d) (Supp. 1985).
On May 26, 1983, the case was called for trial in the Circuit Court sitting in Charleston, Mississippi. Three days later the jury found both James and Bramlett guilty as charged. Following the filing and denial of the usual post-trial motions, the Circuit Court on June 30, 1983, sentenced James to the custody of the Mississippi Department of Corrections for ...