BEFORE PATTERSON, DAN LEE AND SULLIVAN
SULLIVAN, JUSTICE, FOR THE COURT:
Neal Gray and Charles Allen Nations were jointly tried and convicted in Yazoo County Circuit Court of conspiring to distribute more than one kilogram of marijuana. Gray was sentenced to twenty (20) years, with two (2) years suspended, and fined $100,000.00. Nations was sentenced to twenty (20) years, with five (5) years suspended, and fined $25,000.00.
Both men, along with four others, were indicted for conspiring, in violation of Mississippi Code Annotated 97-1-1 (Supp. 1985), to distribute more than one kilogram of marijuana, the object of that conspiracy being a felony in violation of Mississippi Code Annotated 41-29-139 (a)(1) and (b)(1) (Supp. 1985).
Nations has already been convicted of the sale of this marijuana and sentenced to a term of eight (8) years, with four (4) years suspended, in the Department of Corrections. Nations v. State, 481 So.2d 760 (Miss. 1985).
Gray has also already been convicted of the same sale and sentenced to a term of twenty (20) years, with ten (10) years suspended. Gray v. State, 481 So.2d 763 (Miss. 1985).
On the evening of March 3, 1983, in Satartia, Yazoo County, Mississippi, two undercover agents for the Mississippi Bureau of Narcotics, Norman Willingham and Eddie Berry, arranged to buy 50 pounds of marijuana from Donald Lungrin and his associates, among whom were Earl Harris, Neal Gray and Allen Nations. Final arrangements for the sale were completed at Lungrin's mobile home and the exchange of the drugs and the purchase money was to take place at a dump site where the drugs had been stashed. Gray was supposed to watch the transfer from the woods, while Harris was to actually carry it out. At the moment of sale, the agents arrested Harris and sought Gray. Nations, Lungrin
and others were later arrested at Lungrin's mobile home. Gray was arrested the next day at his home.
Harris and Lungrin pled guilty to the conspiracy, and Gray and Nations were set for trial on November 15, 1983.
JOINT ASSIGNMENTS OF GRAY AND NATIONS
WAS IT PLAIN ERROR TO GRANT INSTRUCTIONS S-1 and S-2?
The two instructions complained of are as follows:
The Court instructs the jury that the act of any conspirator is the act of all of the conspirators, and each is responsible for the acts of the others, and if you believe from the evidence in this case beyond a reasonable doubt that an agreement or understanding to distribute Marijuana existed on March 3, 1983 in Yazoo County, Mississippi, and that Neal Gray and Allen Nations knowingly participated in said agreement or understanding, or knowingly did any act in furtherance of said agreement, then each is responsible for the acts of the other. (emphasis added to part complained of)
The Court instructs the jury that a conspiracy is an agreement or understanding between two or more people to commit a crime, and if you believe from the evidence in this case, beyond a reasonable doubt, that on or about the 3rd day of March, 1983, there existed in Yazoo County, Mississippi an agreement or understanding between two or more persons to distribute Marijuana in amounts of more than one kilogram, and that Neal Gray and Allen Nations knowingly participated in, or were knowingly part of, or did any act in furtherance of said agreement or understanding,
it is your sworn duty to find them guilty as charged. (emphasis added to part complained of)
Most recently we defined conspiracy in Griffin v. State, 480 So.2d 1124 (Miss. 1985), as follows:
Conspiracy is a combination of two or more persons to accomplish an unlawful purpose or to accomplish a lawful purpose unlawfully, the persons agreeing in order to form the conspiracy. The offense is complete without showing an overt act in furtherance of the conspiracy. Norman v. State, 381 So.2d 1024 (Miss. 1980); Moore v. State, 290 So.2d 603 (Miss. 1974); Pickett v. State, 139 Miss. 529, 104 So. 358 (1925).
There must be recognition on the part of the conspirators that they are entering into a common plan and knowingly intend to further its common purpose. McDonald v. State, 454 So.2d 488 (Miss. 1984). If there is an agreement, then knowledge of that agreement follows. The agreement need not be formal or express, but may be inferred from the circumstances, particularly by declarations, acts, and conduct of the alleged conspirators.
Id. See also McCray v. State, No. 55,767 (Miss., decided March 26, 1986) (not yet reported); James v. State, 481 So.2d 805 (Miss. 1985).
In discussing what evidence is admissible in a conspiracy case, we said, "Commission of an offense is admissible as showing the conspiracy, since what the defendants actually did is evidence of what they intended to do." Id. We cited King v. State, 123 Miss. 532, 86 So. 339 (1920), for this proposition. We later said, "[A]ll that must be shown is a concert of free will and conspiracy may be proved by acts of the parties or by circumstances as well as their agreement." Griffin, 480 So.2d at 1127.
From these cases, it can be said that evidence that
an alleged co-conspirator did an act in furtherance of a conspiracy is evidence against him that he was a co-conspirator. However, the fact that he did do an act in furtherance of a conspiracy does not per se make him a co-conspirator. See Davis v. State, No. 56,140 (Miss., decided March 12, 1986) (not yet reported).
Instructions S-1 and S-2 appear to allow the jury to find Gray and Nations guilty of conspiracy based only upon acts in furtherance of the conspiracy without requiring a separate finding that they knowingly became part of the agreement to commit a crime. To this extent, they are erroneous.
However, no objection was made by either defendant to either of these instructions. The issue presented then is whether this assignment should be considered in order to avoid manifest injustice.
Rule 42 of the Mississippi Supreme Court Rules provides that objections to instructions are waived if a specific objection to the instruction is not made in the trial court. See, e.g., Billiot v. State, 454 So.2d 445, 462 (Miss. 1984). This is true even if the erroneous instruction deals with elements of the crime. See, e.g., Hull v. State, 350 So.2d 60 (Miss. 1977). It is clear, however, that under Rule 42 this Court may raise an objection to a jury instruction in order to prevent manifest injustice. In Williams v. State, 445 So.2d 798 (Miss. 1984), the Court stated the general rule first mentioned above and then said the following: Moreover, the ground relied upon in the assignment of error should be one of the grounds stated in the objection to the lower court. . . . Perhaps, the best single explanation of the principles undergirding Rule 42 is stated in Rayburn v. State, 312 So.2d 454 (Miss. 1975), wherein the Court stated:
It is essential that specific objections to instructions be made to the trial judge, in order that errors and omissions may be corrected or supplied before any possible harm can result. A defendant may not tacitly reserve an objection at that point, or wait until after a guilty verdict is returned, meanwhile having availed himself of the chance to
be acquitted, or call attention to an omission or error for the first time on appeal in order to have his conviction set aside.
To further the practice of what we consider to be an important and necessary rule, we decline to address this issue on its merits for it is procedurally barred.
Id. at 807-08 (citations omitted).
We now turn to the four cases cited by the appellants as our precedent to exercise our option under Rule 42 on instructions to consider objections which were not made in the trial court. In Wall v. State, 379 So.2d 529 (Miss. 1980), we reversed under Rule 42. However, in Wall, we were faced with an abstract instruction on the law, and Wall was convicted solely on the testimony of two admitted murderers and accomplices. In Magee v. State, 365 So.2d 302 (Miss. 1978), we reversed under Rule 42 because the only instruction given by the state was not supported by the evidence. In McMullen v. State, 291 So.2d 537 (Miss. 1974), we reversed because the instructions were so erroneous and prejudicial that taken in toto they prevented McMullen from receiving a fair trial. In Toney v. State, 298 So.2d 716 (Miss. 1974), we reversed because we could not say that the instruction, when read together with the others, was harmless since the court refused to give the only two instructions on self-defense offered by the appellant.
We consider these cases readily distinguishable from the situation here, and we do not consider that manifest injustice requires us to exercise our option under Rule 42.
Furthermore, another well-settled principle of Mississippi law concerning instructions points to the conclusion that the giving of the instructions was not reversible error even if we consider the assignment. In McLelland v. State, 204 So.2d 158 (Miss. 1967), this Court said the following:
Appellant also assigns as error the giving of an instruction for the State pertaining to false uttering in that the instruction
failed to set out as an essential element that the appellant must have knowingly uttered and published the check with intent to defraud. In Smith v. State, 220 Miss. 67, 70 So.2d 56 (1954) this Court held that the absence from the state's instruction of the necessary element of intent to defraud was cured by the inclusion of all the necessary elements of the crime in the instructions given for the defendant. This Court has held with metronomic regularity that all instructions are to be considered together as a whole and that no error can be predicated upon the failure of one instruction to set out a necessary element of the crime which is included in another instruction. (citations omitted)
Id. at 164. See also Johnson v. State, 475 So.2d 1136 (Miss. 1985); Glenn v. State, 439 So.2d 678 (Miss. 1983); Norman v. State, 385 So.2d 1298 (Miss. 1980).
Instruction D-1, which was granted, is as follows:
A conspiracy is a combination of two or more persons to accomplish some unlawful purpose or to accomplish some lawful purpose by unlawful means. In this case, the State must prove beyond a reasonable doubt, in order to establish proof that a conspiracy existed, is that each defendant in some way or manner, or through contrivance, positively or tactitly came to a mutual understanding to try to accomplish a common and unlawful plan to distribute marijuana as alleged in the indictment.
Before the Jury may find that a defendant has become a member of a conspiracy, the evidence in the case must show beyond a reasonable doubt that the conspiracy was knowingly formed and that each defendant or other person claimed to have been a member, willfully, unlawfully and feloniously conspired, combined, confederated and agreed to participate in the unlawful plan, with intent to advance or further some object or purpose of the conspiracy to distribute
marijuana, and if the state has failed to prove such to your satisfaction beyond a reasonable doubt, it is your sworn duty, as jurors, to return a verdict of "Not Guilty."
Instruction D-4, which was also granted, is as follows:
The Court instructs the Jury that mere presence of a defendant or the association of a defendant with other persons or person engaged in unlawful activities is not within itself sufficient to establish guilt on the part of a defendant.
The Court further instructs the jury that a person who has no knowledge of a conspiracy, but happens to act in a way which furthers some object or purpose of the conspiracy, does not thereby become a conspirator.
Before the Jury in this case may find that a defendant, or any other person, has become a member of a conspiracy, the evidence in the case must show beyond a reasonable doubt that a conspiracy was knowingly formed and that the defendants, or other person who is claimed to have been a member, did willfully, unlawfully and feloniously conspire, confederate and agree together and with each other to unlawfully distribute ...