WALKER, C.J., FOR THE COURT ON PARTS I, II, AND III:
HAWKINS, P.J., FOR THE COURT ON PART IV:
The appellant, Grady Smith, was indicted in the Circuit Court of Jackson County for the crime of capital murder arising out of the death of William Carter during the course of a burglary. He was then tried, convicted and sentenced to be executed. He appeals from that conviction and sentence.
On February 24, 1983, Grady Smith shot and killed William Carter. Smith testified in his own behalf. On the day in question he went to the home of Helen Loper, a widow. Following the death of Helen's husband, Smith helped her by making repairs in and around her trailer as well as offering financial assistance. Although he did not live with Ms. Loper, Smith testified they were man and wife as they had said their vows, without benefit of clergy, in her car outside her trailer on May 7, 1982. He vowed to," . . . take this little woman, Helen Loper, to be my wife, to love and cherish until death do us apart, so help me, God. "Only Smith, Helen and God were privileged to this information. They shared the news of their" marriage "with no one else for fear Helen would lose her widow's benefits from social security.
Upon arriving at Helen's, on February 24th, Smith realized William Carter was already at her trailer. Smith called Carter outside and asked why he (Carter) was there. According to Smith, Carter threatened to kill him saying," You're not going to run me away from here, . . . I'll kill you. You can't take her . . . that she is a widow and I can demand . . . control over her . . . She's got something to say about it. "Smith informed Carter that he was going to get his gun and would be back and" I would kill him before he killed me. "
After getting his gun, Smith went looking for Carter at Carter's sister's trailer. Carter was not there and Smith assumed he (Carter) had gone to get a gun. Smith passed Carter on the road and followed him to the house of Helen Erckhart, another of Carter's sisters. Carter stopped, got out of his truck and ran toward the house. Smith believed Carter was going after a gun. Smith shot, and testified that Carter" was hit and hit hard. "Carter fell and disappeared into the house. Smith ran up to the doorstep and observed Carter inside resting on one knee.
Carter was still alive. Smith's plan was" to finish killing him or get killed. "Helen Erckhart grabbed Smith's gun and pushed him off the doorstep. Both Helen and Smith tussled over the gun in the yard. Helen fell and Smith was able to free himself and the gun and ran back to the doorstep. He saw Carter stooped over by a bar-type counter" doing something behind the counter. "Smith testified" I don't know whether he was getting a gun or trying to. "Smith claimed he never entered the house but was on the doorstep when he shot Carter" over that bar counter. "His testimony was that the front door opened into the kitchen and denied that the photographs entered into evidence of the front door depicted the door he approached when he fired the fatal shots.
Helen Erckhart testified that Smith got out of his truck armed with a gun and shot her brother before he was able to reach the house. Carter fell into the doorway and crawled into the living room. Smith followed Carter armed with his gun. Smith pointed the gun down at Carter and Helen picked it up and" pushed him back out the door. "According to Helen, Smith knocked her down and kept hitting her until he had control of the gun. She pleaded" with him not to do it, not to go back in the house. "Helen stated" he (Smith) went on back in the house and shot two more times and then went on back out the back door and got in his truck. "
The jury, after finding Smith guilty of capital murder, found the aggravating circumstances outweighed the mitigating circumstances and imposed the death penalty.
THE COURT ERRED IN REFUSING TO DIRECT A VERDICT IN FAVOR OF APPELLANT, IN THAT THE STATE FAILED TO MEET ITS BURDEN OF PROOF ON THE CHARGE OF CAPITAL MURDER.
Appellant asserts that although he was indicted for capital murder, i.e., the killing of a human being when done while engaged in the commission of the crime of burglary, the State failed to prove that there was a `breaking', a necessary element of the crime of burglary. He contends" If there was any breaking and entering, it was merely a continuation of a crime already in progress that had started outside the house in the yard. "
Appellant was indicted for capital murder pursuant to Mississippi Code Annotated section 97-3-19 (2)(e) (1972) as amended. The underlying felony charged elevating the crime of murder to capital murder was burglary. Burglary is defined in Mississippi Code Annotated section 97-17-21 (1972) in pertinent part as follows:
Every person who shall be convicted of breaking and entering, in the day or night, the dwelling house of another, in which there shall be, at the time, some human being, with intent to commit some crime therein, either by forcibly bursting or breaking . . . or by breaking in in any other manner . . . shall be guilty of burglary. . . . (Emphasis added)
The testimony with regard to whether Smith entered Erckhart's home was conflicting. Smith denied he went into the house and alleged he fired the fatal shot from the outside doorstep.
The front door led into the living room which was approximately twelve (12) to fifteen (15) feet long. Taking a left and travelling this distance one would then step down into the kitchen area. The victim was found near a breakfast bar approximately another ten (10) to twelve (12) feet inside the kitchen. According to Dr. Dennis Magee, who performed the autopsy, the fatal shot was fired from close range, i.e., a distance of five (5) feet or less. The sheriff of George County, the county where the crime occurred, testified two spent shotgun shells were found in the kitchen area and one was found outside. Smith testified he fired once while Carter was in the house and the spent shell fell from the gun into the home. During trial Smith maintained the photographs depicting the front door was not the door where he stood when the fatal shot was fired. However, he could not explain how the front door got full of buckshot holes if it were not the door in the picture. He testified the front door, where he stood, led into the kitchen. Helen Erckhart testified the appellant entered at the front door which led into her living room. Karen Reeves, a relative of Erckhart's, testified she observed Carter go inside the front door, saw Smith as he approached the house, and watched as Helen pushed Smith back out of the house. She also observed Smith hit Helen, knock her down on the ground and then proceed inside the house.
In State v. Jolly, 297 N.C. 121, 254 S.E.2d 1 (1979), the defendant was convicted of first degree burglary and armed robbery and appealed to the Supreme Court of North Carolina. The court defined breaking as" . . . any act or force, however, slight, `employed to effect an entrance through any usual or unusual place of ingress, whether open, partly open, or closed.\rquote "The court noted that a breaking could be actual or constructive and defined a constructive breaking as one which occurs when entrance is obtained in consequence of violence commenced or threatened by defendant. The evidence in Jolly showed the defendant gained entry into the victim's motel room by pushing the victim into the room as he opened the door, constituting a constructive breaking.
In the case sub judice the jury could have and evidently did believe Erckhart's testimony that Smith forcibly entered her home through the front door over her protest after overpowering her by knocking her down as she tried to block his way and prevent his entry. We are of the opinion and so hold that Smith's acts constituted a breaking and entering contemplated by 97-17-21 and that the defendant's motion for a directed verdict was properly overruled.
THE COURT ERRED IN OVERRULING THE APPELLANT'S MOTION TO REDUCE THE CHARGE OF CAPITAL MURDER TO THAT OF MURDER.
The appellant asks this Court to adopt what is known as the" merger doctrine "whereby the crime of burglary, being an integral part of the murder under these facts, would merge into the crime of murder. If this Court should adopt this reasoning the appellant could only have been convicted of murder and not capital murder. His contention is premised on the theory that the burglary under the facts of this case is not a separate criminal act but is an integral part of the murder committed.
As this is a case of first impression, the appellant relies on decisions from the Courts of California to support his contention. In particular, he refers us to People v. Wilson, 82 Cal. Rptr. 494, 462 P.2d 22 (1969) wherein the California Supreme Court held that a burglary committed during the course of an independent intent to assault with a deadly weapon but which resulted in killing the victim constituted a ...