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KENNETH WAYNE BEYERSDOFFER v. STATE OF MISSISSIPPI

FEBRUARY 17, 1988

KENNETH WAYNE BEYERSDOFFER
v.
STATE OF MISSISSIPPI



BEFORE DAN LEE, SULLIVAN AND ANDERSON

DAN LEE, PRESIDING JUSTICE, FOR THE COURT:

Kenneth Wayne Beyersdoffer was convicted of burglary of an automobile in the Circuit Court of Harrison County and sentenced to seven years in the custody of the Mississippi Department of Corrections as a habitual offender. Because of an incident involving the polling of the jury, we reverse and remand this case for a new trial.

FACTS

 On October 3, 1984, Kenneth Wayne Beyersdoffer, aged 20, Robert Wayne Welch, aged 18, and Danny Wheat, aged 16, were out on the town in Welch's Ford Pinto. Throughout the evening they had trouble with the Pinto battery, and had to jump-start the car several times. When they stopped at Bayou View Apartments to see a friend, the boys were unable to get the car started again.

 Beyersdoffer and Wheat volunteered to get a battery, leaving Welch in the car while they located an unlocked van in the apartment complex and raided it of its battery, a citizens band radio and stereo. They installed the battery in the Pinto and placed the other equipment on the floor of the back seat.

 Later that night, when the Pinto turned onto Cleve Avenue where Beyersdoffer lived, the police were on a stakeout because of numerous house burglaries in that neighborhood. They saw the Pinto approach the Beyersdoffer house without lights, Beyersdoffer get out of the car and place a car battery on the ground. They questioned the boys, assuming they had something to do with the house burglaries. A check with headquarters revealed no report of a stolen CB radio or stereo, and the boys were allowed to continue on their way, with the exception of the juvenile, who was detained when police were unable to locate his parents. The three were ultimately arrested and charged with burglary of an automobile.

 Wheat and Welch testified against the defendant at trial. The defendant rested his case without calling any witnesses in his behalf.

 State's instruction #5 informed the jury that

 . . aiding and abetting is defined to be the offense committed by those persons, who, although not the direct perpetrators of a crime are yet present at its commission, doing some act to render aid to the actual perpetrator; and that such aiding and abetting may be manifested by acts, words, signs, notions, or any conduct which unmistakably evinces a design or encourage, incite, or approve of the crime or even by being present with the intention of giving assistance if necessary, though such assistance may not be called into requisition; therefore, if you believe from the evidence in this case beyond a reasonable doubt that the defendant, Kenneth Wayne Beyersdoffer, on or about the time and date charged and testified about, in the First Judicial District of Harrison County, Mississippi, did unlawfully, willfully and feloniously take, assist in taking, or aid and abet in the burglary of an auto on said date and time; then if you so believe from the evidence in this case beyond a reasonable doubt, then the defendant is guilty and it is your sworn duty to say so by your verdict.

 When a guilty verdict was returned, the jury was polled. The eighth juror was asked if that indeed was his verdict and responded:

 BY MR. MARTIN. No, sir. Your Honor, what I found the Defendant, you know, what I found the Defendant guilty of was aiding and abetting.

 BY THE COURT. Well, do you find him guilty of aiding and abetting?

 BY MR. MARTIN. Yes.

 BY THE COURT. As being, well, that ...


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