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02/24/98 MICHAEL JOHNSTON A/K/A MICHAEL LYNN v.

MICHAEL JOHNSTON A/K/A MICHAEL LYNN, APPELLANT JOHNSTON
v.
STATE OF MISSISSIPPI, APPELLEE



DATE OF JUDGMENT: 11/03/95 TRIAL JUDGE: HON. FORREST A. JOHNSON JR. COURT FROM WHICH APPEALED: AMITE COUNTY CIRCUIT COURT

Before: Bridges, C.j., Coleman, And Diaz, JJ.

The opinion of the court was delivered by: Diaz, J., For The Court:

DISTRICT ATTORNEY: ALONZO STURGEON

NATURE OF THE CASE: CRIMINAL - FELONY

TRIAL COURT DISPOSITION: BURGLARY & LARCENY OF A DWELLING HOUSE ACCESSORY AFTER THE FACT: SENTENCED TO SERVE A TERM OF 5 YRS IN THE MDOC & ORDERED TO PAY ALL COURT COSTS

DISPOSITION REVERSED AND REMANDED - 02/24/98

MOTION FOR REHEARING FILED:

CERTIORARI FILED:

MANDATE ISSUED:

Michael Johnston was convicted of accessory after the fact of burglary and larceny of a dwelling house. On appeal, Johnston argues that the trial court erred in granting the State's jury instructions for the crime of accessory after the fact when Johnston was indicted for the separate and distinct crime of burglary and larceny of a dwelling house. Finding that the trial court committed reversible error in causing Johnston to be convicted of a crime for which he was never indicted, we reverse and remand for a new trial in accordance with this opinion.

FACTS

Michael Johnston was charged and subsequently indicted for the January 31, 1995 burglary and larceny of a dwelling house. At trial, Johnston denied any involvement in the crime. The State then submitted jury instructions S-5 and S-6 to the court, which permitted the jury to consider convicting Johnston of accessory after the fact of burglary and larceny. The court granted the instructions, notwithstanding the objection of Johnston's counsel. The trial Judge ruled that in this case, accessory after the fact was a lesser included offense to the crimes of burglary and larceny and that because Johnston would suffer no prejudice, the instruction would be granted. As a result, the jury convicted Johnston of accessory after the fact. It is from this verdict that Johnston appeals.

Discussion

Our Mississippi Constitution confers a right of indictment upon any person criminally accused. Miss. Const. art. 3, ยง 27. That section provides, in part: "No person shall, for any indictable offense, be proceeded against criminally by information, except . . . where a defendant represented by counsel by sworn statement waives indictment; . . . ." Id. The supreme court has repeatedly held that an indictment must give the accused notice of the charges pending against him. State v. Berryhill, No. 95-KA-00289-SCT, 1997 WL 660471, at *6 (Miss. Oct. 23, 1997) (citations omitted). This notice requirement protects the accused from "trial by ambush" while providing him with a reasonable opportunity to ...


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