The opinion of the court was delivered by: Sullivan, Presiding Justice
DATE OF JUDGMENT: OCTOBER 4, 1996
TRIAL JUDGE: HON. HONORABLE R. I. PRICHARD, III
COURT FROM WHICH APPEALED: LAMAR COUNTY CIRCUIT COURT
DISTRICT ATTORNEY: RICHARD DOUGLASS
NATURE OF THE CASE: CRIMINAL - FELONY
MOTION FOR REHEARING FILED:
¶1. On October 4, 1996, McRee was convicted for the burglary of a dwelling in the Circuit Court of Lamar County and sentenced to ten years, with three years suspended, to be served in the custody of the Mississippi Department of Corrections. The trial court denied a motion for directed verdict and a subsequent motion for JNOV. The conviction was affirmed by the Court of Appeals.
¶2. In his Petition for Writ of Certiorari, McRee asserted that this case, which was based entirely on circumstantial evidence, was erroneously decided by the Court of Appeals and that the Court of Appeal's decision is in conflict with prior published decisions of this Court. See Corbin v. State, 585 So. 2d 713 (Miss. 1991), Rawls v. State, 513 So. 2d 942 (Miss. 1987), Shepherd v. State, 403 So. 2d 1287 (Miss. 1981); Wooldridge v. State, 274 So. 2d 131 (Miss. 1973), and James v. State, 77 Miss. 370, 372, 26 So. 929 (Miss. 1900), where the Court found that the evidence was insufficient to support the conviction or the conviction was against the overwhelming weight of the evidence. This Court granted certiorari review and holds that the evidence in this case is insufficient to support the conviction and the conviction should be reversed and rendered.
¶3. On July 16, 1995, Terry and Cathy Shows departed from their residence at approximately 10:30 a.m. to attend church services near Purvis, Mississippi. As the Shows approached an intersection, they noticed a light colored Mercury Cougar, with two white males, traveling slowly down the highway. The Shows pulled onto the highway and proceeded in the same direction as the other vehicle. While still behind the Cougar, the Shows saw it turn on a small driveway. After the Shows passed, they saw the Cougar re-enter the highway and go back in the direction that it had just come.
¶4. Between 10:00 and 11:00 a.m. that same morning, David Lee and his wife Amy went towards Amy's parents' house that was across but slightly down the street from the Shows' house. While within view of the Shows' residence, David Lee noticed a light colored Mercury Cougar driving through the Shows' driveway. After the vehicle drove through the driveway the second time, David Lee and his wife went to the Shows' residence and made a brief inspection of the residence and grounds. Noticing nothing unusual, they returned up the hill to their house. Later, David Lee saw the same vehicle return, enter the Shows' driveway and pull around the grass behind the residence. Lee then heard a tap of the car's horn and decided to walk back to the Shows' residence.
¶5. As David Lee approached the vehicle, he saw the driver leaning out of the vehicle as if to step out. The driver then noticed David Lee. When questioned about his presence at the residence, the driver responded that he was looking for a girl named Shanna. David Lee informed the driver that he was at the Shows' residence and the driver stated that he had ...