Stewart v. State
| Docket Number: | 2004-KA-01242-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 08-18-2005 Opinion Author: Easley, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Burglary of dwelling - Lesser-included offense instruction - Sufficiency of evidence Judge(s) Concurring: Smith, C.J., Waller and Cobb, P.JJ., Carlson, Graves and Dickinson, JJ. Non Participating Judge(s): Diaz and Randolph, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 06-08-2004 Appealed from: Bolivar County Circuit Court Judge: Kenneth L. Thomas Disposition: Conviction of Burglary of a Dwelling and Sentence of Eight (8) Years, with conditions, in the custody of the Mississippi Department of Corrections, together with payment of a fine of $4,000.00 to be paid within two (2) years of release from incarceration, and all costs. After appellant has served six (6) years, the remaining two (2) years shall be suspended. Appellant shall receive credit for all time previously served in this cause. The sentence imposed in this cause shall run consecutively to any and all sentences previously imposed. District Attorney: LAWRENCE Y. MELLEN Case Number: 2003-16-CR2 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Benjamin Stewart |
DAVID LYDELL TISDELL |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: BILLY L. GORE |
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| Topic: | Burglary of dwelling - Lesser-included offense instruction - Sufficiency of evidence |
| Summary of the Facts: | Benjamin Stewart was convicted of burglary of a dwelling and sentenced to eight years with two years suspended. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Lesser-included offense instruction Stewart argues that the court erred in refusing jury instruction which set out the lesser-included offense of trespass. Trespass requires that a person commit a willful or malicious trespass upon the real or personal property of another. Lesser-included offense instructions should be given if there is an evidentiary basis in the record that would permit a jury rationally to find the defendant guilty of the lesser offense and to acquit him of the greater offense. Here, the State clearly presented evidence that Stewart aided and abetted the burglary. Therefore, there was no evidentiary basis for the lesser-included offense instruction. Issue 2: Sufficiency of evidence Stewart argues that the evidence was insufficient. Stewart was outside on the corner when his co-defendants broke out a window to enter the house. One of the co-defendants testified that he whistled Stewart inside. Stewart waited inside while the other two ransacked the house searching for valuables. The victim testified that five guns and jewelry were stolen. The items were pawned, and Stewart shared in the proceeds. The evidence demonstrates that the elements of burglary were met. |
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