White v. State
| Docket Number: | 2002-KA-00419-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 07-29-2003 Opinion Author: McMillin, C.J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Attempted accessory after the fact - Sufficiency of indictment - Section 97-1-7 - Overt act Judge(s) Concurring: Southwick, P.J., Thomas, Lee, Irving, Myers and Griffis, JJ. Dissenting Author : King, P.J. Dissent Joined By : Bridges and Chandler, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 09-27-2000 Appealed from: Franklin County Circuit Court Judge: Forrest Johnson Disposition: GUILTY OF ATTEMPTED ACCESSORY AFTER THE FACT: SENTENCED TO SERVED A TERM OF FIVE YEARS IN THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THE DEFENDANT PLACED ON PROBATION FOR A PERIOD OF FIVE YEARS. IT IS FURHER ORDERED THAT THE DEFENDANT PAY A FINE OF $1,000 AND ALL COURT COSTS, AS A SPECIAL CONDITION OF THE PROBATION. District Attorney: Ronnie Lee Harper Case Number: 00-KR-0006 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Herbert Joe White |
WALTER KEVIN COLBERT |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE |
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| Topic: | Attempted accessory after the fact - Sufficiency of indictment - Section 97-1-7 - Overt act |
| Summary of the Facts: | Herbert White was convicted as an attempted accessory after the fact. White moved to set the conviction aside on the ground that the indictment returned against him was void because it failed to charge an essential element of the crime. The court conceded that the indictment was defective on its face, but held that White had waived any objection to the form of the indictment by proceeding to trial. White appeals. |
| Summary of Opinion Analysis: | Pursuant to section 97-1-7, some overt act aimed at the accomplishment of the intended crime is an essential element of a charge of attempt. In order to indict for an attempt, the indictment must set out with certainty the specific conduct that the State asserts to be the “overt act” undertaken by the defendant. There is no acceptable substitute or cure in the law for an indictment that omits the essential charging information. Because the indictment in this case failed to set out with any certainty White’s “overt act”, it is void. The nature of this defect cannot be the subject of waiver by failure to raise the issue prior to trial. There is no authority for the proposition that the court may, when the issue is raised belatedly, inquire into the circumstances of why it was not raised at an earlier stage and base its ruling on the actual knowledge or motivation of the defendant or his attorney. |
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