Biles v. State, No. 49179

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtSUGG; GILLESPIE
Citation338 So.2d 1004
PartiesBilly Glen BILES v. STATE of Mississippi.
Decision Date02 November 1976
Docket NumberNo. 49179

Page 1004

338 So.2d 1004
Billy Glen BILES
v.
STATE of Mississippi.
No. 49179.
Supreme Court of Mississippi.
Nov. 2, 1976.

Bernard Gautier, Pascagoula, for appellant.

A. F. Summer, Atty. Gen., by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before INZER, SUGG and LEE, JJ.

SUGG, Justice, for the Court.

Billy Glen Biles was convicted of capital murder and sentenced to death by the Circuit Court of Jackson County.

The evidence on behalf of the State was sufficient to support a conviction for murder but was not sufficient to support a conviction for capital murder because the proof did not show beyond a reasonable doubt that the defendant murdered Henry Muller while engaged in the commission of the crime of kidnapping. Mississippi Code Annotated section 97-3-19(2)(e) (Supp.1975).

Page 1005

The indictment 1 for capital murder in this case is sufficient to charge defendant with murder as a lesser included offense.

In Jackson v. State, 337 So.2d 1242, rendered October 5, 1976, we held a jury may be instructed in a capital murder case that it may find a defendant guilty of a lesser included offense. Since a jury may be instructed in a capital murder case that it may find a defendant guilty of a lesser included offense when such instruction is justified by the evidence, the following rule which is well established in our jurisprudence is applicable. A jury verdict may be affirmed as to guilt, but the case remanded for resentencing when the proof is not sufficient to sustain a conviction for the crime charged, but is sufficient to sustain a conviction for a lesser included offense. Wells v. State, 305 So.2d 333 (Miss.1974) and cases cited therein.

We therefore reverse the conviction of capital murder and remand for resentencing for murder.

CAPITAL MURDER CONVICTION REVERSED AND REMANDED FOR RESENTENCING FOR MURDER.

GILLESPIE, C.J., PATTERSON and INZER, P. JJ., and SMITH, ROBERTSON, WALKER, BROOM and LEE, JJ., concur.

---------------

1 The charging part of the indictment is as follows:

(U)nlawfully, wilfully, feloniously, and of his malice aforethought did, then and there, kill and murder one Henry Muller a human being, while he, the said Billy Glen Biles, was then and there engaged in the commission of kidnapping the said Henry Muller by forcing the said Henry Muller to drive him, the said Billy Glen Biles, at gunpoint, and do his bidding, in violation of Section 97-3-19(2)(e) of the Mississippi Code of 1973, as amended . . .

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14 practice notes
  • Terryhye v. State, NO. 2010-CT-01780-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • March 5, 2010
    ...1105 (Miss. 1985); Gillum v. State, 468 So. 2d 856, 861 (Miss.1985); Cannaday v. State, 455 So. 2d 713, 725 (Miss.1984); Biles v. State, 338 So. 2d 1004 (Miss. 1976); Gray v. State, 220 Miss. 220, 70 So. 2d 524 (1954); Boggan v. State, 176 Miss. 655, 170 So. 282 (1936); Brown v. State, 103 ......
  • Kolberg v. State, No. 2000-KA-00786-SCT.
    • United States
    • Mississippi Supreme Court
    • August 29, 2002
    ...544 So.2d 802 (Miss.1989); Wheeler v. State, 536 So.2d 1341 (Miss.1988); Hester v. State, 463 So.2d 1087 (Miss.1985); Biles v. State, 338 So.2d 1004 (Miss.1976); and Bell v. State, 207 Miss. 518, 42 So.2d 728 (1949) to support his assertion that the State failed to meet its burden of proof.......
  • Hye v. State, No. 2010–CT–01780–SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • February 5, 2015
    ...1105 (Miss.1985) ; Gillum v. State, 468 So.2d 856, 861 (Miss.1985) ; Cannaday v. State, 455 So.2d 713, 725 (Miss.1984) ; Biles v. State, 338 So.2d 1004 (Miss.1976) ; Gray v. State, 220 Miss. 220, 70 So.2d 524 (1954) ; Boggan v. State, 176 Miss. 655, 170 So. 282 (1936) ; Brown v. State, 103 ......
  • State v. Shaw, No. 2001-KA-01854-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • August 12, 2004
    ...Gillum v. State, 468 So.2d 856, 861 (Miss.1985); Cannaday v. State, 455 So.2d 713, 725 (Miss.1984)). See also Biles v. State, 338 So.2d 1004 (Miss.1976); Gray v. State, 220 Miss. 220, 70 So.2d 524 (1954); Bogan v. State, 176 Miss. 655, 170 So. 282 (1936); Brown v. State, 103 Miss. 664, 60 S......
  • Request a trial to view additional results
14 cases
  • Terryhye v. State, NO. 2010-CT-01780-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • March 5, 2010
    ...1105 (Miss. 1985); Gillum v. State, 468 So. 2d 856, 861 (Miss.1985); Cannaday v. State, 455 So. 2d 713, 725 (Miss.1984); Biles v. State, 338 So. 2d 1004 (Miss. 1976); Gray v. State, 220 Miss. 220, 70 So. 2d 524 (1954); Boggan v. State, 176 Miss. 655, 170 So. 282 (1936); Brown v. State, 103 ......
  • Kolberg v. State, No. 2000-KA-00786-SCT.
    • United States
    • Mississippi Supreme Court
    • August 29, 2002
    ...544 So.2d 802 (Miss.1989); Wheeler v. State, 536 So.2d 1341 (Miss.1988); Hester v. State, 463 So.2d 1087 (Miss.1985); Biles v. State, 338 So.2d 1004 (Miss.1976); and Bell v. State, 207 Miss. 518, 42 So.2d 728 (1949) to support his assertion that the State failed to meet its burden of proof.......
  • Hye v. State, No. 2010–CT–01780–SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • February 5, 2015
    ...1105 (Miss.1985) ; Gillum v. State, 468 So.2d 856, 861 (Miss.1985) ; Cannaday v. State, 455 So.2d 713, 725 (Miss.1984) ; Biles v. State, 338 So.2d 1004 (Miss.1976) ; Gray v. State, 220 Miss. 220, 70 So.2d 524 (1954) ; Boggan v. State, 176 Miss. 655, 170 So. 282 (1936) ; Brown v. State, 103 ......
  • State v. Shaw, No. 2001-KA-01854-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • August 12, 2004
    ...Gillum v. State, 468 So.2d 856, 861 (Miss.1985); Cannaday v. State, 455 So.2d 713, 725 (Miss.1984)). See also Biles v. State, 338 So.2d 1004 (Miss.1976); Gray v. State, 220 Miss. 220, 70 So.2d 524 (1954); Bogan v. State, 176 Miss. 655, 170 So. 282 (1936); Brown v. State, 103 Miss. 664, 60 S......
  • Request a trial to view additional results

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