Wann v. State

327 So. 2d 264, 1976 Miss. LEXIS 1769

Opinions

RODGERS, Presiding Justice, for the court:

Larry Alan Wann was indicted, tried and convicted in the Circuit Court of Rankin County, Mississippi, on a charge of possession of marijuana with intent to sell.

The facts in this case are set out in the companion case of Joyce v. State, 327 So.2d 255, this day decided by this Court. We have reached the same conclusion in the instant case as was decided in the Joyce case, that is to say, the judgment of the trial court is affirmed as to the conviction of the lesser included offense of possession of more than one (1) ounce of marijuana, and the case is remanded to the trial court for resentencing of the defendant for the lesser crime.

The only other argument m the case now before the Court which requires additional comment is an instruction as to the law on “aiding and abetting” obtained by the prosecuting attorney. Even if we were to concede this instruction to be erroneous, it is harmless, because the defendant knowingly carried the contraband in his automobile and is thus guilty of possession, rather than simply aiding another in the commission of a crime. The instruction as written actually imposed an unnecessary burden on the prosecution.

The judgment of conviction of possession of more than one (1) ounce of marijuana is affirmed, arid the case is remanded to the trial court for resentencing for the lesser included offense. This case was considered by a conference of the justices en banc.

Affirmed as to lesser included offense and remanded for resentencing.

GILLESPIE, C. J., and SMITH, ROBERTSON, SUGG, WALKER and BROOM, JJ., concur. PATTERSON and INZER, JJ., dissent.