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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 95-KA-01220 COA MICHAEL JOHNSTON A/K/A MICHAEL LYNN JOHNSTON v. STATE OF MISSISSIPPI APPELLANT

APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B DATE OF JUDGMENT: TRIAL JUDGE: COURT FROM WHICH APPEALED: ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE: DISTRICT ATTORNEY: NATURE OF THE CASE: TRIAL COURT DISPOSITION: 11/03/95 HON. FORREST A. JOHNSON JR. AMITE COUNTY CIRCUIT COURT WILLIAM F. VICK BRENT M. BRUMLEY OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS ALONZO STURGEON CRIMINAL - FELONY BURGLARY & LARCENY OF A DWELLING HOUSE ACCESSORY AFTER THE FACT: SENTENCED TO SERVE A TERM OF 5 YRS IN THE MDOC & ORDERED TO PAY ALL COURT COSTS REVERSED AND REMANDED - 02/24/98

DISPOSITION: MOTION FOR REHEARING FILED: CERTIORARI FILED: MANDATE ISSUED:

4/7/98

BEFORE BRIDGES, C.J., COLEMAN, AND DIAZ, JJ. DIAZ, J., FOR THE COURT: Michael Johnston was convicted of accessory after the fact of burglary and larceny of a dwelling house. On appeal, Johnston argues that the trial court erred in granting the State's jury instructions

for the crime of accessory after the fact when Johnston was indicted for the separate and distinct crime of burglary and larceny of a dwelling house. Finding that the trial court committed reversible error in causing Johnston to be convicted of a crime for which he was never indicted, we reverse and remand for a new trial in accordance with this opinion. FACTS Michael Johnston was charged and subsequently indicted for the January 31, 1995 burglary and larceny of a dwelling house. At trial, Johnston denied any involvement in the crime. The State then submitted jury instructions S-5 and S-6 to the court, which permitted the jury to consider convicting Johnston of accessory after the fact of burglary and larceny. The court granted the instructions, notwithstanding the objection of Johnston's counsel. The trial judge ruled that in this case, accessory after the fact was a lesser included offense to the crimes of burglary and larceny and that because Johnston would suffer no prejudice, the instruction would be granted. As a result, the jury convicted Johnston of accessory after the fact. It is from this verdict that Johnston appeals. DISCUSSION Our Mississippi Constitution confers a right of indictment upon any person criminally accused. Miss. Const. art. 3,

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