¶1Guy & Dowdy, C. Wayne Dowdy, Ronald L. Whittington, McComb, for appellant.
¶2A.F. Summer, Atty. Gen. by Scherry J. LeSieur, Sp. Asst. Atty. Gen., Jackson, for appellee.
¶3Before PATTERSON, SMITH and LEE, JJ.
¶4SMITH, Presiding Justice, for the Court:
¶5Hendrick Spencer was convicted of the capital murder of a police officer under the provisions of Mississippi Code Annotated section 97-3-19(2)(a) (Supp. 1976) and was sentenced to death. His conviction and sentence must be reversed and the cause retried in accordance with Jackson v. State,337 So.2d 1242 (Miss. 1976).
¶6Appellant has also assigned as error the trial court's refusal to grant an instruction that defined the lesser included offense of manslaughter and permitted the jury to find the defendant guilty of that offense if supported by the evidence. The question is answered by Jackson v. State, supra.
[W]hen warranted by the evidence, the trial court may instruct the jury with reference to lesser included offenses. However, such an instruction should not be indiscriminately or automatically given, as was condemned in Roberts v. Louisiana, supra, 428 U.S. [325] at 334, 96 S.Ct. [3001] at 3007, 49 L.Ed.2d [974] at 982, but should only be given after the trial court has carefully considered the evidence and is of the opinion that such an instruction is justified by the evidence. (337 So.2d at 1255).
¶7The trial judge was without benefit of the Jackson holding during the trial of the case, but should follow its ruling and instruct the jury as to lesser included offenses if the evidence adduced upon retrial should justify the giving of such an instruction.
¶8Other matters assigned as error are without merit or are of such a nature as are not likely to recur upon the retrial of the case.
¶9The case will be reversed and remanded for a new trial and further proceedings consistent with the opinion in Jackson v. State, supra.
¶10REVERSED AND REMANDED.
¶11PATTERSON, C.J., INZER, P.J., and ROBERTSON, SUGG, WALKER, BROOM, LEE and BOWLING, JJ., concur.