IN THE COURT OF APPEALS

OF THE

STATE OF MISSISSIPPI

NO. 96-KA-01113-COA

GREGORY MORRIS APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 09/06/96

TRIAL JUDGE: HON. JOHN M. MONTGOMERY

COURT FROM WHICH APPEALED: LOWNDES COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: RICHARD BURDINE

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: WAYNE SNUGGS

DISTRICT ATTORNEY: FORREST ALLGOOD

NATURE OF THE CASE: CRIMINAL - FELONY

TRIAL COURT DISPOSITION: COUNTS 1 & 2 ATTEMPTED MURDER: CT I

SENTENCED TO SERVE A TERM OF 6 YRS IN THE

MDOC; CT II SENTENCED TO SERVE A TERM OF 6

YRS IN THE MDOC SAID SENTENCE IN CT I & CT II

TO RUN CONSECUTIVELY

DISPOSITION: AFFIRMED - 05/18/1999

MOTION FOR REHEARING FILED:

CERTIORARI FILED:

MANDATE ISSUED: 6/8/99

EN BANC.

THOMAS, J., FOR THE COURT:

¶1. Pursuant to a two-count indictment for the attempted murders of Ivory Morris and Janice Morris, who

are the father and mother of the appellant, Gregory Morris, a jury returned a verdict of "Guilty as charged"

on both counts in the Circuit Court of Lowndes County. That Court entered its order which adjudicated

Morris's conviction of both counts of attempted murder and sentenced him "to serve a term of six (6) years

in Count one (1) and six (6) years in Count two (2) in the Mississippi Department of Corrections, said

sentences . . . to run consecutively." Morris filed a motion for new trial or in the alternative JNOV, which

the trial court denied. Morris appeals to present but one issue, which we quote from his brief:

WHETHER THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE

EVIDENCE?

¶2. Finding no error, we affirm.
FACTS

¶3. The appellant, Gregory Morris, was born in Flint, Michigan on July 24, 1969, to the marriage of Ivory

Morris and Mrs. Janice Morris. His father, Ivory Morris, was an employee of the Chevrolet Division of

General Motors Corporation in Flint. The relationship between Morris and his parents deteriorated as

Morris struggled toward maturity. For example, Morris once threw a concrete block through a window in

his parents' home in Flint one night. On another occasion, Morris burned a Corvette automobile which his

father Ivory Morris had purchased, brought home, and left on a trailer parked in the back of his house in

Flint.

¶4. In August 1993, Ivory Morris retired from his employment with the Chevrolet Division of General

Motors, and he and his wife, Janice Morris, moved to Columbus, Mississippi, where they established their

residence to enjoy Mr. Morris's retirement. The Morrises did not tell their son Gregory where they had

moved. Nevertheless, two years later, the Morrises received a letter from their son in an envelope

postmarked August 9, 1995, addressed to their correct street address in Columbus. In it, Gregory Morris

wrote, inter alia:

Dear Ivory & Jan

I start a new job this week paying $1.64 more than the one I quit[.] . . . I still put in 60 hours a week

and go to the gym. You see[,] my hate has grown so much stronger[,] it has made me more stronger

[sic]. I remember Ivory looking me in my face saying[, "Stay sick. I don't owe you . . . . I' ve got to

see your faces one last time as nasty as you were to me. I'm coming to thank you for my life. I'm

coming to show you how when someone just wants to hurt you and mess you up for life[,] how it feels

. . . . [O]ne thing you can bet your last breath on[,] and that is the most sincere thing you ever heard in

your life. . . . I will see you again and make you wish you weren't so nasty to me[.] I'm gonna [sic]

make my life count for something by destroying you like [sic] you done [sic] me.

I'm gonna [sic] look you in your face and say[, "]No mercy." My hate has made me so strong. Strong

enough to get up and work full time, over time, not smoke or drink beers. Because I will see my nasty

parents again. Smiling while they watching [sic] me die. I'm gonna [sic] smile this time!! Nothing to live

for but to see you again[.] I will!

¶5. Almost two months later during the evening of December 2, 1995, Karen Morris, sister of Gregory

Morris, who lived in Flint, Michigan, called her parents, Ivory and Jan Morris, to tell them that she had

reason to believe that her brother Gregory had come to Columbus to harm them. Two days later, on

Monday, December 4, 1995, Ivory Morris found a note in his mailbox. It read, "SEE YA SOON NASTY

BITCHES." Because of their concern for their safety, the Morrises drove to the Lowndes County Sheriff's

Department, where they talked to Deputy Sheriff Joe Young, who served in the criminal investigation

division of that department. The Morrises told Deputy Young that they feared that their son Gregory would

try to kill them, and Deputy Young asked the Morrises to provide him a description and a "tag number" if

the Morrises could. Ivory and Jan Morris had not seen their son Gregory when they talked to Deputy

Young.
¶6. The Morrises returned to their home, where they next prepared to go to the bank. As they were leaving

their home, the Morrises observed Gregory as he drove by in the beige Escort automobile which they had

helped him buy before Mr. Morris had retired in August 1993. As they drove away from their home, the

Morrises were behind their son's automobile. When Gregory Morris stopped at a convenience store, his

parents also stopped there to talk with their son. Morris told his father and mother that he had come "down

here to finish the job that he started in Michigan." Gregory added that he was going to kill them. Jan Morris

recorded the license plate number of her son's Escort while they were at the convenience store.

¶7. The Morrises left the convenience store and were traveling to the sheriff's department to give the

deputies the license plate number when Ivory Morris saw Frank Boyd inside another convenience store.

Mr. Morris had known Frank Boyd when both of them had worked for General Motors in Flint. After

Ivory Morris stopped his car at this second convenience store, Gregory Morris, who had been driving his

car ahead of his parents' car, turned his car around and returned to the second convenience store. There,

Gregory Morris stopped his car beside his parents' car, and from inside his car, Gregory told the Morrises

that he had purchased a weapon and that if they, his parents, would follow him to the pawn shop, he would

get the weapon and "would finish the job right there." Ivory Morris told his son "to just go ahead on"

because they were going to the sheriff's department to give the license plate number to the deputies there.

Perhaps because Frank Boyd had only one leg, he had not come outside the second convenience store in

time to hear the exchange between Morris and his parents.

¶8. After Ivory and Jan Morris went to the sheriff's department, they then went to their original destination,

the bank, where again they encountered their son. When his father told Gregory Morris that they had given

the sheriff's department the license plate number of Gregory's Escort, Morris replied that "he didn't care

because they had already stopped him, and wasn't nothing that they could do to him." After the Morrises

left the bank to return to their home, they saw Gregory Morris drive to a pizza place, where he stopped his

Escort. After Gregory stopped, Ivory Morris saw him turn around in the driver's seat and "reach[] over into

the back seat of his car." This time, Ivory Morris did not stop because, as he testified that he told his wife,

"[h]e must have his weapon then because . . . he [was] reaching over in the back seat for something."

Instead, the Morrises continued to their home, where they remained the rest of that day and night.

¶9. The next morning, Tuesday, December 5, shortly after Deputy Sheriff Young reported for work, he

received a telephone call from Officer Terry Clemmons with the Genesee Township Police Department in

Genesee, Michigan. Officer Clemmons advised Deputy Young that he "should take this case real serious

[sic]." Deputy Young then called Ivory Morris, who related to him the events involving his son the previous

day, December 4. Next, Deputy Young began "calling pawn shops in town to see if possibly Gregory had

purchased a gun at any of the pawn shops." He learned that Gregory Morris "had purchased a Mac 90

assault rifle at the City Pawn and Gun Shop on the fourth of December." Armed with this alarming

information, Deputy Young again called Ivory Morris and arranged for a deputy sheriff to go to the

Morrises' home and then "escort them to the justice court building so that [the Morrises] could sign an

affidavit against Mr. Morris."

¶10. Deputy Young met the Morrises at the justice court building, where one or the other of the Morrises

executed an affidavit which charged Gregory Morris with the crime of stalking. The justice court judge then

issued two warrants for the arrest of Gregory Morris on the charges of stalking his parents. Deputy Young

"contacted 911 [and] had them to put out a be-on-the-lookout for Gregory Morris and the vehicle that he

was driving." A deputy returned the Morrises to their home and "gave [them] five minutes to get [their]
belongings together and to go to Aberdeen to stay in a hotel." Later that same day, December 5, Ivory

Morris called his friend, Frank Boyd, who told him that "it was okay to come home."

¶11. Earlier that day, shortly after twelve o'clock noon, Columbus police officers located Gregory Morris's

car parked in the parking lot at a motel in Columbus. Because the officers knew that Morris had bought an

assault rifle, the Columbus Police Department SWAT Team entered and secured Morris's motel room after

another Lowndes County deputy sheriff, Tony Mulligan, had verified with the motel's desk clerk that Morris

occupied the room. Deputy Mulligan called Morris's room, and when Morris answered the telephone,

Mulligan signaled the members of the SWAT team, who then entered the room, secured it, and arrested

Morris. The officers found the Mac assault rifle, which was unloaded, in a closet in the bathroom. They also

found three clips loaded with ammunition and the box in which the ammunition had been purchased in the

motel room.

¶12. As Deputy Sheriff Young was driving Morris to the Lowndes County Sheriff's Department, Morris

told him "that his parents had done a lot of nasty things to him in his life [that Young] would never be able to

understand." Morris denied to Deputy Young that he planned to kill his parents and explained that he had

bought the gun "[f]or protection." David James, an employee of the City Pawn and Gun Shop, had sold the

Norinco Mac 90 assault rifle, which came with the additional clips, to Morris on Monday, December 4.

However, James did not recall whether he had sold Morris any ammunition for the assault rifle.

TRIAL

¶13. In both counts of the indictment which it returned against Morris, the grand jury charged that "in

furtherance [of the attempt to kill and murder, Morris] did the following overt acts: 1) by sending [his

parent] a threatening letter; 2) by telling the said [parent] that he was going to get a gun and kill [the parent];

and 3) by obtaining a firearm; but was intercepted and failed therein . . . ." We forego a review of the

testimony and evidence of Morris's guilt because our recitation of the facts reflects the evidence in the light

most favorable to the jury's verdict of Gregory Morris's guilt of the attempted murders of his father, Ivory

Morris, and of his mother, Janice Morris.

¶14. After the State rested, Morris moved "to direct a verdict of acquittal on [his] behalf" because "[t]he

facts would not substantiate the law and that this is a question that should not go to the jury." After he heard

further argument by both the State and Morris's counsel, the judge denied the motion for directed verdict.

We quote from the record the judge's explanation for his denial of the motion:

This court is required to consider the evidence in light most favorable to the State, giving the State the

benefit of all favorable inferences that may be reasonably drawn from the evidence and unless the

evidence is so lacking that no reasonable jury could find the plaintiff or the defendant guilty, the

motion must be denied. . . . The defendant is charged with the attempt to commit the crime of murder.

A direct overt act done towards its commission and the failure to consummate the commission . . .

constitute the crime of attempt. The court finds that the undisputed testimony . . . is that there was a

[threatening] letter sent. The victims testified that they had been threatened, that the defendant would

get a gun and kill them. This was corroborated by other family members. Defendant actually obtained

a firearm and the defendant came from the State of Michigan to Columbus, Mississippi,

the . . . residence of the . . . alleged victims. But due to the police work, the . . . defendant was

arrested and failed in the commission of this crime as alleged by the State. The court is of the opinion

the State has made a prima facie case and that this matter should be submitted to the jury upon
proper instructions for their determination.

¶15. This Court finds noteworthy the following instructions of law which Morris requested and the judge

granted:

INSTRUCTION NO. D 2

To constitute an attempt, there must be an act directed to the commission of an intended crime which

goes beyond mere preparation and is apparently suited for its intended purpose.

If you find that the State has failed to prove beyond a reasonable doubt that Greg Morris committed

an overt act beyond mere preparation, then you shall find him not guilty of attempted murder on both

counts.

INSTRUCTION NO. D 3A

An attempt is a direct movement toward the commission of a crime after the preparations have been

made; that the Defendant's act must be a direct, unequivocal act towards the commission of the

intended crime; that his acts must have progressed to the extent of giving him power to commit the

offense and nothing more but an interruption prevented the commission of the offense; that the

defendant's act must reach far enough toward the accomplishment of his intention to commit the

offense to amount to the commencement of the consummation or to be a step in the direct movement

toward its commission; and that some appreciable fragment of the crime must be committed so that

the crime would be completed if the defendant were not interrupted.

If you find that the State has failed to prove beyond a reasonable doubt that Defendant's actions were

a direct movement towards the commission of a crime, then you shall find Greg Morris not guilty of

attempted murder on both counts.

¶16. The State did not object to the judge's granting either of these instructions which Morris requested;

neither does the State on appeal question their correctness insofar as they express the law of what

constitutes the commission of an attempt to commit a felony, murder included. This Court finds Instructions

Nos. D-1 and D-2 to be correct statements of the law on what constitutes an overt attempt to commit a

crime as Section 97-1-7 of the Mississippi Code defines the "general attempt" to commit a crime.(1) We

have stated the result of the trial.

ANALYSIS

¶17. Although the appellant's one issue appears to attack only the weight of the evidence, our review of his

one issue necessarily includes our evaluation of the sufficiency of the evidence. See Walters v. State, 720

So. 2d 856, 866 (Miss. 1998) (opining that the appellant's assignment of error that the jury's verdict was

against the overwhelming weight of the evidence "challenge[d] the weight and sufficiency of the evidence."

Of course, the issues of the sufficiency and of the weight of the evidence are different, and thus the

standards of review for resolving these separate issues are different. Because Morris presented both issues

in his "Motion for New Trial or Judgment of Acquittal" and because his brief suggests both issues, we will

address both issues.

A. Sufficiency of the evidence
1. Standard of Review

¶18. In resolving the issue of whether the evidence is sufficient to support the jury's verdict that the appellant

is guilty of the crime for which he has been indicted, this Court can reverse only "where, with respect to one

or more of the elements of the offense charged, the evidence so considered is such that reasonable and fairminded jurors could only find the accused not guilty." Wetz v. State, 503 So. 2d 803, 808 (Miss. 1987).

Furthermore, we must accept all credible evidence presented at trial as true and consider all such evidence

in the light most favorable to the verdict. Id. "When the sufficiency of the evidence is challenged on appeal,

this Court properly should review the [trial court's] ruling on the last occasion when the sufficiency of the

evidence was challenged before the trial court." Id. at 808 n.3; see also Ballenger v. State, 667 So. 2d

1242, 1252 (Miss. 1995); Smith v. State, 646 So. 2d 538, 543 (Miss. 1994). Gregory Morris challenged

the sufficiency of the evidence when he moved for a directed verdict after the State rested, and he renewed

the motion when the defense rested. His last challenge as to the sufficiency of the evidence exists in his

"Motion for New Trial or Judgment of Acquittal," wherein he stated, "The verdict is against the great weight

and sufficiency of the evidence."

2. The first and third elements of Morris's attempt to murder his parents

¶19. The three elements of an attempted crime include "(1) an intent to commit a particular crime; (2) a

direct ineffectual act done toward its commission; and (3) the failure to consummate its commission."

Edwards v. State, 500 So. 2d 967, 969 (Miss. 1986). See also Bucklew v. State, 206 So. 2d 200, 202

(Miss. 1968); Pruitt v. State, 528 So. 2d 828, 830 (Miss. 1988); McGowan v. State, 541 So. 2d 1027,

1030 (Miss. 1989); Ross v. State, 601 So. 2d 872, 874 (Miss. 1992); Henderson v. State, 660 So. 2d

220, 222 (Miss. 1995).

¶20. The first and third elements of the crimes of the attempted murders of his father and mother for which

Morris was indicted pose no difficulty with regard to the sufficiency of the evidence. This Court first

considers the third element of Morris's attempt to murder his parents, i. e., the failure to consummate the

commission of the murder of Ivory and Jan Morris. The third element is satisfied by the apprehension and

arrest of Gregory Morris and the initial hiding and thereafter appearance of both Ivory and Jan Morris at the

beginning of the trial to testify on behalf of the State. With regard to the first element, that of intent, we note

that intent is "rarely susceptible of direct proof," but it may be inferred from the facts, circumstances, and

conduct of the party. Thames v. State, 221 Miss. 573, 577, 73 So. 2d 134, 136 (1954); see also

McClain v. State, 625 So. 2d 774, 781 (Miss. 1993). Frequently, examining what is evinced by the

defendant's conduct is the only means of determining a defendant's state of mind. Minter v. State, 583 So.

2d 973, 974 (Miss. 1991). However, in the present case, the State's witnesses, Ivory Morris, Jan Morris,

and Karen Morris, their daughter, testified that Gregory Morris threatened to kill his parents several times.

The Morrises' testimony relating their several encounters with their son on Monday, December 4, 1995,

established that their son Gregory Morris threatened to kill them. For example, both Ivory Morris and Jan

Morris testified that when they stopped at the second convenience store to tell Frank Boyd about their

son's coming to Columbus, Gregory drove up to their car, stopped, and told them, to quote Jan Morris's

testimony, "that he was going to the pawn shop and get a gun to finish the job that he hadn't . . . finished."

The State's evidence to support the first element of Morris's attempt to murder his parents, i. e., Morris's

intent to commit the murder of his parents, is also sufficient to support the jury's verdict.

3. The second element of Morris's attempt to murder his parents
¶21. We begin our scrutiny of the State's evidence that Gregory Morris committed "a direct ineffective

act . . . toward [the] commission [of murdering his parents]" -- the second element of the crime of

attempted murder -- by reviewing the State's argument that its evidence was sufficient to establish that

Morris had committed such "a direct ineffective act."

¶22. The "overt acts" with which the grand jury in its indictment charged Morris were: (1) sending each

parent "a threatening letter," (2) "telling [each parent] that he was going to get a gun and kill [each one of

them], and (3) "by obtaining a firearm."

¶23. In its brief, the State elaborates upon Morris's overt acts as follows:

He [Morris] tracked his targets, traveled the substantial distance necessary to furnish himself direct

access to [his parents], and procured the very weapon and abundant ammunition with which to

accomplish his deadly mission. When his parents confronted [Morris] as to his purpose for being in

Mississippi, the essence of his response spoke volumes as to his mission. 'I came to Mississippi to

finish what I started in Michigan. I have purchased a weapon. Come go with me to get it, and I will

kill you right there." This evidence clearly was legally sufficient for a rational fact finder to conclude

beyond a reasonable doubt that defendant had done 'an overt act toward commission,' i. e., that his

acts had gone beyond mere operation or planning to the point where he had the power and means to

accomplish his declared mission, but for the professional and timely intervention and prevention by the

law enforcement authorities in Lowndes County.

¶24. Our supreme court as early as 1874 recognized the complexity of the legal question involved in the

charge of attempting to commit a crime in Cunningham v. State, 49 Miss 685:

This doctrine of attempt to commit a substantive crime is one of the most important, and at the same

time most intricate, titles of the criminal law. It is truly remarked by Mr. Bishop, in his valuable work

on criminal law, that there is no title, indeed, less understood by the courts, or more obscure in the

text books, than that of attempts. There must be an attempt to commit a crime, and an act toward its

consummation. So long as an act rests in bare intention, it is not punishable; but, immediately when an

act is done, the law judges not only of the act done, but of the intent with which it was done; and if

accompanied with an unlawful and malicious intent, though the act itself would otherwise have been

innocent, the intent being criminal, the act becomes criminal and punishable. (49 Miss. at 701).

¶25. In one of the leading cases in the United States on attempt to commit a crime, a case from this State

styled Stokes v. State, 92 Miss. 415, 46 So. 627 (1908), our supreme court stated:

It is useless to undertake to reconcile the authorities on the subject of what constitutes an attempt, or

what is an overt act, within the meaning of the section in question. It is equally impossible for us to

undertake to lay down any rule on this subject which would serve as a guide in all future cases. To a

very great extent each and every case must stand on its own facts. The text-books and decisions are

noted for their lack of harmony. It is impossible to decide any case on this subject without doing

violence to some author or some adjudicated case. Therefore all we can hope to do is to follow the

best authorities and to clear up the subject as best we can, so far as the laws of this state are

concerned. (92 Miss. at 424, 425, 46 So. at 628).

Stokes thereafter concluded:
When the intent to commit crime exists, or, to put it more accurately, when the only proof is that it is

merely the declared intention of a person to commit a crime, with no act done in furtherance of the

intent, however clearly may be proved this intention, it does not amount to an attempt, and it cannot

be punished as such. But, whenever the design of a person to commit crime is clearly shown, slight

acts done in furtherance of this design will constitute an attempt, and this court will not destroy the

practical and commonsense administration of the law with subtleties as to what constitutes preparation

and what an act done toward the commission of a crime. Too many subtle distinctions have been

drawn along these lines for practical purposes. Too many loopholes have been made whereby parties

are enabled to escape punishment for that which is known to be criminal in its worst sense. (92 Miss.

at 427, 428, 46 So. at 629).

¶26. Morris strenuously argues that his actions amount to no more than the mere declared intention of a

person to commit a crime, and that his conduct equals nothing more than preliminary preparation. We do

not agree.

¶27. If we were to hold that further acts were needed in this case in order to constitute an attempt, e.g.,

loading the gun, placing it in his vehicle and/or actually setting out after his parents then we would be placing

the victims, innocent bystanders and law enforcement in harm's way. The simple fact of the matter is that

good and swift law enforcement thwarted a potentially violent situation.

¶28. We hold Morris's assignment of error to be without error.

¶29. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT OF CONVICTION

OF COUNTS I AND II ATTEMPTED MURDER AND SENTENCE OF SIX YEARS

RESPECTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF

CORRECTIONS, SAID SENTENCES TO RUN CONSECUTIVELY, IS AFFIRMED. ALL

COSTS ARE TAXED TO THE APPELLANT.

BRIDGES, DIAZ, IRVING, LEE, AND PAYNE, JJ., CONCUR. McMILLIN, C.J., DISSENTS

WITH SEPARATE WRITTEN OPINION JOINED BY KING AND SOUTHWICK, P.JJ., AND

COLEMAN, J.

McMILLIN, C.J., DISSENTING:

¶30. I respectfully dissent. Though there can be no doubt that Morris was engaged in nightmarish behavior,

the clear effect being to intimidate and frighten his parents out of their wits, in my view he had not so clearly

embarked on a committed course to purposely cause the death of his parents that a conviction for

attempted murder may be permitted to stand.

¶31. None of Morris's bizarre actions can fairly be classed as "a direct ineffectual act" done toward the

commission of the crime of murder. Edwards v. State, 500 So. 2d 967, 969 (Miss. 1986).

¶32. The letter Morris wrote to his parents, though evidently the product of a severely troubled personality,

does not contain actual threats of murder. He vows to make his parents "wish you weren't so nasty to me,"

and to destroy his parents "like you done me." Clearly, whatever destruction Morris feels his parents might
have visited upon him in the past, he only promises to respond in kind. Since Morris remained alive, that

threat of retribution could not be fairly read as a death threat, by any reasonable construction.

¶33. At no time during any of the face-to-face encounters between Morris and his parents did Morris do

anything other than make threats. He apparently was not armed during any of these encounters. The only

evidence on the point was Morris's own assertion that the weapon he had purchased remained at the pawn

shop. The fact that, on the last actual encounter when the parents saw Morris in his car, he was observed to

reach over into the his back seat of his vehicle does not prove an overt act toward murder. There is no

evidence that would support an inference that, in doing so, he produced a firearm or that a firearm was

even in the vehicle at that time. No further contact between Morris and his parents occurred prior to

Morris's arrest at the Columbus motel. By that time, Morris's parents had left the community for their own

safety. At the time of his arrest, Morris was inside the motel room and certainly not in a position to inflict

imminent harm on his parents but for timely police intervention. The arresting officers discovered an

unloaded rifle in the closet of Morris's motel room and a supply of ammunition, but there are simply too

many uncertain events that would have to occur for the mere presence of an unloaded firearm in a motel

room to constitute an overt act toward the murder of a person no longer physically present in the

community.

¶34. On these facts, there is no direct act toward the commission of the crime of murder to support an

attempt conviction. Even in their worst light, Morris's acts were too early in the preparatory stage to

constitute an actual attempt. A threat to kill another person no matter how credible, combined with

evidence that the threatening person possesses a firearm is not enough to sustain a conviction for attempted

murder. Justice Oliver Wendell Holmes, Jr., in his classic work entitled The Common Law said:

The law does not punish every act which is done with the intent to bring about a crime. If a man starts

from Boston to Cambridge for the purpose of committing a murder when he gets there, but is stopped

by the draw and goes home, he is no more punishable than if he had sat in his chair and resolved to

shoot somebody, but on second thoughts had given up the notion. . . We have seen what amounts to

an attempt to burn a haystack ["lighting a match with intent to set fire to a haystack has been held to

amount to a criminal attempt to burn it, although the defendant blew out the match on seeing that he

was watched."], but it was said in the same case, that, if the defendant had gone no further than to buy

a box of matches for the purpose, he would not have been liable.

Oliver Wendell Holmes, Jr., The Common Law 68 (Sheldon M. Novik ed., Dover Publications, Inc. 1991)

(1881). In a continuing discussion on the subject, Justice Holmes notes that "judges have been puzzled

where to draw the line," but illustrates what, in his view, it takes to constitute a criminal attempt by

observing as follows:

When a man buys matches to fire a haystack, or starts on a journey meaning to murder at the end of

it, there is still a considerable chance that he will change his mind before he comes to the point. But

when he has struck the match, or cocked and aimed the pistol, there is very little chance that he will

not persist to the end, and the danger becomes so great that the law steps in.

Id. at 68-69.

¶35. I do not seek to discount the apprehension and reasonable fears of Morris's parents for their own

safety, and it may well be that Morris was guilty of crimes besides attempted murder for which he could
have been charged and punished. By way of example, I note that his original arrest was for the crime of

stalking. I am, nevertheless, firmly convinced that Morris had not progressed so far into a scheme to cause

the death of his parents that he may properly be convicted of attempted murder.

¶36. I would reverse and render.

KING AND SOUTHWICK, P.JJ., AND COLEMAN, J., JOIN THIS SEPARATE WRITTEN

OPINION.

1. Section 97-1-7 provides:

Every person who shall design and endeavor to commit an offense, and shall do any overt act toward

the commission thereof, but shall fail therein, or shall be prevented from committing the same, on

conviction thereof, shall, where no provision is made by law for the punishment of such offense, be

punished as follows: If the offense attempted to be committed be capital, such offense shall be

punished by imprisonment in the penitentiary not exceeding ten years; if the offense attempted be

punishable by imprisonment in the penitentiary, or by fine and imprisonment in the county jail, then the

attempt to commit such offense shall be punished for a period or for an amount not greater than is

prescribed for the actual commission of the offense so attempted.

Miss. Code Ann. S 97-1-7 (Rev. 1994).