Griffin v. State (1988)

The court in Griffin v. State, 533 So. 2d 444, 447-48 (Miss. 1988), explained that a defendant may request an instruction regarding any offense carrying a lesser punishment if the lesser offense arises out of a nucleus of operative fact common with the factual scenario giving rise to the charge laid in the indictment. Therefore, if the evidence warrants it, a defendant is entitled to a lesser-offense instruction the same as he would be entitled to a lesser-included-offense instruction. Id. Oftentimes granting a lesser-offense instruction creates a problem regarding whether the indictment covers the lesser offense. The argument arises that the indictment on a charge of armed robbery will not support a conviction for accessory after the fact, because it is a separate and distinct offense. However, this is not a problem when granting lesser-included instructions. The Supreme Court has held that by requesting the instruction, the defendant waives any inadequacy or notice in the indictment. Griffin, 533 So. 2d at 448.