
    Billy Glen BILES v. STATE of Mississippi
    No. 49179.
    Supreme Court of Mississippi.
    Nov. 2, 1976.
    Bernard Gautier, Pascagoula, for appellant.
    A. F. Summer, Atty. Gen., by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, SUGG and LEE, JJ.
   SUGG, Justice,

for the Court.

Billy Glen Biles was convicted of capital murder and sentenced to death by the Circuit Court of Jackson County.

The evidence on behalf of the State was sufficient to support a conviction for murder but was not sufficient to support a conviction for capital murder because the proof did not show beyond a reasonable doubt that the defendant murdered Henry Muller while engaged in the commission of the crime of kidnapping. Mississippi Code Annotated section 97-3-19(2)(e) (Supp. 1975).

The indictment for capital murder in this case is sufficient to charge defendant with murder as a lesser included offense.

In Jackson v. State, 337 So.2d 1242, rendered October 5, 1976, we held a jury may be instructed in a capital murder case that it may find a defendant guilty of a lesser included offense. Since a jury may be instructed in a capital murder case that it may find a defendant guilty of a lesser included offense when such instruction is justified by the evidence, the following rule which is well established in our jurisprudence is applicable. A jury verdict may be affirmed as to guilt, but the case remanded for. resentencing when the proof is not sufficient to sustain a conviction for the crime charged, but is sufficient to sustain a conviction for a lesser included offense. Wells v. State, 305 So.2d 333 (Miss.1974) and cases cited therein.

We therefore reverse the conviction of capital murder and remand for resentenc-ing for murder.

CAPITAL MURDER CONVICTION REVERSED AND REMANDED FOR RE-SENTENCING FOR MURDER.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON, WALKER, BROOM and LEE, JJ., concur. 
      
      . The charging part of the indictment is as follows:
      [U]nlawfully, wilfully, feloniously, and of his malice aforethought did, then and there, kill and murder one Henry Muller a human being, while he, the said Billy Glen Biles, was then and there engaged in the commission of kidnapping the said Henry Muller by forcing the said Henry Muller to drive him, the said Billy Glen Biles, at gunpoint, and do his bidding, in violation of Section 97-3-19(2)(e) of the Mississippi Code of 1973, as amended . . .
     