Opinion
No. 36459.
May 5, 1947.
1. ARREST.
The statute authorizing an arrest to be made without a warrant for an offense not committed in presence of person making the arrest is declaratory of the common law, and under it there must be probable cause to believe that a felony has been committed and that person to be arrested is the guilty party (Code 1942, sec. 2470).
2. ARREST.
That there were good grounds to believe that person proposed to be arrested without warrant for an offense not committed in presence of person making the arrest was present at time felony was committed, did not authorize the arrest under statute (Code 1942, sec. 2470).
3. ASSAULT AND BATTERY.
When an aggressor is committing a crime against the person, the victim may respond to or combat the aggression with a force of like degree or character without any accountability on his part to the law for so doing.
4. ASSAULT AND BATTERY.
Evidence was insufficient to support conviction of defendant for shooting at sheriff, where it was shown that sheriff and his deputies first shot at defendant and his brother while attempting to make an unauthorized arrest without warrant (Code 1942, sec. 2470).
APPEAL from the circuit court of Smith county. HON. HOMER CURRIE, Judge.
Edwards Edwards, of Mendenhall, and Dixon L. Pyles, of Jackson, for appellant.
The trial court erred in failing to grant appellant's motion or instruction to find appellant not guilty at the close of all evidence. In so doing, appellant was denied his inherent right of self-defense.
Nichols v. State, 198 Miss. 821, 24 So.2d 14; Aldrige v. State, 59 Miss. 260; Garner v. State, 93 Miss. 843, 47 So. 500; Long v. State, 52 Miss. 23; Jones v. State, 170 Miss. 741, 155 So. 416; Cofer v. State, 152 Miss. 761, 118 So. 613; Mapp v. State, 148 Miss. 739, 114 So. 825; Elardo v. State, 164 Miss. 628, 145 So. 615; Norman v. State, 167 Miss. 690, 146 So. 639; Loeb v. State, 133 Miss. 883, 98 So. 449; McGowan v. State, 184 Miss. 96, 185 So. 826; United States v. Outerbridge, 5 Sawy. 620; United States v. Holmes, 1 Wall Jr. 1; Oliver v. State, 17 Ala. 587; Campbell v. People, 16 S.C. 16; Meredith v. Com., 18 B. Mon. 49; Shorter v. People, 2 N.Y. 193; Pond v. People, 8 Mich. 160; State v. Sloan, 47 Mo. 604; 6 L.R.A. 424, annotation; 1 Wharton Criminal Law (8 Ed.), Sec. 94.
Appellant would have been justified in the use of force necessary to protect his life and the lives of his family.
Cotton v. State, 31 Miss. 504; Re Neagle, 39 F. 833, 5 L.R.A. 78, note; 6 L.R.A. 425, annotation.
Appellant was denied his constitutional right of security in his person, house and possession.
Brown v. State, 173 Miss. 542, 161 So. 465, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682; Constitution of 1890, Sec. 23; United States Constitution, Arts. V, XIV.
Appellant was denied his constitutional right under the 14th Amendment to the Constitution of the United States by the failure of the court to instruct the jury as to essential elements of the crime charged.
Albritton v. City of Winona, 181 Miss. 75, 178 So. 799; Gill v. L.N. Dantzler Lumber Co., 153 Miss. 559, 121 So. 153; Montgomery v. State, 85 Miss. 330, 37 So. 835; Carter v. State, 198 Miss. 523, 21 So.2d 404; Herndon v. Lowery, 301 U.S. 242; Tompkins v. Missouri, 323 U.S. 485, 487; Glasser v. United States, 315 U.S. 60, 71; Brown v. Mississippi, 297 U.S. 278, 287; Boykin v. Huff, 121 F.2d 865, 870.
An officer making or attempting to make an unlawful arrest becomes a trespasser and stands no better ground than if he were not an officer.
Wilkinson v. State, 143 Miss. 324, 108 So. 711, 46 A.L.R. 895; Hinton v. Sims, 171 Miss. 741, 158 So. 141; Gurley v. Tucker, 170 Miss. 565, 155 So. 189; Cotton v. State, 135 Miss. 792, 100 So. 383; Mapp v. State, supra; Kennedy v. State, 139 Miss. 579, 104 So. 449; King v. State, 147 Miss. 31, 113 So. 173; State v. Randle, 118 S.C. 158, 110 S.E. 123; Carter v. State, 30 Tex. App. 551[ 30 Tex.Crim. 551], 17 S.W. 1102, 28 Am. St. Rep. 944; Robertson v. Arizona, 110 C.C.A. 489, 188 F. 783; Stinson v. State, 76 Fla. 421, 80 So. 506; Meirs v. State, 34 Tex.Crim. R., 83 Am. St. Rep. 705, 29 S.W. 1074, 46 A.L.R. 904; Robinson v. State, 53 Ark. 516, 14 S.W. 903.
The trial court erred in not sustaining the demurrer to the indictment since no time was stated in it.
State v. Glennen, 93 Miss. 836, 47 So. 550.
Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.
The sheriff has the right to arrest without a warrant where he has information that a felony has been committed or probable cause for believing that the defendants were the persons doing the shooting.
Pickett v. State, 139 Miss. 529, 104 So. 358; Code of 1942, Sec. 2470.
Appellant contends that he would have been justified in the use of force necessary to protect his life and the lives of his family. Under the facts in this record that point does not come into play. The defendant and others within the house had engaged in a shooting, and were subject to arrest, and had no right to resist arrest or to flee from arrest. An officer seeking to arrest a party may make pursuit of the party if he undertakes to flee from arrest, and if a felony has been committed or the facts are sufficient to constitute probable cause for the officer to believe a felony has been committed or the facts believed probable, the officer may shoot in order to arrest a person in such cases. And a fleeing defendant who has committed a felony has no right to shoot at the officer, even to protect himself from mortal injury.
Pickett v. State, supra.
The appellant contends that his rights guaranteed by Section 23 of the State Constitution was violated by the officers. That section of the Constitution does not protect a person who has committed a crime from arrest by an officer of the law. If an arrest is unlawful, it may be resisted, but no person's home affords immunity from entry for purposes of arrest.
Monette v. Toney, 119 Miss. 846, 81 So. 593, 5 A.L.R. 261.
Appellant contends that he was denied his constitutional rights under the 14th Amendment to the Federal Constitution by failure of the court to instruct the jury as to essential elements of the crime charged. Under Section 1530 of the Code of 1942, the judge cannot give any instruction on the law until requested to do so by the parties to the suit or their attorneys. I know the difference in the right of a Federal judge to give instructions to the jury on his own notions of the law and that of a judge in this State; the Federal judge not being restricted by any statute from so doing, while under the State Law the judge cannot instruct the jury at all, until requested.
Appellant contends that an officer making or attempting to make an unlawful arrest becomes a trespasser and stands on no better ground than if he were not an officer. Counsel cites the case of Wilkinson v. State, 143 Miss. 324, 108 So. 711, 46 A.L.R. 895. This case is not applicable here because in that case the officer was an original trespasser, and in attempting to make an unlawful arrest was resisted and to save his own life, shot and killed the person sought to be arrested. See the case note to this case in 46 A.L.R. showing that the decision there was contrary to the weight of authority elsewhere; and the case note to this case shows that the dissenting opinion was in harmony with the weight of the authorities. The officers in the present case were not trespassers and they did not inflict any wounds on the appellant but were trying to stop his flight by the shooting so that he could be arrested, which acts were authorized by the law of arrests.
An indictment for any offense shall not be insufficient for omitting to state the time at which the offense was committed in any case where time is not of the essence of the offense, nor for stating the offense to have been committed on a day subsequent to the finding of the indictment, or on an impossible day, or on a day that never happened, nor for the want of a proper or perfect venue.
Code of 1942, Sec. 2451.
The Sheriff of Smith County received reliable information, on Sunday night, August 18, 1946, that a felony had been committed that night at or near the residence of a negro named Albert Craft, Sr., in the southwestern portion of the county, but he had no information as to who was the guilty party or whether one or more. About eight o'clock the next morning, accompanied by seven deputies, he went to the Craft home with the purpose, as the record sufficiently discloses, to arrest all those found there to the end that having taken them into custody, he could better investigate their guilt, if any of them were guilty. He had no warrant for the arrest of any person or persons, and no such warrant had been issued.
When he and some of his deputies had reached a point within less than a quarter of a mile of the Craft residence and in plain view thereof, he and his deputies saw several negroes leave the house in flight therefrom, whereupon the sheriff and a number of his deputies hastened to the premises, called upon the fleeing negroes to halt, and upon their failure to do so, members of the posse, including the sheriff himself, fired on the negroes, and some of them continued to do so as long as any of the negroes remained within range.
It appears that on the previous night unknown parties had fired a considerable number of shots into the Craft house, and that when the posse appeared within sight on the next morning, the elder Craft, without recognizing who they were, became excited and alarmed and exclaimed that all the negroes in the house should run for their lives; and this they did. One of them was a negro named Cooper who had come there that morning to go to work, and as best can be ascertained from this rather imperfect record, he led the flight, followed immediately by the others including appellant, who is the nineteen-year-old son of Albert Craft, and also Albert Craft, Jr., twelve years old, a brother of appellant.
Cooper was the first to be fired upon by the posse, and when appellant in his flight reached the hog pen, they shot at him, and the twelve-year-old boy was fired upon as he ran through the cotton patch. The sheriff admitted that he himself fired at the boy. There was a thicket immediately beyond the cotton patch, and when appellant reached the thicket, he turned and fired back at the sheriff, when the sheriff in his advance had reached a point about thirty steps into the cotton patch; and it was for this that appellant was convicted and sentenced to the penitentiary.
The facts about the firing upon the fleeing negroes, as briefly outlined above, was established by the testimony of three of the negroes who fled, and by that of the elder Craft who remained at the house, the other negroes not having been introduced; and not only is that testimony wholly undisputed by the State, but is in a measure substantiated by two of the State's witnesses. Wherefore the facts about that matter, substantially as stated, must be, and they are, accepted as true.
Under our statute, Section 2470, Code 1942, an arrest may be made without warrant and for an offense not committed in the presence of the person making the arrest when a felony has been committed and the person making the arrest "has reasonable ground to suspect and believe the person proposed to be arrested to have committed it." The statute is declaratory of the common law and under it there must be probable cause to believe that (1) a felony has been committed, and (2) that the person to be arrested is the guilty party. Howell v. Veiner, 179 Miss. 872, 880, 176 So. 731. It is not enough that there is good ground to believe that a felony has been committed, but the ground for the belief must include also as an element essential to the right to arrest that the party to be arrested is the person guilty of the felony. Without the second element the first had as well not exist.
And it is not enough that there was good ground to believe that the person proposed to be arrested was present at the time the felony was committed. This was in effect so held in Cochran v. State, 191 Miss. 273, 276, 2 So.2d 822, 823, a case where an arrest was made on direct information that the person arrested was present, and wherein nevertheless the arrest was held to have been unlawful, for the reason that "some degree of participation in the criminal act must be shown in order to establish any criminal liability. Proof that one (was present or) has stood by at the commission of a crime without taking any steps to prevent it does not alone indicate such participation or combination in the wrong done as to show criminal liability, although he approves of the act."
It may be that under modern conditions it would be better in the interest of the public protection and safety at large that arrests without warrant in felony cases should be permitted on suspicion that within the range of reasonable possibility the person to be arrested is the guilty party, eliminating the requirement of belief in the reasonable probability of his guilt; but such change would have to be made, within constitutional limitations, by the legislature and not by the courts, — so that in the meantime we must maintain the law as it is. Compare Laster v. Chaney, 180 Miss. 110, at page 117, 177 So. 524.
The sheriff distinctly and frankly admitted at three different places in his cross-examination that he had no grounds of belief as to any particular person or persons who was or were the guilty party or parties in the felony alleged to have been theretofore committed, and the most that can be squeezed from this record is that he had grounds to believe that the fleeing negroes had been present, and this, as stated, was not sufficient.
He and his posse had, therefore, no right to arrest the fleeing negroes, no right to attempt to halt them, and emphatically no right to shoot at them or any one of them while they were fleeing, however sincerely, under a mistaken notion of his authority under the law, he may have thought he had a right to do as he and his deputies did. Had any one of the fleeing negroes been killed when being thus shot at, the person who fired the fatal shot would have been guilty of manslaughter.
When, singular or plural, an aggressor is committing a crime against the person, the victim may respond to or combat the aggression with a force of like degree or character and without any accountability on his part to the law for so doing; and this is all that the appellant did here. No other authority is needed for this statement than the recent case, Nichols v. State, 198 Miss. 821, 24 So.2d 14. The shooting at his twelve-year-old brother by the sheriff and his posse, admitted by the sheriff, would justify appellant's action, even if they had not been shooting at appellant himself. Under the present record, stripped of its straw, this is all there is to this case; wherefore appellant was entitled to the peremptory charge requested by him.
Reversed, and appellant discharged.