Opinion
No. 36457.
June 2, 1947.
1. HOMICIDE.
Under statute, the killing of a person who is fleeing from arrest for felony is not justifiable, even when the arrest is under warrant, unless arrest could not otherwise be made or unless arrest is of a desperate and dangerous criminal of a vicious type (Code 1942, sec. 2218).
2. CRIMINAL LAW.
Flight is a circumstance which may be considered by the jury in connection with all other material evidence in determining guilt but its value is ordinarily slight and it is not substantive evidence of guilt since it is consistent with innocence as well as guilt (Code 1942, sec. 2218).
3. ASSAULT AND BATTERY.
A sheriff who allegedly had reliable information that a felonious shooting had occurred at certain house was not justified in concluding that there was probable cause to believe that negroes, who ran from the house on approach of the sheriff and his posse on the following morning, and because they ran, were guilty participants in felony of the night before, and was not justified in shooting, or shooting at, the fleeing negroes as a necessary means of accomplishing their arrest (Code 1942, sec. 2218).
APPEAL from the circuit court of Smith county. HON. HOMER CURRIE, J.
Edwards Edwards, of Mendenhall, and Dixon Pyles, of Jackson, for appellant.
The evidence taken and considered as a whole entitled the defendant to a peremptory instruction.
An officer making an arrest is required to disclose his identity as an officer and when the arrest is made to inform the person arrested of the cause of such arrest.
Hinton v. Sims, 171 Miss. 741, 158 So. 141; Code of 1930, Sec. 1227.
Every citizen has the right to occupy his home and premises free from such invasion as was made by the sheriff, and be secure in his person and possessions from unreasonable seizures and searches.
Constitution of 1890, Sec. 23.
Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.
The sheriff was acting upon dependable information that a felony had been committed on Sunday night in a shooting at the Craft home in the sheriff's county and he was empowered by the statute to pursue, apprehend, and commit to jail all persons charged with the felony.
Code of 1942, Sec. 4254.
See also Code of 1942, Sec. 2470.
An officer having knowledge or probable cause of believing a felony is being committed or has been committed may go on the premises without a warrant for arrest and without a search warrant.
Pickett v. State, 139 Miss. 529, 104 So. 358; Kennedy v. State, 139 Miss. 579, 104 So. 449; Love v. State, 142 Miss. 602, 107 So. 667; Monette v. Toney, 119 Miss. 846, 81 So. 593, 5 A.L.R. 261.
This is not a case where the officers were first shooting at the defendant. It is true they were pursuing and shooting at others, who were fleeing, but the appellant himself, being armed with the rifle, fired from a secret place at the sheriff, which was so close to the sheriff that had the aim been good, and the shot well directed, would have been effective in wounding or killing the sheriff. The jury are the judges of the sufficiency of the evidence in all cases of disputed facts. This case in no sense is governed by the facts recited and the conclusions reached in the case of Craft v. State, 202 Miss. 43, 30 So.2d 414, although each of the cases grew out of the effort of the sheriff to find out the facts and to arrest the guilty party. The case of Hinton v. Sims, 171 Miss. 741, 158 So. 141, 778, only requires the officers making the arrest to disclose the cause and object of the arrest after the arrest has been accomplished. See Code of 1942, Sections 2467, 2468, 2469.
It seems to me that when an officer starts to investigate a transaction such as the shooting here, where it was not known what parties did the actual shooting or what parties had started or encouraged the shooting, the very fact that the defendant and others fled as the officers approached is sufficient to cause the officer to believe, in good faith, that the fleeing parties were connected with the transaction, and in fact flight is evidence of guilt. It is true that flight may be explained but in cases where flight is in proof it devolves on the fleeing party to explain and prove the reason for the flight from the officers and that the flight was not from a sense of guilt.
The evidence in this case is in all material respects substantially the same as that in W.O. Craft v. State, 202 Miss. 43, 30 So.2d 414, and is controlled by the opinion in that case, to which we would add nothing further were it not for the fact that in the present case a point is presented which was not made in the Craft case. The new point is this:
That the sheriff having had reliable information that a felonious shooting had occurred at the house of Craft, Sr., on the night before, was justified in concluding that there was probable cause to believe that the negroes, who ran from the house on the approach of the sheriff and his posse on the following morning, and because they ran, were guilty participants in the felony of the night before; that he was therefore justified in arresting the fleeing negroes, and in shooting them as they fled as necessary means of accomplishing the arrest.
No authority is cited for this grave assertion, and under Johnson v. State, 154 Miss. 512, 122 So. 529, we might, within our discretion, decline to decide the point, treating it as if it had not been made. But we do decide it and hold that under the facts, so far as disclosed by this record, the contention is not maintained. In the first place, under our statute, Section 2218, Code 1942, the killing of a person who is fleeing from arrest for felony is not justifiable, even when the arrest is under warrant, except when so to do is necessary — that a resort to such severe means is permissible only when the arrest could not otherwise be made, Jackson v. State, 66 Miss. 89, 95, 5 So. 690, 14 Am. St. Rep. 542, a further exception being recognized under proper circumstances in cases of arrest of desperate and dangerous criminals of a vicious type, Gurley v. Tucker, 170 Miss. 565, 571, 155 So. 189. See also 4 Am. Jur. p. 57 and 6 C.J.S. Arrest, sec. 13, p. 613.
In the second place, to give to the circumstance of mere flight the probative force here insisted on would carry it far beyond the support of any of the modern authorities on the subject. In 2 Wharton on Criminal Evidence (11th Ed.) Sec. 940, p. 1652, it is said: "Evidence of flight . . . of one charged with crime is of slight value as bearing on the question of guilt, and none whatever unless there are facts pointing to the motive which prompted it. . . . In other words, flight is but a subsidiary inferential fact, counting for much or little, as the other evidence in the case may weigh with it." With this statement the text and notes Underhill Criminal Evidence (4th Ed.) Sec. 253, at p. 475, are in agreement. And so is our own case, Smith v. State, 58 Miss. 867, 871, wherein it is said of the fact of flight that: "Its value is ordinarily slight, but circumstances may invest it with peculiar force." In Howard v. State, 182 Miss. 27, 35, 181 So. 525, 526, we said: "Flight is a circumstance which may be considered by the jury in connection with all the other material evidence in the case in determining guilt but it is not substantive evidence of guilt since it is consistent with innocence as well as guilt."
The pertinency of these sound and salutary obervations is strikingly illustrated by the facts in the present case, to wit, that appellant and two others who fled were not at the Craft house at any time on the night before; had arrived there on the following morning only a few minutes before the appearance of the sheriff and his posse, and fled for no other reason than that they were frightened into doing so by the alarm sounded by old man Craft and his call to them to run for their lives. There were no such circumstances here as gave to the flight anything beyond its ordinary value, which, as our Court has said, is "ordinarily slight," and being slight furnishes no sufficient basis for a conclusion of probable cause, or for the pursuit of such cause to the extreme of shooting, or shooting at, the fleeing negroes.
Reversed and appellant discharged.