Walker v. State , 188 Miss. 177 ( 1939 )

The appellant was indicted and convicted in the circuit court of Lowndes county for the murder of S.A. Honeycutt. The jury in its verdict did not fix the punishment at life imprisonment, therefore the court sentenced the appellant to be hanged. From that judgment this appeal is prosecuted.

The court refused an instruction requested by appellant, that under the evidence the jury could not find a verdict for a greater offense than manslaughter. We are of opinion that the refusal of that instruction was error. We reach that conclusion upon the following considerations:

The question turns largely, if not wholly, on whether or not, when the homicide took place, the appellant was under arrest by Honeycutt without authority of law. Honeycutt had a watermelon patch on the outskirts of the city of Columbus, near a garment factory. Shortly before five o'clock on the morning of July 22, 1938, the appellant went into this patch and stole a watermelon. He had proceeded some distance from the patch with the watermelon, and stepped behind a tree, when Honeycutt came up and discovered him. Honeycutt asked the appellant where he got the watermelon. The appellant replied that he got it out of a watermelon patch not far away. Honeycutt forced the appellant to show him the place where he got it. When that was done Honeycutt recognized that the watermelon had been taken from his patch. All that Honeycutt knew about the larceny was what the appellant told him, and the presence of the watermelon.

Honeycutt was armed with a pistol, which he had in his hand. He forced appellant to go to the garment factory with him for the purpose of calling a deputy sheriff to come and take charge of the appellant. He found a man named Godfrey at the garment factory — the night watchman there who was about to go off duty. He also found a man named Vaughn, the day watchman, who was coming on duty to relieve Godfrey. Honeycutt requested Godfrey to call a constable, Smith, to come and take charge of the appellant. Godfrey was about to make his last round in the factory, and requested Vaughn to call Smith, which he did.

While this was going on Honeycutt and the appellant were nearby, in the factory building, but out of sight and hearing of Godfrey and Vaughn, or anyone else. Honeycutt was guarding the appellant at the point of a pistol, awaiting the appearance of the constable to take him into custody. The appellant begged Honeycutt to permit him to pay for the watermelon and leave. Honeycutt refused to do so. They were strangers — they had never met before.

Down to this point there is no conflict in the evidence. The testimony of the witness, Godfrey, that Honeycutt said to him in the presence of the appellant, "Yes, sir, this boy was stealing watermelons!," does not prove, or tend to prove that the crime was committed in his presence. It meant nothing more than that Honeycutt had found appellant in possession of a watermelon which he confessed he had stolen.

The appellant testified that while awaiting the appearance of the constable he made up his mind that he was going to break away from Honeycutt and escape; that accordingly he attempted to do so, whereupon Honeycutt shot at him, and he, having a pistol himself, drew it and shot at Honeycutt three or four times as he fled, and made his escape.

Vaughn testified that he heard one shot; then, after a short period, three or four shots in rapid succession. When Vaughn and Godfrey reached Honeycutt he was down from the wound, and died in a very short time without making any statement. The appellant had disappeared from the scene. Whatever conflict there was in the evidence as to who shot first came about as the result of a confession afterwards made by the appellant. The witnesses to the confession testified that the appellant stated that he made up his mind to kill Honeycutt and escape; and to carry out that purpose shot first.

Honeycutt's right to make the arrest depends on whether or not the larceny was committed in his presence. Section 1227, Code of 1930, provides among other things that it shall be lawful for a private person to "arrest any person without warrant, for an indictable offense committed, or a breach of the peace threatened or attempted in his presence." In order to justify an arrest for a misdemeanor, by a private person or an officer, without a warrant, the entire body of the crime must have taken place in the presence, or the hearing and presence, of such private person or officer. A necessary element of the crime cannot be supplied either by the confession of the accused or by information from an outside source. Myers v. State, 158 Miss. 554, 130 So. 741; Kennington Saenger v. Wicks, 168 Miss. 566, 151 So. 549; Butler v. State, 135 Miss. 885, 101 So. 193; Stanley v. State, 82 Miss. 498, 34 So. 360; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 286, 69 L.Ed. 543, 39 A.L.R. 790; 6 C.J.S., Arrest, Sec. 5, pages 580, 581, 582. In the Stanley case the court held that under Section 1255, Code 1892, making it a crime to mingle poison with any food or drink or medicine with intent to kill or injure any human being, the corpus delicti is the mingling of the poison with the food, drink or medicine, and the same cannot be proved alone by the confession of the accused.

In the Carroll case the Supreme Court of the United States used this language:

"`In cases of misdemeanor, a peace officer, like a private person has at common law no power of arresting without a warrant except when a breach of the peace has been committed in his presence or there is reasonable ground for supposing that a breach of peace is about to be committed or renewed in his presence.' Halsbury's Laws of England, Vol. 9, part III, p. 612.

"The reason for arrest for misdemeanors without warrant at common law was promptly to suppress breaches of the peace (1 Stephens, History of Criminal Law, 193), while the reason for arrest without warrant on a reliable report of a felony was because the public safety and the due apprehension of criminals charged with heinous offenses required that such arrests should be made at once without warrant. Rohan v. Sawin, 5 Cush. (Mass.) 281."

All that Honeycutt observed was a watermelon in the possession of appellant. He had no knowledge whatever that it had been stolen from him except through the confession of appellant. Devine v. State, 132 Miss. 492, 96 So. 696; Watson v. State,36 Miss. 593; Johnson v. State, 47 Miss. 671, relied on by the attorney-general, are not in point. It is true, they hold that larceny is a continuous offense, and is being committed at all times during which the thief deprives the owner of the stolen property of its possession. These cases do not hold, however, that the completed crime is committed in the presence of every person who observes the stolen property in possession of the thief, and has information from some source that it has been stolen.

The arrest was unlawful. Section 995, Code of 1930, provides as follows: "Every person who shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or to do any unlawful act, or after such attempt shall have failed, shall be guilty of manslaughter." Where the arrest is unlawful the person arrested has the right, under the law, to use the necessary force to free himself. He can kill, if reasonably necessary, and in doing so is guilty of no crime. On the other hand, if he kills unnecessarily, but without malice aforethought, he is guilty of manslaughter. If he kills unnecessarily, with malice aforethought, he is guilty of murder. Bergman v. State, 160 Miss. 65, 133 So. 208; Williams v. State, 120 Miss. 604, 82 So. 318; Williams v. State, 122 Miss. 151, 84 So. 8; Williams v. State, 127 Miss. 851, 90 So. 705; Fletcher v. State, 129 Miss. 207, 91 So. 338.

Under the evidence in this case there is no element of murder. There is entire absence of malice aforethought — no premeditation. The appellant and Honeycutt were strangers to each other. Taking the appellant's testimony as a witness in his own behalf to be true, he shot in self-defense; and of course if he did he is guilty of no crime. Taking his confession to be true, it means that he made up his mind to kill Honeycutt in order to escape, and shot first. If he shot unnecessarily, he was guilty of manslaughter. On the other hand, if the shooting was reasonably necessary to effect his escape, he is guilty of no crime.

We conclude, therefore, that the issue of manslaughter alone ought to have been submitted to the jury. We do not notice the other assignments of error, because they are of such character as will not occur on another trial.

Reversed and remanded.