Love v. State , 142 Miss. 602 ( 1926 )

^* Corpus Juris-Cyc. References: Arrest, 5 C.J., p. 399, n. 78; p. 400, n. 83; p. 417, n. 5; p. 427, n. 13. Criminal Law, 16 C.J., p. 570, n. 90; p. 969, n. 37 New; 17 C.J., p. 286, n. 41. Incest, 31 C.J., p. 382, n. 56; p. 387, n. 35. On right of peace officer to enter a private house or inclosure for purpose of making an arrest, without a warrant, for a suspected misdemeanor, see note in 26 A.L.R. 286; 2 R.C.L., p. 446; 2 R.C.L. Supp. 541; 4 R.C.L. Supp., p. 111; 5 R.C.L., Supp., p. 97; Election between counts for separate offence, see 14 R.C.L., p. 198; 3 R.C.L. Supp., p. 195; 4 R.C.L. Supp., p. 887; 5 R.C.L. Supp., p. 753. The appellant, Mary Love, was convicted of the crime of incest, being an accessory before the fact to a crime committed by one Dr. Blocker and a stepdaughter of his named Shotwell. It appeared from the state's evidence that Dr. Blocker and his stepdaughter had been arrested in a room in appellant's house in the act of sexual intercourse. It further appeared that some few months prior to the date of the arrest that one Hitch was at appellant's house for the purpose of an assignation with another woman, and, while there, the appellant talked over the telephone with some one, and agreed in said conversation to let the person speaking to her have a room; that shortly thereafter Dr. Blocker and his stepdaughter came to appellant's house, and went into a room in said house where the witness was. The witness thereupon walked out of the room to the front porch of the house, and was followed by Dr. Blocker, who requested the witness not to mention the fact that he and his stepdaughter were there, and Hitch told Dr. Blocker he would not mention the affair, unless the doctor was discovered, but that, if the doctor was indicted for it, he (Hitch) would do all he could against him; that he (Hitch) on the same occasion said to the appellant that the girl was mighty young, and was the stepdaughter of Blocker, and that she (the appellant) ought not to permit them to occupy a room for that purpose; that appellant told him that she would not let Blocker come to her house again with that girl.

It further appeared that subsequent to this time, and shortly before the day of the arrest, a person went to the chief of police in the city of Clarksdale where the offense was committed, and informed the chief of police that Dr. Blocker was having assignations with his stepdaughter at the home of Mary Love, and requested the aid of the police department in detecting and arresting Dr. Blocker for that offense, and that the policeman was assigned to that case who afterwards made the arrest of Dr. Blocker. This policeman went to a nearby house occupied by a negro woman named Ella Young, from which house he could see the house of Mary Love. About three days before the arrest of Dr. Blocker this policeman was at Ella Young's house watching Mary Love's house, and saw Dr. Blocker walk onto the back porch of appellant's house, and then go back into the house, where he stayed about thirty minutes, and then came out of appellant's house, and got into an automobile and drove down the back street, and then to the street in front of appellant's house, and, when Dr. Blocker reached the front of Mary Love's house his stepdaughter came out of appellant's house, and got in the car with Dr. Blocker and drove away. That on the day of the arrest this policeman again went to the house of the negro woman named Ella Young, and was told by her that Dr. Blocker and his stepdaughter were in appellant's house, and the policeman saw Dr. Blocker's automobile in the rear of Mary Love's house, and the policeman knew the car and the number on it. The policeman waited a few minutes, and then went to appellant's house and knocked on the door, and, as he got no response, he broke open the door, and found Dr. Blocker and his stepdaughter in the bed, naked, and in the act of sexual intercourse, whereupon the policeman arrested Dr. Blocker. It was also shown in the proof that Dr. Blocker had pleaded guilty and had been sentenced to the penitentiary for his offense.

The testimony of the policeman was objected to on the ground that he did not have a warrant either to search the house of appellant or to arrest any one therein. On the examination of the policeman with reference thereto he testified that he did not have a warrant either for arrest or for a search, but he testified that he had information that a felony was being committed in appellant's house, and that he went into appellant's house for the purpose of arresting Dr. Blocker for the felony. On cross-examination he stated that he did not know at the time that the offense was a felony, or what grade crime it was, but that he knew the relationship that existed between Dr. Blocker and his stepdaughter, and had information which led him to believe that a crime was being committed in appellant's house. In other words, he had information giving him knowledge that an offense constituting a felony was being committed in appellant's house, although he did not know it was a felony.

We think the evidence is admissible because the officer had a right to make the arrest without a warrant, where a felony was being committed, or had recently been committed, although not in his presence. Kennedy v. State, 104 So. 449, 139 Miss. 579. It is immaterial whether the officer knew the grade of the offense or not. If he had such knowledge as would constitute probable cause to believe that a felony was being committed, that is to say, that acts amounting to a felony were being committed, or had recently been committed, he may make the arrest, and, having lawful authority to make the arrest, and having probable cause to believe a felony was being committed in the room, he had a right to enter the room by force. Monette v. Toney, 81 So. 593, 119 Miss. 846, 5 A.L.R. 261, and the evidence is admissible.

We think the evidence is sufficient to sustain the conviction. It being shown that the appellant prior to the date on which the offense was committed had knowledge of the relationship existing between Dr. Blocker and his stepdaughter, and that appellant had let them have a room in her house on a prior occasion this was sufficient to establish appellant's knowledge of the felony and participation therein. It was permissible to introduce the evidence for the purpose of proving the necessary knowledge of the relationship existing between Dr. Blocker and his stepdaughter, and that appellant, having such knowledge in letting a room to Dr. Blocker for such purposes, thereby participated in the crime.

At the conclusion of the evidence the defendant moved the court to require the state to elect on which offense it would proceed, which motion was by the court overruled and exception taken thereto.

There is no authority under any statute called to our attention or which we have been able to find authorizing the state to introduce more than one offense to go to the jury, with evidence of more than one offense in so far as the crime of incest is concerned, and it is doubtful whether a statute could authorize the submitting to the jury of more than one offense in the same trial. In other words, we think that the court should have required the state to elect on which offense the state would try the appellant.

The rule is stated in King v. State, 6 So. 188, 66 Miss. 502, as follows:

"Where there are several offenses, for either of which the accused may be convicted under the indictment, the prosecution should elect the offense which it will pursue, and the testimony should be confined to that offense, unless the case falls within some of the exceptions which render the proof of other distinct offenses admissible."

In the opinion in this case Judge ARNOLD pointed out the evils that would flow from such a practice in graphic language, wherein it was shown that one juror might be convinced that the defendant was guilty of some particular one of the offenses and of none other, while another juror might think another one of the offenses was committed and not the one which the other juror thought had been committed, and thus all might agree to a conviction, and yet no two jurors be agreed upon any one offense. The law requires the unanimous verdict of twelve jurors to the same offense, and it was error for the court to refuse to require the state to elect which offense it should rely upon and to confine the jury to that offense.

In the instructions the defendant sought to confine the jury to the date of the arrest November 27, 1922, and among other instructions requested instruction No. 5, which reads as follows:

"The court further instructs the jury for the defendant that, although you may believe from the evidence that Hope Blocker and Lottie May Shotwell on November 27, 1922, went to the house of Mary Love, and there removed their clothes, and got in bed together, you must find the defendant not guilty, unless you further believe that while there on that day, they actually performed the act of sexual intercourse, and it is not sufficient for you to believe they were in bed together, or that they were preparing to commit, or were in the act, but you must believe from the evidence that they had, sexual intercourse, and, further, although you may believe all of the foregoing facts, you must believe that the defendant was present, aiding or abetting in the act, or counseled, procured, or commanded the same."

The court modified this instruction by adding after the words "unless you further believe that while there on that day" the following words, "or prior thereto," making the instruction read, "Unless you further believe that, while there on that day, or prior thereto," etc. This instruction the defendant refused to use as modified and excepted to the modification by the court. Other instructions were modified in like manner so as to give the jury the idea that, if they believed the offense occurred on November 27, 1922, or at any time prior thereto, they might convict.

We think it was error for the court to have modified the instructions so as to cover other days than one. The offense is complete by one act in this kind of a case. Each separate act constitutes a separate offense. It only needs one act to make a complete offense.

For the errors indicated, the case must be reversed and remanded.

Reversed and remanded.