Hubbard v. State

• Decision Date: 02 June 1947
• Docket Number: 36457.
• Citation: 202 Miss. 229,30 So.2d 901
• Court: Mississippi Supreme Court
• Parties: HUBBARD v. STATE.

30 So.2d 901

202 Miss. 229

HUBBARD v. STATE.

No. 36457.

Supreme Court of Mississippi

June 2, 1947

Edwards & Edwards, of Mendenhall, and Dixon Pyle, of Jackson, for appellant.

Greek L. Rice, Atty. Gen., and Geo. H. Ethridge Asst. Atty. Gen., for appellee.

GRIFFITH, Presiding Justice.

The evidence in this case is in all material respects substantially the same as that in W. O. Craft v. State Miss., 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 present 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 a 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, § 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...