Hurst v. State

• Decision Date: 12 October 1970
• Docket Number: No. 45917,45917
• Citation: 240 So.2d 273
• Parties: Clitton HURST v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 273

240 So.2d 273

Clitton HURST v. STATE of Mississippi.

No. 45917.

Supreme Court of Mississippi.

Oct. 12, 1970.

Rehearing Denied Nov. 9, 1970.

R. Jess Brown, Jack H. Young, Jr., Jackson, for appellant.

A. F. Summer, Atty. Gen., by Guy N. Rogers, Asst. Atty. Gen., and Timmie Hancock, Special Asst. Atty. Gen., Jackson, for appellee.

RODGERS, Justice:

The appellant, Clifton Hurst, was tried and convicted in the Circuit Court of Forrest County, Mississippi, of the crime of using profane and indecent language over the telephone. He was sentenced to serve a term of two years in the state penitentiary.

Appellant has appealed from the judgment and sentence of the trial court and contends on appeal that the judgment should be reversed for the following reasons: (1) The defendant was not advised of his constitutional right to remain silent before being required to submit to a voice identification test. (2) The telephone call was illegal. (3) The State failed to establish a prima facie case of guilt against the defendant. (4) The verdict of the jury is contrary to the overwhelming weight of the testimony.

The testimony in the record in this case reveals that Mrs. Frank Leland, a resident of Petal in Forrest County, Mississippi, began to receive vulgar and indecent telephone calls the last week in April 1969. The calls continued until May 15 and began again on May 20. The calls were made by the same voice and the prosecuting witness was able to inform the officers that the voice was that of a young male person, who said he was black. The telephone company, by the use of an electrical device known as a diode, was able to hold open the telephone connection so as to be able to trace the origin of the telephone conversation. This method was followed and it was discovered that the message originated at phone number 582-8704, which was listed in the name of Alberta Hurst, 805 Arnold Street in Hattiesburg, Mississippi. The officers, having been notified, went to the home of Alberta Hurst. One of the officers requested permission to use the phone and, being permitted to do so, he picked up the phone and found that he could talk to an officer at the home of Mrs. Frank Leland without dialing the number.

The officer made inquiry as to the occupants of the house, and arrested the defendant. Later, the defendant, after having been advised of his constitutional right to remain silent, requested the officers to permit him to talk to the person accusing him. The officer called Mrs. Frank Leland and gave the phone to the defendant, but after saying 'hello,' he ceased to talk. The officer suggested certain words that had been previously said to mrs. Leland. She recognized his voice as being that of the person who had been calling her.

There is other testimony by employees of the telephone company showing the method and equipment used in tracing a telephone call. However, without detailing the evidence, we are of the opinion that the testimony preponderates in favor of the verdict of the jury. In fact, any other verdict would have been against the weight of the evidence.

The problem here then is whether or not there are any reversible errors shown in the record.

The appellant contends that the defendant was unlawfully arrested and that the officers 'should have had a warrant before walking into appellant's house,' and since the officers arrested appellant without probable cause, he was illegally detained at a time when he was 'commanded to make a call or be hung'; that the telephone voice identification was, therefore, illegally obtained and such evidence was inadmissible before the jury.

The officer contradicted the testimony of the defendant that the officers 'walked into defendant's home.' The officer testified that he knocked upon the door at the house address where telephone number 582-8704 was shown to be stationed and that 'Clifford came to the door. I talked to him for a minute and his mother came ot the door and tole me to come in.' The officer testified that he was granted permission to use the phone and that he picked up the phone and, without dialing numbers, he spoke to the officer, Bob McGee, who was stationed at the home of Mrs. Frank Leland. At that time the officer had information from Mrs. Leland that the person calling her was a young male Negro, and after learning from whence the phone calls were coming, he arrested the only person there meeting the voice and age description of the person doing the telephoning. The argument of the appellant that there were other male persons in the house who could have done the calling was a jury issue as to the guilt of the defendant. It is not the duty of the arresting officer to determine the guilt of a person before making an arrest. It is his duty to make an arrest where a felony has been committed and the officer has 'reasonable ground to suspect and believe the person proposed to be arrested to have committed it.' Section 2470 Mississippi Code 1942 Annotated (Supp.1968); Smith v. State, 229 So.2d 551 (Miss.1969); McCollum v. State, 197 So.2d 252 (Miss.1967); Bradshaw v. State, 192 So.2d 387 (Miss.1966); Shay v. State, 229 Miss. 186, 90 So.2d 209 (1956); Kennedy v. State, 139 Miss. 579, 104 So. 449 (1925). Moreover, the subsequent acquittal of a defendant of the offense charged does not affect the duty of the officer to make the arrest. McMahon v. People, 189 Ill. 222, 59 N.E. 584 (1901).

The right to arrest a person upon a description of the suspect given to the officer by a credible person has long been thoroughly established in this state. See Wheeler v. State, 219 Miss. 129, 63 So.2d 517 (1953).

The United States Supreme Court made a salutary comment in United States v. Santos, 36 Philippine 853, 855, 6 C.J.S. Arrest § 6, at 587, Note 92 (1937), wherein it is said:

'One should, however, not expect too much of an ordinary policeman. He is not presumed to exercise the subtle reasoning of a judicial officer. Often he has no opportunity to make proper investigation but must act in haste on his own belief to prevent the escape of the criminal. To err is human. Even the most conscientious offcer must at times be mislead. If, therefore, under trying circumstances and in a zealous effort to obey the orders of his superior officer and to enforce the law, a peace...