Love v. State

• Citation: 142 Miss. 602,107 So. 667
• Decision Date: 05 April 1926
• Docket Number: 25079
• Court: United States State Supreme Court of Mississippi
• Parties: LOVE v. STATE. [*]

107 So. 667

142 Miss. 602

LOVE v. STATE. ^[*]

No. 25079

Supreme Court of Mississippi

April 5, 1926

Division B

1 ARREST. Criminal law. Public officer, having information amounting to probable cause to believe that felony is being committed in house or residence, or has recently been committed, and reasonably believing guilty persons to be secreted in house, may without warrant, enter building and make arrest, and, if demand for entrance is ignored, may break open door; evidence obtained by public officer by making arrest, or found on entering house to arrest, on information amounting to probable cause to believe that felony is being committed therein, or has recently been committed, may be used in evidence on prosecution of owner for participating in crime.

Where a public officer has information amounting to probable cause that a felony is being committed in a house or residence, or has recently been committed, and he reasonably believes the guilty persons are secreted in a house such officer may without a warrant, enter the building and make the arrest. Where he makes demand for entrance, and such demand is ignored, he may break open the door; and the evidence obtained by making such arrest, or found on entering the house in pursuance of the design to arrest, may be used in evidence on the prosecution of the owner for participating in the crime.

2 INCEST. Evidence held sufficient to sustain conviction as accessory before fact.

The evidence in this case examined, and held sufficient to sustain a conviction of the defendant as an accessory before the fact.

3. CRIMINAL LAW. Where state offers evidence of more than one offense under single count in indictment for incest, overruling motion to require state to elect upon which offense it will proceed is reversible error.

In a prosecution for incest, where the state offers evidence under a single count in the indictment of more than one offense, the court should require the state to elect upon which offense it will proceed, and it is reversible error to overrule a motion in such case to require the state to elect.

4. CRIMINAL LAW. In prosecution for incest, where state, by eyewitness, proved offense of date of arrest, which date was positively testified to, accused was entitled to instruction that jury must find that offense was committed on date shown in proof, and, where there was evidence of more than one offense, court could not modify instruction so as to tell jury they must believe offense was committed on such date "or prior thereto."

In a prosecution for incest, where the state proved by an eyewitness the offense of the date of the arrest, the date testified to positively in the evidence, the defendant is entitled to an instruction telling the jury that they must find from the evidence that the offense was committed on the date shown in the proof, and, where there is evidence of more than one offense, the court may not modify the instruction so as to tell the jury they must believe the offense committed on the date mentioned in the testimony "or prior thereto." The defendant can only be tried for one offense at a time.

HON. W. A. ALCORN, JR., Judge.

APPEAL from circuit court of Coahoma county, HON. W. A. ALCORN, JR., Judge.

Mary Love was convicted of incest as an accessory before the fact, and she appeals. Reversed and remanded.

Case reversed and remanded.

Roberson, Yerger & Cook, for appellant.

I. The first question is the competency of the testimony of the witness Knight, in the light of section 23 of our constitution. It is uncontradicted that the evidence of the witness Knight was obtained by breaking into the home of the defendant at a time when he was not armed with a search warrant or with any other process of the law authorizing him in anywise to enter therein. We had thought that since 1921 this question had been set at rest by the decisions of this court. Tucker v. State, 128 Miss. 211, 90 So. 845, 24 A. L. R. 1377; State v. Patterson, 95 So. 96, 130 Miss. 680; Smith v. State, 133 Miss. 730, 98 So. 344; Falkner v. State, 98 So. 691; Lee v. City of Oxford, 99 So. 509; Lucas v. City of Oxford, 99 So. 510.

In the case at bar, not only did the witness Knight fail to prove that he had probable cause, or any cause for that matter, to make a search of the appellant's home; but, on the other hand, demonstrated, we think, sufficiently that he had no cause whatsoever for this unreasonable search of the appellant's premises.

II. Testimony of the witness Hitch as to conversation between him and Blocker, out of presence of the defendant, incompetent. It will be observed that this defendant and Blocker were not jointly indicted or jointly prosecuted, and it was not shown by any evidence that the defendant and Blocker conspired to commit the crime charged. The admission of this testimony was manifestly prejudicial to the defendant for the reason that it led the jury to believe that Blocker was conscious of the guilt of some crime.

III. The trial court erred in modifying instruction number five asked by the defendant. This instruction was modified by the court by inserting after the words "on November 27, 1922," the following words: "or prior to this date." The modification of this instruction was manifest error because the jury was told thereby that if it believed that Blocker and Lottie May Shotwell had ever had sexual intercourse, then this defendant might be convicted as an accessory to such criminal act. The court will note that there was no evidence whatsoever before the jury as to the commission of sexual intercourse by Blocker and Lottie May Shotwell, except on November 27, 1922.

We submit that the modification by the court of the instructions mentioned and the refusal by the court of the other instructions mentioned constitute reversible error in this case.

J. A. Lauderdale, Assistant Attorney-General, for the state.

I. Counsel assigns as error the action of the court below in permitting the witness Hitch to testify concerning a conversation which he and Hope Blocker had, such conversation being out of the presence of the defendant.

In order to sustain a conviction in this case it was necessary for the state to prove beyond a reasonable doubt that Hope Blocker and his stepdaughter, Lottie May Shotwell, had committed the crime of incest. (This conversation between Blocker and the witness Hitch tended to prove that Blocker was guilty; and it was, therefore, competent for the purpose of proving his guilt, and his guilt was a material fact to establish the guilt of appellant here.

II. Witness Knight testified that he was a policeman in the city of Clarksdale and this search by him of the home of Mary Love was made without a search warrant for so doing; that the home was situated in Clarksdale. In other words, the home was broken and entered by an officer of the law without a proper and legal search warrant for so doing and the testimony secured by said search was admitted on the trial of this cause on the part of the state over the objection of the defendant.

In the Kennedy case, 104 So. 449, this court held that where an officer had credible information which he believed to be true that a felony had been, or was being committed, he had a right to go upon the premises without a warrant and arrest the party alleged to be guilty of crime, and that the testimony secured at that time when the officer was lawfully there for the purpose of making an arrest was admissible on the trial of the cause. This officer says that he had information that this crime was being committed by these parties at the home of Mary Love; he also says that he obtained this information at the time, or just prior to the time he made the search, from one Lillie Young; that she told him a couple, or a man and a woman were in the house; that she did not know who they were; that a truck was near the house; that he knew this truck belonged to Blocker, and this was information that he had that a felony was being committed.

III. Instruction number five requested by appellant was modified by the court. The instruction as requested required the jury to believe that the crime of incest was committed by Hope Blocker and Lottie May Shotwell on November 27, 1922, before they would be warranted in convicting the defendant. The court modified this instruction to read "on November 27, 1922, or prior thereto." This instruction as modified is probably erroneous because it requires the jury to convict if they believed the crime was committed on a certain date "or prior thereto." A prosecution for incest is barred by the statute of limitations unless such prosecution is begun within two years after the crime is committed. The modification of this instruction probably made it erroneous because it did not limit the date to within two years prior to said date. However, in the case at bar none of the testimony went back as far as two years, and the jury had absolutely no evidence of any crime being committed more than two years prior to the date that prosecution was begun and this error if any was not harmful to the defendant.

Argued orally by Sam Cook, for appellant, and J. A. Lauderdale, Assistant Attorney-General, for the state.

OPINION

ETHRIDGE, J.

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...