Powe v. State

• Decision Date: 18 May 1970
• Docket Number: No. 45852,45852
• Citation: 235 So.2d 920
• Parties: Norman Louis POWE v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 920

235 So.2d 920

Norman Louis POWE v. STATE of Mississippi.

No. 45852.

Supreme Court of Mississippi.

May 18, 1970.

Robert E. Arrington, Hattiesburg, for appellant.

A. F. Summer, Atty. Gen., by Guy N. Rogers, Asst. Atty., Gen. and John M. Kinard, Special Asst. Atty. Gen., Jackson, for appellee.

RODGERS, Justice.

The appellant, Norman Louis Powe, was indicted, tried, convicted and sentenced for the crime of burglary in the Circuit Court of Forrest County, Mississippi. He has appealed to this Court and contends on appeal that the trial court should have directed a verdict of not guilty and should not have permitted the introduction in evidence of an alleged confession.

The facts presented by the record are substantially as follows. The burglar alarm system of the Coca-Cola Bottling Company in the city of Hattiesburg, Mississippi, was activated at approximately 9:00 p. m. on August 2, 1968. Police officers who were patrolling in police automobiles were notified that the burglar alarm at the Coca-Cola Bottling Company had been activated. They proceeded to the bottling works building when they discovered that an outer door had been prized open. The officers made an investigation of the surroundings and arrested one Lonnie Keith Lee, found at the back of the bottling plant. The officers took Lee to jail. The officers testified that they then returned to the bottling plant; that they had information that there was a second person involved in the burglary; that he was six feet tall, dark-complexioned; that he had 'dark black hair,' was of medium size, and had a pistol. The officers found an automobile parked on a street behind the Coca-Cola bottling plant. The automobile had Louisiana license plates on it and, upon investigation, the officers ascertained that the automobile did not belong to any of the residents along this street. One of the police officers hid in a flower bed near the automobile. The officer observed a man running away from the wooded area at the rear of the Coca- Cola plant. He saw him stop in some bushes and saw him run toward the automobile, whereupon the officer arrested the defendant. The defendant began to curse as soon as he was arrested. He was taken to police headquarters where he was advised of his constitutional rights. Defendant later confessed to having burglarized the Coca-Cola bottling plant.

The only issue in this case, as we see it, is whether or not the officers had probable cause to arrest the defendant at the time he was apprehended because, if he were being properly held in custody, his confession was properly admitted into evidence because the evidence shows that he was given warning of his constitutional rights. Miranda v. Arizona, 384 U. S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Moreover, the record shows that his confession was voluntarily made. See: Westover v. United States, the companion case to Miranda, supra.

The first paragraph of Section 2470, Mississippi Code 1942 Annotated (Supp.1968), is in the following language:

'An officer or private person may arrest any person without warrant, for an indictable offense committed, or a breach of the peace threatened or attempted in his presence; or when a person has committed a felony, though not in his presence; or when a felony has been committed, and he has reasonable ground to suspect and believe the person proposed to be arrested to have committed it; or on a charge, made upon reasonable cause, of the commission of a felony by the party proposed to be arrested. And in all cases of arrests without warrant, the person making such arrest must inform the accused of the object and cause of the arrest, except when he is in the actual commission of the offense, or is arrested on pursuit.'

In the instant case the testimony shows that the crime of burglary had been committed. Section 2043, Mississippi Code 1942 Annotated (Supp.1968). The arresting officers had knowledge of the crime because they had been to the burglarized building. Moreover, they had apprehended one of the burglars. They testified (without objection) that they had information of the description of a second person involved in the burglary. Their investigation led to the discovery of an automobile with a Louisiana license parked on a street behind the burglarized building. A further investigation revealed that it was not owned by persons in the neighborhood. An officer waiting near the automobile saw a person running toward the automobile from the direction of the burglarized Coca-Cola plant. He looked like the person whose description had been given to the officers.

At this point there can be no question that 'a felony (had) been committed,' but did the arresting officer have reasonable ground to suspect and believe the person proposed to be arrested to have committed it?

In the case of Orick v. State, 140 Miss. 184, 105 So. 465, 41 A.L.R. 1129 (1925), this Court reviewed the common law authorities, and, quoting from 2 R.C.L., p. 446, said:

"In England, under the common law, sheriffs, justices of the peace, coroners, constables, and watchmen were intrusted with special powers as conservators of the peace, with authority to arrest felons and persons reasonably suspected of being felons. Whenever a charge of felony was brought to their notice, supported by reasonable grounds of suspicion, they were required to apprehend the offenders, or at least to raise hue and cry, under penalty of being indicted for neglect of duty. Conservators of the peace also had the authority to make arrests without warrants in case of a misdemeanor which involved a breach of the peace committed in the presence of the officer making the arrest. The right to dispense with warrants in these instances probably had its origin in the necessity of preventing the...