I think it was reversible error for the court below to refuse to permit the circumstances under which the arrest of the appellant was made to be shown in evidence. The opinion in chief concedes that it was error, but holds that it was not reversible error. *Page 675
It is admitted that the officer had no warrant for the arrest of the appellant, and, that being true, the state should have justified the arrest by proving that the felony had actually been committed, and that there was probable cause for the officer to believe that the defendant was the person who committed that felony.
When one person undertakes to arrest another without a warrant for so doing having been issued by the proper officer, he must justify his action in making the arrest by showing a compliance with the law authorizing arrest without a warrant. Section 1265, Hemingway's Code of 1927 (section 1447, Code of 1906) provides that: "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 arrest 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."
Under the statute, it is not sufficient for the officer to believe that a felony has been committed, and that the person to be arrested committed the felony; but the proof must show that the felony was actually committed, and that there was probable cause to believe that the person proposed to be arrested committed that felony. The officer's judgment as to the probable cause is not conclusive, but it is a judicial question for the court to determine from the facts and information upon which the officer acted, when the evidence in regard to the arrest is offered. The right of a citizen to be shielded from *Page 676 arrest, except when authorized by law, is one of his most necessary and valued rights. Section 23 of the Constitution, in what is known as "The Bill of Rights" of the Constitution, was placed there for the purpose of preventing unjust and unwarranted seizures of the person or property of a citizen, or of a search of his person or property, except under the conditions named in said section. This section has been construed in the light of the common law, and it has been adjudged that the section prohibits all arrests which were unlawful at the common law. A person was not subject to arrest on the mere suspicion that a felony had been committed, or from the mere belief that it had been committed; but to justify the arrest there must be a felony committed, or there must be a criminal offense committed in the presence of the officer. If the felony had actually been committed, the officer could not arrest a person suspected of the commission of a felony, unless the facts and circumstances were such as to lead a reasonably prudent man to believe that he had done so; and where he arrested without a warrant, the lawfulness of the arrest depended upon the judicial finding that the proof was sufficient to warrant the officer in so believing.
It is true that the appellant had been arrested without a warrant before the commission of the offense for which he was indicted, and at the time the offense was committed he was in prison; but the officers had gone into the prison, and were there undertaking, without a search warrant, and without a warrant of any kind authorizing them so to do, to search the person of the defendant. If this search was unlawful, then the defendant had a right to resist it, and to use such force as was necessary to prevent the search being made; and if he misjudged the necessity, this would not render him guilty of murder, but of manslaughter only. There is nothing in the record to show a compliance with the law on this subject, and the act of the officer, as disclosed by the *Page 677 evidence, in the absence of such justification, was an assault and battery upon the appellant.
In 2 R.C.L., p. 525, under heading "Definitions," we find the following definition of a battery: "A battery is the unlawful touching of the person of another by the aggressor himself or by any substance put in motion by him. A battery has in some instances been defined by statute to be any unlawful and willful use of force or violence on the person of another. The slightest unlawful touching of the person of another is a battery, for the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage, as every man's person is sacred and no other has the right to touch it."
Section 1268, Hemingway's Code of 1927 (section 1450, Code of 1906), provides: "Every person making an arrest shall take the offender before the proper officer without unnecessary delay for examination of his case."
It was the duty of the officer in the present case immediately upon making the arrest to carry the prisoner to a justice of the peace, or to some other authorized officer, and make the necessary affidavit against him, and procure a warrant to admit him to the county jail. This appears not to have been done; consequently, the appellant was in the jail unlawfully, and the officer's right to search his person did not exist, because of his unlawful arrest and detention.
It is not true that, because a person submits to the initial unlawful act in making the arrest, he loses his right to resist a search made, or attempted to be made, after such time, and after he has been placed in jail. He has the right at any time, when unlawfully arrested, to use reasonable force to regain his liberty; and when the state's evidence was offered it was necessary to justify what was done by the officer, in order to make the proposed search lawful; and if it was not lawful, it certainly comes squarely within the provisions of section 1016, *Page 678 Hemingway's Code of 1927 (section 1237, Code of 1906), set out in full in the court's opinion on the subject.
The soundness of the views expressed above are further borne out by the provisions of section 3304, Hemingway's Code of 1927 (section 4681, Code of 1906), which provides that: "It shall be the duty of every sheriff to keep a well-bound book, to be called the `Jail-docket,' in which he shall note each warrant ormittimus by which any person shall be received into or placed in the jail of his county, entering the nature of the writ or warrant, by whom issued, the name of the prisoner, when received, the date of the arrest and commitment, for what crime or other cause the party is imprisoned, and on what authority;" etc. This section, construed with the preceding one, clearly shows that before a person can be legally placed in jail, there must be a warrant or mittimus issued justifying his commitment.
It appears to me that this case comes squarely within the principles of the decision of this court in Williams v.State, 122 Miss. 151, 84 So. 8. In that case, when the cause was first considered, the judges of this court were equally divided as to whether the judgment should be reversed, the affirming judges holding that the facts there involved made it a question for the jury as to whether the killing by such person was unnecessary; but on a suggestion of error being filed, one of the original affirming judges, after a careful study of the facts and the law, changed his mind, and concurred in the opinion originally written by Judge HOLDEN, in which the law of the offense, and the effect of section 1237, Code of 1906, supra, was discussed, and the conclusion reached that the offense could not be greater than manslaughter. It is true, in that case the officer searched the defendant, and, not finding the pistol for which they were searching, and which they believed he had, administered to him a whipping, to avoid which the defendant agreed to go and point out where the pistol was, but on the way to the place where he *Page 679 stated it to be he pulled the pistol from his person and fired, killing one of the officers.
The authorities bearing upon section 1016, Hemingway's Code of 1927 (section 1237, Code of 1906) set forth in Judge HOLDEN'S opinion in that case, sustained the conclusions therein reached — the principles of which I think should be applied in this case. See the authorities therein cited, especially Cryer v. State,71 Miss. 467, 14 So. 261, 42 Am. St. Rep. 473.
In Williams v. State, 127 Miss. 851, 90 So. 705, a different case from the one above cited, it was held by the court that: "A felonious homicide is `manslaughter,' and not murder, first, when the defendant killed the deceased either in the heat of passion, without malice, by the use of a deadly weapon, without authority of law, and not in necessary self-defense, or, second, when the defendant killed the deceased without malice, under the bona-fide belief, without reasonable cause therefor, that it was necessary for him so to do in order to prevent the deceased from inflicting death or great bodily harm upon him, or, third, when the defendant unnecessarily killed the deceased while resisting an attempt by the deceased to commit a crime."
It was also held that: "When it appears from the evidence in a trial for murder that the defendant killed the deceased in resisting an attempt by the deceased to commit a crime, it is error to refuse an instruction requested by the defendant directing the jury not to convict him of the crime of murder."
Other authorities are referred to in the various opinions in this case.
It seems to me that these cases conclusively settle the principle that if the officer was acting unlawfully at the time of the killing, and his act amounted to a crime upon the defendant, the killing could not amount to more than manslaughter, and would amount to manslaughter only *Page 680 if it were unnecessary to kill in order to protect and secure the rights of the defendant.
It appears, as I think, from the state's testimony, that the act of the officer at the time of the killing was unlawful and criminal. The fact that the shot went wild and killed the bystander and assistant of the officer does not change the character of the killing. The crime of killing an assistant or a bystander would have the same effect in law as would be the case had the shot killed the officer. Consequently, the instructions on manslaughter requested, as set out in the opinion in chief, should have been given, and not refused.
The prevailing opinion relies upon McPhay v. State,87 Miss. 456, 40 So. 17, for its conclusion that the defendant was bound by his own version of the killing — that he is bound by his testimony to the effect that he did not fire the shot intentionally, but that it was the result of accident, while attempting to hide the pistol from the officer.
I do not think this case is any authority for that proposition whatever. In that case the state, in its testimony, did not make a case from which any conclusion of unlawful arrest could be reached. I think a defendant has a right to avail himself of any defense possible from the state's evidence, regardless of his own theory or his own testimony. It is true, the jury may disregard the defendant's testimony and his theory of the case, where there is a conflict in the evidence, and adopt that of the state; but when it does so, the defendant is entitled to avail himself of every theory in the state's evidence that would reduce the degree of the crime, and is entitled to have the jury consider those theories under appropriate instructions, stating the law applicable thereto.
In the McPhay case, supra, the statement of the facts shows that the testimony introduced by the state was to the effect that the deceased, McMorris, a policeman of the town of Summit, was waylaid and shot in the back *Page 681 by appellant, while riding at night on a bicycle in the streets of the town and unaware of the presence of appellant, the shot entering just under the shoulder blade. Therefore, the state's theory in that case left no probability of manslaughter. The statement of facts further tends to show that the appellant in that case did not see the deceased until he jumped from his bicycle and drew a pistol on him, and fired to protect himself; that the appellant did not know until he fired who the deceased was, but thought he was one Saulsbury, an enemy who had previously made threats against him.
There is not a hint in the statement of the case that any unlawful arrest was attempted in that case. Neither the state nor the defendant made a case in which there was any theory of arrest, lawful or unlawful; neither thought that an arrest was being made, or that search was being made; and therefore there was no evidence upon which to build an argument of the rights involved in resisting arrest, and the court properly disregarded the argument in the brief, which sought to advance the theory of manslaughter while resisting unlawful arrest. What the court says in an opinion is always to be considered in the light of the facts of the case before it. The court said in the opinion, in reference to this: "It is, however, not necessary for us to enter upon any consideration of the accuracy of the legal proposition invoked, because, conceding its abstract soundness, it is not controlling in the instant case. According to the story of appellant, the homicide was committed, not in resisting unlawful arrest, but in his own absolutely necessary self-defense."
It is clearly apparent, therefore, from this opinion, that, so far as the evidence was concerned, there was nothing whatever to support any theory of a killing to resist unlawful arrest; and the court properly refused to consider the law on that subject, in a case to which it was not applicable. *Page 682
In the case before us, the evidence of the state itself shows a hypothesis that the killing was manslaughter, and the defendant was clearly entitled to have the law on that subject announced, and the three instructions set out in the prevailing opinion should have been given. The state's own evidence presents the hypothesis upon which such instructions should have been given, by failing to prove that the defendant was lawfully arrested, and, therefore, under the lawful duty to submit to the search attempted to be made at the time.
Furthermore, there was evidence in the record from which the jury could reasonably infer that the officer, Oliver, assaulted the appellant with his club or "billy" to make him submit to the search, to which, under the facts before us, he was not legally compelled to submit.
In the Williams case, supra, the defense is that appellant was resisting an attempt to kill him, and that he was acting in self-defense. The jury disregarded his plea of self-defense, and convicted him of murder; but the court held that he was entitled to avail himself of the hypothesis of manslaughter shown by the evidence for the state, as well as for the defense.
The law does not desire a wrongful conviction of any man. It is the policy of the law for him to receive the benefit of any theory in the evidence, either by the state or the defense, which would either acquit him of the crime or reduce the crime below the degree of that charged in the indictment.
Because of the errors indicated, I think the judgment of conviction should be reversed, and the cause remanded for a new trial, in which the facts bearing on the arrest and search may be fully inquired into; and after such inquiry should be submitted to the jury on appropriate instructions.
Judges GRIFFITH and ANDERSON concur in this opinion. *Page 683