I cannot bring myself to agree with the conclusions reached by the majority of this court herein, for the reason that I think this record shows beyond dispute that the accused was lawfully under arrest at the time he shot to death Honeycutt, a private citizen, who had arrested him for the crime of petit larceny committed, as I think, in his presence.
The statement made by the defendant, who was the *Page 188 only eye-witness, except his victim, at the time of and before the homicide, including the time of arrest, demonstrates that he was lawfully arrested. While the accused was on the witness stand, he was asked these questions by his counsel:
"Q. Tell about what you did from the time you crossed the railroad there at the garment plant until you saw a man down there? A. After I crossed the railroad at the garment plant I started on down the road. I went out in the watermelon patch, got a melon, went on down the road and hid behind a tree, as I got around side of it he walked out from behind the tree, asked where did I get that melon from. I told him I got it up there in the patch. He asked me to come go with him show him where I got that melon from. I goes on back up the road with him, showed him where I got it. He told me, `Come on, I am going to have you arrested.'
"Q. Did you have the watermelon then? A. Yes, sir.
"Q. Did you know this man? A. No, sir.
"Q. What, if anything, did he have? A. He had a gun in his hand."
After pointing out the place where he got the watermelon, according to the statement of the accused, they went a short distance across the said road to a garment plant, where Honeycutt, with his pistol in his hand, requested Godfrey, a night watchman at the plant, to telephone for an officer to come out and get Oscar Walker. Godfrey testified as follows: "Q. Did he (meaning Honeycutt) tell you what Oscar had been doing? A. He told me he had stole a watermelon out of his patch."
When this statement is considered in connection with the fact that the accused testified that while he was in the watermelon patch stealing the melon he saw Honeycutt out there — I think this is a voice from the grave, speaking in thunder tones that the crime was committed in his presence, even if the first caption constituted a complete crime necessary to be known then and there by the deceased in his presence, that is, severing the *Page 189 watermelon from the vine and removing it from the ground constituted a declaration of the deceased that he saw with his eyes the crime so limited committed. It was a statement of a fact relevant to the issue here under review. At the time the accused came in contact with Honeycutt at the tree, there was no arrest, no force employed. Honeycutt had a pistol, but the record does not disclose how he was carrying it. The appellant had a pistol which was evidently concealed. It is just about as reasonable to say that the accused forced Honeycutt to go with him to the watermelon patch as the other deduction, which is found in the statement of this court. Oscar Walker's statement is that Honeycutt asked him to go with him and show him where he got the melon. That is every line in the record indicating any force. After they went to the watermelon patch, Honeycutt gave the peremptory order to the accused to "come on, I am going to have you arrested;" and on the way to the factory, the accused offered to pay for the watermelon.
I am of the opinion that the caption was continuing when the deceased came upon the accused trying to hide behind a tree with a watermelon in his arms, that the asportation was a continuing one; and no question could be raised but at that moment when they first came in contact with each other that the crime of petit larceny was being committed in the presence of Honeycutt. The theft was admitted then and there, but proved beyond contradiction by the fact that the accused carried the deceased to the patch and showed him the place. I am of the opinion that the original caption in this case was still unbroken when the two parties to this tragedy came in contact with each other, and that the original asportation was yet in progress. If I am correct in this view, then even at the common law Honeycutt was fully justified in making the arrest. Authorities could be cited from other jurisdictions in support of this view, but I am content with resting upon the decisions of this Court, especially Devine v. State, 132 Miss. 492, 96 So. 696; *Page 190 Johnson v. State, 47 Miss. 671; and Watson v. State, 36 Miss. 593. In the Devine case, this court so held in this language:
"The contention of the appellant is that the larceny was complete when Carter and his companion removed the car from the place where it was parked, and that if he thereafter rendered them any assistance in making away with the car he did not thereby become guilty of larceny but became only an accessory after the fact. This contention is without merit for the reason that larceny is a continuous offense and is being committed every moment of the time during which the thief deprives the owner of the stolen property of its possession.
"`The legal possession' of the goods stolen continues in the `true owner; and every moment's continuance of the trespass and felony amounts' in legal consideration to a `new caption and asportation.' Watson v. State, 36 Miss. 593; Johnson v. State,47 Miss. 671; 2 Brill's Cyclopedia Crim. Law, Sec. 758."
The authorities cited in this opinion fully support the text, and it must of necessity be so held. Otherwise, in the case of a larceny which has been committed by A in X county, and the personal property transported to Z county, an indictment could not allege that the crime of larceny had been committed in Z county unless the crime was continuing.
Further, this court held in Williamson v. State, 140 Miss. 841,105 So. 479, that when the officers were searching for liquor being transported in an automobile and came upon an automobile with kegs and a bottle of whisky on the seat thereof, the accused was asked before arrest or search what was in the kegs, and voluntarily replied that it was whisky. A sheriff is authorized to arrest without a warrant, and may seize intoxicating liquor without a warrant.
We may add that the garment factory, the watermelon patch, and the tree where the accused and deceased first met each other, was shown by the evidence of the appellant *Page 191 in this case to have been within eyesight. From the witness stand, he pointed out an object which he then saw as being the distance from the tree to the watermelon patch. The case is then one of confessed theft. The defendant was undoubtedly guilty of petit larceny in the light of the facts here set forth in detail, and he undoubtedly made known that fact to the private citizen who arrested him, and whose act is now said to be unlawful.
The cases cited from our court as supporting the view of the majority are so clearly distinguished as not to call for extensive analysis.
Believing that the evidence in the confession detailed by several witnesses was worthy of belief, I am of the opinion that these extra judicial confessions showed a deliberate cold-blooded killing, and that the jury were warranted in disregarding the testimony of the accused on his plea of self-defense in this case.
As to the facts of the details of the homicide, the State must rely on the confession of the accused, while the appellant, the only living eye-witness of the homicide, made an issue, denied the admission in his confession that he shot first at Honeycutt, and that he had formed the intent to kill Honeycutt before the shooting started.
After denying that part of his confession, he then swore to a case of self-defense; that is, he fired upon Honeycutt after the latter was shooting at him, as he was in the act of escaping by running from Honeycutt.
The jury adopted the view of the State, that he had confessed to the incriminatory facts, as detailed by the State witnesses.
The only way we can reject the confession is to say that the district attorney knowingly proffered perjured evidence to obtain a conviction, because he was present and the confession was made to him. I repudiate the suggestion.
This case should be affirmed.
Smith, C.J., concurs in this dissenting opinion. *Page 192