Volume 214 — Mississippi Reports

1. <bold>Sheriffs — arrest — fugitive misdemeanant.</bold> A sheriff and the sureties on his official bond are liable in a civil action for damages arising from the intentional or negligent shooting of a misdemeanant who flees to avoid arrest. 2. <bold>Sheriffs — arrest — fugitive misdemeanant.</bold> A sheriff owes to a fugitive misdemeanant the duty to exercise care and precaution not to injure him, and he must not intentionally shoot a fugitive misdemeanant, nor must he discharge a firearm while in pursuit in such manner as to cause injury to the fugitive. 3. <bold>Arrests — misdemeanant — limitation upon use of physical</bold> <bold>force.</bold> In arresting or preventing the escape of a misdemeanant, an officer may exert such physical force as is necessary to effect the arrest by overcoming the resistance he encounters, but he cannot take the life of the accused or inflict great bodily harm<page_number>Page 2</page_number> upon him except to save his own life or to prevent like harm to himself. 4. <bold>Homicide — repelling attack of unarmed man.</bold> One may not ordinarily repel the attack of an unarmed man, not his superior in physical power, by killing him because in such case the attack of one upon the other without a deadly weapon furnishes to the one attacked no reasonable ground to anticipate danger to life or the infliction of great bodily harm. 5. <bold>Homicide — not justified, when.</bold> A killing may not be justified on account of apprehension which is reasonably no more than that some minor battery might be inflicted upon the person who does the killing. 6. <bold>Arrest — shooting misdemeanant — liability for damages.</bold> Where the sheriff in attempting to arrest an unarmed misdemeanant, intentionally shot him and there was no evidence of such disparity in size and physical strength between the misdemeanant and the sheriff as warranted the sheriff in reasonably anticipating great bodily harm or death at the hands of the misdemeanant, he was liable for the compensatory damages resulting therefrom and a requested peremptory charge to that effect should have been given. Headnotes as revised by Holmes, J. <center> <bold>On Suggestion of Error</bold></center> 7. <bold>Arrest — disparity in physical strength.</bold> The officer may act upon reasonable appearances and it is not necessary that he shall first engage in physical combat with the misdemeanant to determine the disparity in size and physical strength between them, but the danger of death or great bodily harm because of such disparity must be reasonably apparent to the officer and the justification, upon such grounds, of the use of firearms must be supported by proof. 8. <bold>Arrest — aggressor.</bold> Because an officer in making an arrest must of necessity be the aggressor, he cannot be deprived of the right of self-defense merely because he is the aggressor, but he is still not justified in using firearms to repel the attack of an unarmed misdemeanant not his superior in physical strength and power. Headnotes as approved by McGehee, C.J.

1. <bold>False imprisonment — no cause of action — case in point.</bold> A cafe owner had been requested by a druggist to keep a watch for a described man who had given the druggist a bad check, and the cafe owner telephoned that a man of that description was then in the cafe. The druggist requested a police officer<page_number>Page 88</page_number> to go to the cafe in company with the employee of the druggist to whom the check was given to see whether the man was the person being sought, but without any directions or request or suggestion that the person if identified be arrested. On arrival at the cafe and upon the identification of the person, and without authority or direction of the druggist, but because of the person's conduct in refusing to give information and using profanity he was arrested and taken to jail: Held, that the druggist was not liable to an action for false imprisonment. 2. <bold>False imprisonment — liability for false imprisonment.</bold> To be liable for false imprisonment one must have personally and actively participated therein directly or by indirect procurement, and he is not liable for an arrest made by an officer on the officer's own responsibility and for reasons of his own without the procurement, knowledge or consent of the person charged in an action of unlawful imprisonment. Headnotes as revised by Holmes, J.

1. <bold>Landlord and tenant — tenant's term to expire at fixed time —</bold> <bold>notice to quit.</bold> When the rental term is to expire at a fixed time, notice to the tenant to quit is not necessary. 2. <bold>Landlord and tenant — adverse title.</bold> A tenant cannot assert title adverse to his landlord, including title by adverse possession. 3. <bold>Landlord and tenant — unlawful entry and detainer —</bold> <bold>limitation of actions.</bold> Where the tenant's term under his rental contract expired on a fixed date the landlord had one year from the fixed date within which to bring his action of unlawful entry and detainer. Sec. 1033 Code 1942. 4. <bold>Unlawful entry and detainer — judgment — description of</bold> <bold>premises.</bold> The record in an action of unlawful entry and detainer must be so certain that the sheriff in executing the judgment could go on the land from the description there to be seen and he cannot act on inquiry dehors the record.<page_number>Page 254</page_number> 5. <bold>Unlawful entry and detainer — description of land —</bold> <bold>uncertainty.</bold> The description of the land in the record and the judgment in an action of unlawful entry and detainer "as a fractional part of the NE 1/4 of Sec. 36, T. 7, R. 4 W containing 75 acres more or less", is so indefinite and uncertain as to be void. Headnotes as approved by Holmes, J.

1. <bold>Evidence — excluded on objections, objector may not introduce</bold> <bold>evidence on same matter.</bold> Where evidence on a particular matter offered by one party has been excluded, even if improperly, on the objection of the adverse party, the latter may not introduce evidence with respect to the same matter; so that where the beneficiary in a will had testified that the testator was of sound mind at the time of the execution of the instrument, and this testimony was excluded on the motion of the contestants, the latter were precluded from offering testimony to the effect that the beneficiary had previously made statements that the testator was mentally incapable of transacting his own business and affairs. Headnote as approved by Holmes, J.