Miers v. State , 34 Tex. Crim. 161 ( 1895 )

This is a conviction for murder of the second degree, with punishment in the penitentiary for the term of twenty-five years. The name of the deceased was Riley Burnett. The statement of facts covers seventy printed pages, when all of the material facts could have been placed in twenty pages. Alf Miers was at the time of homicide living with Mr. Metker, in Dallas County, about fourteen miles northwest of the city of Dallas. Miers was a brother-in-law of Metker. In Shackelford County an indictment was pending against him for burglary. A capias had been sent to and was in the hands of the sheriff of Dallas County (Cabell). On the evening before the homicide, Webb and Bolick (deputy sheriffs of Dallas County), Webb in possession of the capias, saw deceased, Burnett, who was a constable of said Dallas County, and requested him to take the capias and arrest the defendant. Deceased took the capias, but returned it to Webb, stating, that "You might as well have it as I." On the next morning, early, Burnett went to Metker's, and arrested the defendant. When the arrest was made, defendant asked him for what he was arrested. Deceased replied, for burglary in Shackelford County. Defendant asked him if he had any papers. Deceased answered that he had not, and did not need papers. Defendant asked permission to go to the house and get his breakfast, and after some parleying deceased consented to this. The parties went to the house, defendant in the lead, with deceased a few feet behind him. Upon the gallery of the house was lying a Winchester rifle. Defendant stepped over or passed near by the gun, and when deceased reached it, he picked it up and threw a cartridge into the barrel. One witness says that he threw a cartridge out, but this is immaterial. When the deceased picked up the gun and threw a cartridge into the barrel, the defendant, hearing this, ran. The defendant did not run until this was done. But we will let the dying man give the facts attending the homicide. Riley Burnett, the deceased, a very short time after he was shot, gave the following version of the transaction to A.B. Wright. Wright was his friend. They had known each other for twenty years, and had been partners in the cattle business.

The following is the testimony of A.B. Wright: "My name is A.B. Wright, and I knew Riley Burnett in his life-time. I think I knew him twenty years, and I had business relations with him, as we were in the cattle business together, and we were associated as partners. We had been partners three years. I remember the day he was killed. I have known the defendant ever since he was a baby. I have not seen him. (the defendant) for over ten years prior to the homicide till I saw him then. I went over to Metker's house, where Riley Burnett was after the shooting, and saw Mr. Riley Burnett. Riley Burnett made a statement to me as to how this shooting occurred. When I walked up there, I said, 'Riley, are you badly wounded?' and he replied that he was badly wounded. I asked him, 'What made you let Miers go to the house?' and he said that he out-talked him. He said Miers wanted to go to the house, and he said that he was a little too careless with him. He said that when he got to the house, and Miers run in the house, 'I run around the corner of the house, and when I got around to the corner of the house Miers had got to the door. I had my gun to my shoulder, and had it on Miers, when Miers jumped out. I did not think he would shoot me. Miers came out of the house with the gun in his hand.' Riley said he (defendant) threw the guard down, and threw a cartridge into the gun, and he just threw his gun over and shot; and he (Riley) said, 'I held a little too long.' He stated that the defendant just threw the gun over and shot. He stated he ran out of the door, and threw the cartridge in. I do not believe Burnett stated how the defendant shot at him. He said he just run out of the door, and threw a cartridge in it, and just threw the gun over, 'and we both fired at once; I held a little too long.' He said that he had the gun on the defendant as the defendant got out of the door. He said the defendant had just jumped out of the door, and run, and that he hallooed 'Halt!' at him, and that when the defendant jumped out of the door to run he hallooed 'Halt!' Yes, sir; he said something about liberty. He said that Miers said he just wanted his liberty. He said that he did not blame anybody but himself. He said that he could not blame Miers; that if they had a writ for him, that he would try to get away, too. He said he would have done the same thing that Miers had done if he had been in his place."

Now, there is not a line of testimony in conflict with this, the statement of the man who was shot, and soon after died from the wounds inflicted, by appellant. That this story is colored in behalf of appellant is absolutely preposterous. Such an hypothesis is in conflict with our experience, and is against our frail, depraved natures. For Burnett, suffering, yes, dying, from the wounds inflicted by appellant, to tell the plain unvarnished truth, would be to approach that degree of perfection rarely to be found in a man. This homicide was not in prevention of the arrest, which had taken place at the horse lot. That arrest, though illegal, had been submitted to by the appellant. The case before us is one in which a citizen, who has been illegally deprived of his liberty, attempts to regain it, and the trespasser — aggressor — who has in violation of law deprived him of his liberty, attempts by means of a deadly weapon, used in a deadly manner, to prevent him. In this case the man falsely imprisoned did not use or attempt to use a deadly or any kind of weapon to regain his freedom. He had his gun unloaded, down, not presented, and was fleeing, and did not charge his gun until deceased had not only presented but had covered him with his gun, when they shot at each other simultaneously, both receiving, as was then supposed, mortal wounds.

That the arrest was illegal is not questioned. The court so instructed the jury. Being an illegal arrest, what were the rights of the accused under the circumstances? Being without capias in this case, the deceased, a constable, had no right to arrest the appellant, and in making the arrest was a trespasser, and the appellant had the right to resist by force, using no more than was necessary to resist the unlawful acts of the officer. An officer who acts without proper authority, and the person doing the same act who is not an officer, stand on the same footing; and any third person may lawfully interfere to prevent an illegal arrest, doing no more than is necessary for that purpose. West v. Cabell, 153 U.S. 78; Commonwealth v. Crotty, 10 Allen, 404, 405. If deceased, Burnett, had no right to arrest appellant, and if in so doing he was a trespasser, had he the right to retain him in his custody? Does the fact that appellant yielded, without resistance, or without protesting against the trespass, make the arrest legal? Does this fact deprive the man falsely imprisoned of the right to assert his rights and regain his liberty, or convert in some mysterious manner the trespass into a lawful act? The affirmative of these questions has no support in principle or reason. Being wrongfully and illegally deprived of his liberty, appellant had the same right to regain it, and right to use the same means, force, or resistance, as he had in preventing an illegal arrest. Being falsely imprisoned, he had the right to his liberty, and, for the purpose of obtaining it, could use all force necessary for that purpose, taking care to use no more than was required. What degree of violence is necessary always depends upon that used or attempted by his adversary. To illustrate: A is illegally arrested, and attempts to regain his liberty. His adversary proposes to prevent this by the use of deadly weapons. A may resort to such weapons. A flees from such arrest. The officer presents, in a shooting position, his gun, demanding of him to halt. A can shoot, if it reasonably appears to him that the officer will shoot. But if A is unlawfully arrested, and, being in no danger of violence from the officer, resorts immediately to deadly weapons or great violence (that which is unnecessary to secure his liberty), he would not be justified or excused. He would be guilty (if he should slay the officer) of murder in the first degree if he, anticipating the arrest, should prepare himself with a deadly weapon, and deliberately and calmly form the intention to kill the officer. Rex v. Patience, 7 Car. P., 775; Reg. v. Allen, 17 Law Times (N. S.), 222. But, express malice apart, if A should use at once, without first resorting to milder means, greater force or violence than was necessary to obtain his liberty, and should kill the officer, he would be guilty of manslaughter. The illegal arrest being a great provocation, the killing would be attributed to the passion arising therefrom. West v. Cabell, supra, and authorities there cited. In every case in which the defendant is held guilty of manslaughter, he used more or greater violence or force than was necessary to prevent the arrest or regain his liberty. If the accused used no more force than was necessary, he would be guilty of no offense. Let us suppose that the party slain (be he officer or not) was authorized to make the arrest and detain the accused. If he exercises his authority in a wanton and unnecessary manner, he becomes a trespasser, and if by his acts he creates in the mind of the accused a reasonable apprehension or fear of death or great bodily harm, the homicide would be excusable. The State v. Oliver, 2 Houst., 605, 606. If the officer has no authority to arrest, in attempting or making the arrest, he becomes a trespasser, and stands on no better ground than a third party — than if he were not an officer. The arrest being illegal, he has no right to detain the prisoner, and hence no authority to prevent an escape, and in preventing an escape he would still be a trespasser, and stand to the prisoner on the same ground as a private citizen.

All of the above propositions of law are not applicable to this case. Upon the trial in felony cases, the court must give in charge to the jury the law applicable to the case, whether requested to do so or not. What law is applicable to the case is determined by the charge contained in the indictment and the evidence adduced on the trial. To be applicable, it must have support in the evidence; and in determining the law which is applicable, the case must be clearly understood by the judge whose duty it is to apply the law. Law which is applicable to one case of homicide in preventing an illegal arrest, or to effect an escape from such an arrest, may not have any application whatever to the case on trial. Now, then, what is this case? Appellant was illegally arrested, and attempted to regain his liberty. The deceased, who was a trespasser, threw his Winchester upon him, covering him with it. Appellant charged his gun while deceased was covering him, and, he still retreating, deceased, with his gun still in a shooting position, demanded of appellant to halt, when they both shot, shooting at the same time, each receiving wounds, that of deceased's proving mortal. And what is the law applicable to this case? The court should have instructed the jury that the arrest was illegal, and that deceased was a trespasser in making the arrest and detaining the prisoner; that the appellant had the right to regain his liberty, and that deceased had no right to prevent him; and that if deceased, to prevent an escape, threw his gun upon him, commanding him to halt, and that appellant, believing that his life was in danger, or that he was in danger of serious bodily injury, shot and killed the deceased, to acquit him. Was manslaughter in this case? It was not. Why? The arrest and detention were unlawful. Did appellant use more force than was necessary? He did not; for nothing less than the most effectual means could have sufficed, and in this case appellant's life was not saved by his prompt action, with a deadly weapon — that is, by the shot — but because the ball from deceased's gun struck appellant's gun, and was no doubt somewhat deflected. Did he shoot too quick? He did not shoot soon enough. Before the deceased threw his gun to his shoulder, and pointed it at appellant, had he done or said anything which was calculated to induce deceased to believe that he intended to shoot him, or inflict upon him the slightest degree of violence? He had not. He said, "I just want my liberty," running at the time. He was entitled to his freedom, and had the right to say so. He had the right to run, and was doing so. Was murder of the first degree in this case? It was not. There is not the slightest testimony in this record tending to prove that appellant had prepared arms in anticipation of arrest, and had deliberately and calmly determined to kill the officer. When arrested, appellant was unarmed. The Winchester on the gallery did not belong to him. He, when he could have done so, did not touch the gun. Deceased picked it up, and threw a load into the barrel, and with this gun shot appellant.

But concede, for the argument, that appellant had been breathing out threats of the most deadly character against any and all officers who might attempt to arrest him legally or without authority, such proof could not have had the slightest bearing upon this case, when considered in the light of the facts attending this homicide. Neither was murder in the second degree in this case. Why? (1) Because the killing was without malice; (2) because the killing was permitted by law in the necessary defense of the life of the appellant. We have given the statement of facts a most careful examination, and if there is any testimony in the record which places the appellant in the wrong in any respect, we have not perceived it. He may have been guilty of burglary in Shackelford County, but until tried and convicted, the law presumes him innocent of that charge.

Over the objections of counsel for appellant, the court permitted the State to introduce in evidence the capias from Shackelford County for burglary in that county. The State, over the objection of the appellant, proved that Riley Burnett was a good man. The State, over the objections of the appellant, proved by Wright, that a short time before the homicide he had told deceased, "You have a pretty bad man to arrest; that they would all shoot." (1) Riley Burnett was not on trial. (2) The arrest was unlawful. The capias was not admissible, and served no legitimate purpose in this case, but would present the appellant to the jury as a felon — a burglar. What Wright stated to the deceased was not competent. Deceased had no right to attempt the arrest. That the deceased was a good man had nothing to do with this.

The court instructed the jury upon self-defense properly, but added the following: "And in this connection you are further told, that if you find that Burnett first, assaulted defendant by drawing his gun to fire, and not to halt defendant, then the law presumes that he intended to inflict serious bodily injury or to kill the defendant." But suppose he drew his gun (which he never did), pointed it at the defendant, and called for him to halt, intending evidently to kill him if he did not halt, what would the law presume then? The law would make no presumption, because none would be needed, especially when deceased unlawfully shot the defendant. The charge was wrong. It was calculated, when considered in connection with the statement made by deceased to Wright, to induce the jury to believe, that if deceased's intention was to rearrest the appellant, he had the right to do so. That it was the intention of the court to convey this idea is evident from the following charge: "You are further instructed, that if you believe from the evidence that the defendant, Alf Miers, had submitted to his arrest by Riley Burnett, and after such submission broke away from the custody of said officer with the intent to escape from the arrest to which he had submitted, that the officer, Riley Burnett, had the right to prevent said escape." A is arrested by a private person without authority. A did not resist the arrest. A has no right to escape from such an arrest, and hence the person making the illegal arrest is vested with the authority of a full-fledged officer, armed with all proper authority, and A must go with the trespasser wheresoever he desires, and can obtain relief by habeas corpus, we suppose, if his consent has not deprived him of this right. We defy the production of a single authority in support of this proposition. Such a doctrine would be sweet to the highway robber. He would select his time, arrest his man, take him to one side for the purpose of fleecing him, and the prisoner would have no right to regain his liberty, because he had yielded to the arrest without resistance; nor could any other persons intervene, for they would have no greater or other rights than the prisoner. This charge vamps paragraph C of the main charge, which reads: "But if a person submit to arrest, and acquiesces in the authority of the officer to make the arrest, he waives every objection or right he may have made to any irregularity or illegality in the same or the arrest; and if thereafter he breaks away from the officer he acts unlawfully, and in a conflict between him and the officer consequent thereon, he, in law, would be the aggressor; and if by his conduct [what conduct? running, we suppose], or with deadly weapons, he leads the officer to reasonably apprehend danger to life or serious bodily harm, he can not invoke the law of self-defense in any subsequent conflict."

When we read this instruction to the jury we can account for the verdict of guilty in this case. Now, in regard to this charge, we have this to say, that it is not law, but an outrage upon law. A citizen is illegally arrested without resistance. He attempts to regain his liberty by flight. He is the aggressor if he should shoot the trespasser to save his own life — shoot and kill the man who was and had been in the very act of killing him, because he was attempting to release himself from the, in law, real aggressor.

The appellant was convicted of murder of the second degree; his punishment was fixed at confinement in the penitentiary for the term of twenty-five years. This conviction has no support in the evidence. It is evidently against not only the great weight of testimony, but against all of the evidence. We close our observations in regard to this case with the language of Messrs. Horrigan and Thompson in their note to the case of Myers v. The State, 33 Tex. 525: "This seems to be one of those unfortunate cases where not only the plain rules of law, but the very right and justice of the case, have been violated, and, what is worse, violated against the overwhelming preponderance of the testimony, and that presumption which the law humanely indulges in favor of the innocence of every man who is put upon trial for crime."

The judgment is reversed and the cause remanded.

Reversed and remanded.

HENDERSON, Judge, concurs.

DAVIDSON, Judge, absent.