McDonald v. State , 1929 Tex. Crim. App. LEXIS 936 ( 1929 )

DATTIMORE, J.

Conviction for murder; punishment, five years in the penitentiary. Appellant was a deputy sheriff. Informed that a felony had been committed by two Mexicans who had fled, he called the sheriff over telephone, and was told to handle the matter himself as he thought best. He gathered a posse, and at a late hour in, the night went out in the direction he thought the Mexicans had gone. At about 4:30 in the morning his posse was near Grand Falls. Deceased, a restaurant man in Grand Falls, had stayed up that night to furnish food to a group of men who desired same after the adjournment of their lodge. The banquet was finished about 4 a. m. He had to give early breakfast to another group, and, having no time to sleep] got in a car with Murray for a drive to rest and refresh himself. Unfortunately they took the road upon which the posse was stationed, near a gate. Murray was driving the car, deceased sitting beside-him. As they approached the posse, appellant stepped in front of the car occupied by Murray and deceased, and, according to Murray’s testimony, ordered them to halt. Murray said he was scared, thought hi-jackers were holding them up, so -he wheeled his car to the left, turned, and drove back. As the ear turned, a fusillade of shots, twenty to thirty, were fired, and deceased was killed. Two wounds were in his body, one in the neck and one in •the side, either of which, according to a doctor ■who examined the body, wo-uld be fatal. He was also shot through the arm, and a pistol bullet was taken oht of his (hand. The doctor expressed the belief that the neck wound seemed to have been made by a bullet about the size of the one taken tout of the hand. We find no testimony as to the size of the bullet or shot which inflicted the wound in the side. Murray was also shot in the hand by a buckshot. Numerous bullet holes were in various parts of the car, including the casings, one of which, according to the testimony of a witness, was punctured by a buckshot and another by a pistol ball. Appellant proved a good reputation, and that deceased was a total stranger, against whom he had nothing. He testified that when Ihe stepped into the light of Murray’s car he called out to the occupants, “This is the law, stop.” When the car wheeled, appellant thought the Mexicans were trying to get away, and says he shot at the rear wheels of the car, purposing to puncture the tires and thus stop the car. He swore that he gave no order to the others with him to fire, and did not know they were going to shoot. The testimony further shows that appellant and some of his posse got in a car after the shooting at the gate and pursued Murray, who thereupon abandoned his car and fled on foot. Appellant shot at or toward Murray while thus fleeing, and he fell toi the ground apparently to ¡make his pursuers think him dead. Appellant and one or 'two of his posse went to Murray, who thereupon got up. He says that appellant said to one of the others that he “just sprinkled hini with shot.” It does not appear whether Murray got his wound at the first shooting near the gate, or when he fled from his car on- foot.

Appellant complains of the refusal of a special charge which sought to have the jury told that an officer has the right to shoot as a means of frightening a person about to be arrested, into stopping, provided such officer has no intent to kill or injure. We know of no law giving such right or authorizing such charge. Article 241, Code cr. Proc. 1925, provides that an officer making an arrest, which of course means a legal arrest, may use all reasonable means to effect same, but cannot use greater force than necessary to secure the arrest and detention of the offender, and in article 242, Code Cr. Proc. 1925, the right is given to break open a door of a house where the offender may be, if admittance is refused, after information is given as to the authority and purpose of the arrest. The notes under article 241 of Vernon’s Annotated Criminal Statutes of the State of Texas, cite many authorities as supporting the proposition that violence can only be used in the necessary self-defense of the person making such arrest. Among said cases cited are Miller v. State, 31 Tex. Cr. R. 609, 21 S. W. 925, 37 Am. St. Rep. 836; Jones v. State, 26 Tex. App. 1, 9 S. W. 53, 8 Am. St. Rep. 454. In Giebel v. State, 28 Tex. App. 151, 12 S. W. 591, we said that an officer is guilty of murder if he kills a prisoner whose only effort is to run away and thus escape arrest. We think the charge correctly refused.

The court charged on principals, but gave no charge on the theory of a killing by some other member of the posse than appellant, shooting on an independent impulse unknown, to appellant and not within the scope of their undertaking. This, however, was not called to the attention of the trial court by any exception or special charge.

There is a general exception to the charge for failure to submit the affirmative defense, but no suggestion in the exception or any special charge appears -as to what is the affirmative defense, and this might have been difficult for the trial court to determine.

There was an exception to the charge for failure to submit the law of negligent homicide, which exception we think pertinent, and that the failure of the court to so charge was error. Under our law, when any person in the performance of an unlawful act kills another, he shall be guilty of negligent homicide of the second degree and punished accordingly. Articles 1230-1243, Pen. Code 1925. If appellant shot on the occasion in question, intending to kill, he might be guilty of murder with or without malice aforethought, dependent on the jury’s belief as to the motive actuating him. If he shot without intending more than to alarm the occupants of the car, the use of a deadly weapon in a threatening manner for the purpose of alarming such parties, might be an assault within the meaning of article 1141, Pen. Code 1925. If he shot intending to puncture the tires or otherwise injure the car of Murray, this would seem, an act which would give just occasion for -a civil action such as is comprehended by article 1240, Pen. Code 1925. In either event appellant would seem guilty of an illegal shooting. He testified that he shot with a shotgun at the tires, intending only to stop the car. That from this shot deceased may have been killed would be possible. Murray, sitting by deceased, was struck by a buckshot. No effort is made to show that the fatal wound in the back of deceased was not inflicted by buckshot. The doctor’s opinion, based solely on an examination. of the wound in the neck, that that wound was caused by a bullet about the size "of the one in the hand of deceased, would be but his belief, and would not conclude the jury’s right to believe that deceased came to his death from -a gunshot inflicted by appellant himself. This being'true, and appellant affirming, without seeming contradiction from any one, that ¡he shot at the tires with a shotgun with- no intention to kill, seems to us to make it seriously erroneous for the trial court to fail and refuse to charge on negligent homicide of the second degree. It being necessary to reverse this ease for this error, we suggest that on another trial of the case, if there be one,. and the testimony be similar to that in the instant record, the court should charge on the theory of a killing by some one in the posse other than appellant, on an independent impulse. See Stevenson v. State, 17 Tex. App. 618; Faulkner v. State, 43 Tex. Cr. R. 311, 65 S. W. 1093; Smith v. State, 52 Tex. Cr. R. 29, 105 S. W. 182; Goodwin v. State, 58 Tex. Cr. R. 503, 126 S. W. 582.

For the error mentioned, the judgment will be reversed, and the cause remanded.