Stewart and MacKley v. State , 76 Tex. Crim. 442 ( 1915 )

I can not agree with the conclusion my associates have reached affirming the judgment. The State's case, in substance, is that Garvey, Brownlee and Henderson had been on an outing and returned at night to Texline. Garvey went to the hotel, while the others were scattered about looking after various matters. Shortly Brownlee came to the hotel and joined Garvey. While sitting on the hotel gallery and before Brownlee returned, Garvey saw two men come from behind screen doors, which were in front of the main door of the Bingham Hardware Store. There was a space between the screen or outer doors and the doors that led into the store. The screen doors were not fastened; the inner doors were locked. The doors to the store were not injured in any way, and were found closed and locked. The two parties emerging from behind the screen doors went across the street and disappeared. Brownlee came and Garvey informed him of what he had seen. They armed themselves and took a seat where they could be plainly seen, Brownlee accompanying Garvey to this point. Some minutes later two men came from around the corner and started, as Garvey states, in the direction of the store from where he had seen two men emerge. While these parties were in the street Brownlee and Garvey spoke to them and asked what they were doing there at that time of night. The parties made no reply but started off in a brisk walk, when they were ordered to halt, Brownlee raising his gun in a shooting attitude. Seeing this, the other parties fired. The firing became general, Brownlee was shot and subsequently died. Subsequent to all this the officers came upon the scene and began an investigation of the store. It is uncontradicted that the store had not been entered from the doors, and the doors were uninjured, and that there was a space between the screen doors and the doors which led into the house, forming a sort of vestibule. It is also shown there was a window from which a pane of glass had been removed, which pane of glass was found some feet away. Neither Brownlee nor Garvey saw anybody open the window nor remove the pane of glass, nor is there any positive evidence as to when the pane of glass was removed. The testimony would seem to indicate, however, it had been removed that night. This was all discovered after the shooting, and was unknown to Garvey or Brownlee at the time of the shooting. This statement is emphasized by what the judge says in the qualification to a bill of exceptions. The court thus qualifies the bill: "The two men then returned and angled to the other side of the street, and when they had got in front of Timmons' store, and on the opposite side of the street from where witness Garvey and the deceased were, the said deceased, Brownlee, and witness got up and went out into the street, and Brownlee said: ``What are you fellows doing around here at this time of the night?' and that the two men then started off in a fast walk, away from witness and Brownlee, and Brownlee halloaed to them to ``halt'; that the two men then started on a run, and Brownlee, deceased, started to raise his gun as he called to them to halt. That Brownlee called to them to halt twice, and as he started to raise his gun, one of the two men fired a gun, then Brownlee fired back. About this time one of the two other men fired. Brownlee fired two shots altogether, and the two men fired about five shots. That witness Garvey fired one shot in the air after Brownlee had fired two shots and the two men had fired several shots." This is the qualification and statement of the trial judge, which must be taken and accepted as correct, so far as this record is concerned.

A bill of exceptions was reserved to the introduction of testimony with reference to the removal of the pane of glass from the window, the theory of the State being that this was an arrest on account of the fact that an attempted burglary had been committed in the presence of Garvey, who, though being a private citizen, would have the right under the circumstances to make an arrest. This might be correct if Garvey saw the attempt to commit the burglary. The removal of the pane of glass from the window was not committed in his presence, view, hearing or sight; in fact, he knew nothing of it and had not heard of it until after the trouble was all over. The objection to the introduction of this testimony should have been sustained. The authorities are quite harmonious as well as numerous on this question. If it had been committed within the view or sight of Garvey or Brownlee, the testimony might have been admissible. Lynch v. State, 41 Tex.Crim. Rep.; Cortez v. State,44 Tex. Crim. 169; Weaver v. State, 19 Texas Crim. App., 547; art. 259, C.C.P., 1911; Bill of Rights, sec. 19. In order to justify a private citizen or an officer to arrest under the circumstances of this case, without a warrant, for a felony or attempted felony, as the case may be, the acts must be done within his view, and, of course, this means with his knowledge. He is not authorized to arrest without a warrant for a thing of which he had no knowledge nor committed in his presence, and, of course, if committed in his presence he would certainly know it. This testimony was inadmissible and the court erred in permitting it to go to the jury. The part of the explanation of the trial judge as herein quoted attached to the bill of exceptions demonstrates the fact that this was not committed in view of Garvey or Brownlee, who were attempting to halt the retreating or fleeing parties. This is further demonstrated by the fact that the removal of the pane of glass from the window was not known to any witness in the case until after the trouble had ended and a subsequent investigation made.

There are a great many questions raised as to the rulings of the court, especially with reference to charges. Without going into a detailed statement of these matters, it is more than questionable that arrest was an issue in the case. Garvey and deceased, Brownlee, at no time stated to the defendants they were seeking to arrest them; they never informed them or attempted to inform them of that fact; they were strangers to each other, and the whole thing occurred at nighttime, Garvey and Brownlee being armed at the time they approached them. The parties were all strangers to each other. They could, had they desired, have informed them of the fact that they were undertaking to arrest them; they did not do so. They did have time to ask them what they were doing on the street at that time of the night, and called twice to them to halt while they were running away. If they had time to make these statements, certainly they would have had time to inform them that they were undertaking to arrest them. Defendants did not prevent them doing so; in fact, they said nothing when challenged as to their purpose but moved away, and when ordered to halt, ran. Certainly it is not resisting an arrest of any sort to run. The court submitted to the jury that defendants could not justify in resisting an arrest if they prevented Garvey and Brownlee from informing them of the fact that they were undertaking to arrest them. This theory of the judge is not supported by any fact. The mere fact that a party flees when armed strangers approach him at night calling him to halt is not sufficient notice that the approaching parties are undertaking to make an arrest. Garvey and Brownlee should have conveyed to appellants in some way the fact of an intended arrest if such was their purpose. If they had any purpose to arrest the defendants appellants were not aware of it. For authority on this question see Branch's Criminal Law, sections 437 to 444, inclusive, where the authorities are collated. This case was tried on the theory that appellants killed deceased resisting legal arrest. This was not a correct basis for the trial.

Appellants sought to have the issue of self-defense submitted as applicable to the facts. This was declined by the court, which is clearly error. The court, in a general way, charged the jury if appellants had committed a felony in the presence of or within the view of Garvey or Brownlee, and they should further find that Garvey and Brownlee were attempting to arrest the defendants, and as a matter of law, it was the duty of Brownlee and Garvey to inform appellants of the purpose for which the arrest was being made, provided they had time or opportunity to do so and was not prevented from doing so by appellants, and if the jury should find that they had such time or opportunity and failed to so inform the defendants of the purpose of such arrest, then their attempt at arrest would be illegal, and the defendants would have the right to resist and use such force as was necessary to prevent the illegal arrest, and if the jury should find from the evidence that it reasonably appeared to defendants that it was necessary to take the life of deceased to prevent the illegal arrest, then they would not be guilty. The trouble with this charge is, it is not predicated upon the facts. The charge is based upon a state of facts not shown by the record. There is nothing to justify the court in instructing the jury that appellants prevented Garvey and Brownlee from informing them of the fact that they were undertaking to arrest them. Brownlee was killed and did not testify. Garvey did testify but he nowhere, by any of the evidence, as I understand this record, testified that appellants prevented Garvey and Brownlee from notifying them they were trying to arrest them, and the court's qualification to the bill of exceptions, which shows the immediate facts and above quoted, demonstrates the fact that Brownlee and Garvey were not prevented from informing appellants of their purpose. They did not undertake to inform them; they merely challenged their business and presence on the street at that time of night, and when the parties ran called them twice to halt. Failing to halt, one of the parties raised his gun to shoot and appellants fired. The firing became general. Certainly the court having given this charge, if even authorized by the facts, the converse of the proposition should have been also given. In other words, the entire charge practically ignores the question of illegal arrest and the rights of appellants under such a state of facts. To the mind of the writer this is so clearly an attempted illegal arrest even if arrest was in the case it is not questionable, and this by all the authorities that have been called to my attention. Again, the court should have charged the jury fully with reference to the law of self-defense from the viewpoint of an illegal or attempted illegal arrest. If there is a case holding otherwise, I have failed to find it in the decisions of this State. See Branch's Criminal Law, specially secs. 437 and 439; Montgomery v. State, 43 Tex.Crim. Rep.; Cortez v. State, 43 Tex.Crim. Rep.; Mooney v. State, 65 S.W. Rep., 926; Hardin v. State, 40 Tex.Crim. Rep.; Owen v. State, 58 Tex.Crim. Rep.. Appellants had the legal right to have their view of the case submitted to the jury, which the court failed to do in his general charge, and refused all charges looking towards presenting their side of the case. Appellants also had the right to have the law of perfect self-defense presented. They also had the legal right to have self-defense presented from the standpoint of an illegal or attempted illegal arrest. But so far as the facts are concerned, there is nothing to indicate that appellants knew the purpose or intent of Garvey and Brownlee. They were both armed, seeking to stop or halt them on the street and inquiring their business in the night-time, all being perfect strangers. There was no communication or attempted communication on the part of Garvey or Brownlee that they were undertaking to arrest them, but they did act in a manner that indicated to appellants that they intended to shoot.

From any viewpoint this case ought not to be affirmed, and I, therefore, respectfully enter my dissent.

ON REHEARING. April 7, 1915.