Kelley v. State , 80 Tex. Crim. 257 ( 1916 )

Appellant was convicted of assault to murder and his punishment assessed at seven years confinement in the State penitentiary.

There are four bills of exception, three to the refusal of the court to give special charges requested; the fourth embodying appellant's exceptions to the charge as given. We do not deem it necessary to discuss each of them separately, but rather all four at one time, because they each present the same question, in substance, and that is, the failure of the court to give in charge articles 289 and 290 of the Code of Criminal Procedure, which relate to an officer forcibly entering a house to make an arrest, and in making an arrest, both articles providing that the officer shall make it known that he is an officer, and that he is there for the purpose of making an arrest. Three officers, in citizens' clothes, went to appellant's room at night for the purpose of arresting him; they knocked on his door and he asked, "Is that you, Dave?" The officer replied, "Yes." Dave was a friend of appellant, whom he was expecting to come to his room, and when appellant opened the door he saw the three officers, one of them having a pistol drawn. He undertook to close the door and the shooting began, appellant shooting two of the officers, and this conviction is for the act of shooting one of these officers.

Appellant's contention is, that as these officers testified they did not inform appellant they were officers and there to effect his arrest, he was justified in shooting, and the court should have instructed the jury that it was the duty of the officers to notify appellant that they were officers and had come to arrest him, and as they admit they did not do so, the court should have, in effect, instructed the jury appellant was justifiable in resisting and in shooting the men at his door. This is the contention made by appellant in the special charges requested, and in the exception to the charge.

The court tried the case upon the theory that although these officers did not notify appellant of their purpose, yet if the jury found (notwithstanding these officers failed to so tell appellant) that appellant was aware they were officers and had come to effect his arrest, appellant would not be justified in shooting the officer, and we think this a correct exposition of the law.

It is true appellant testified he did not know the men, and he thought they had come to his room to effect a burglary, or for some other unlawful purpose; that they did not notify him they were officers, nor the purpose of their mission, and when they undertook to force an entrance to his room he shot to protect himself and his domicile. If the jury found that state of facts to be true, he should have been acquitted, and this we do not think anyone would question.

But the State contends, that although the three men who went to the door and knocked did not explain their purpose to appellant, yet the facts and circumstances in the case are such as to authorize the jury to find that he did know they were officers and they were there to arrest him. And as raising this issue, the State proved, and appellant admitted, that he that night had committed two acts of highway robbery; that the officers went to the door and knocked, and men on an unlawful mission do not generally give notice of their presence on occasions of this character; that appellant, while testifying that he did not know they were officers there to effect his arrest, yet stated after he closed the door he went to the window for the purpose of escaping through the window, and that one defending his residence would not be hunting places to escape; that when he got his head out of the window an officer stationed there fired at him and grazed the back of his head; that he then exclaimed, "I will surrender," or "I will give up," and we think these facts and circumstances are such as to authorize the court to submit to the jury the issue of whether or not appellant knew they were officers, intending to arrest him, when he shot officer Smith. It is true, appellant in his testimony, would explain these circumstances, yet the court and jury were not compelled to accept his explanation.

Appellant is on trial, and not officer Smith. Mr. Smith and those with him may not have done their whole duty under the law. Under the law it may be contended that when they knocked on the door and appellant asked, "Is that you, Dave?" they should have answered, "No, we are officers here to arrest you for the robbery of the Caywoods and the robbery at the drug store," but the desperate methods used in the perpetration of these two robberies made the officers aware they would be taking their lives into their hands to have so answered. But their failure to do so would not authorize appellant to shoot them, or either of them, if he was in any way made aware of the fact they were officers and were there to arrest him. It is appellant who is on trial, and it is the information he had and the motive moving him to fire the shots by which he is to be judged, and not the motives of the officers. That the officers did not specifically notify him of their mission would be a circumstance tending to show he had no notice they were officers, and the court admitted the testimony on that theory; yet this is not conclusive proof that he was not aware of their purpose and mission. If he was aware of their purpose in coming to his room — that is, to effect his arrest, he would not be authorized to slay them, no matter how negligent in the performance of their duty they might have been.

The court instructed the jury, after defining properly what would be an illegal arrest: "In this connection you are charged that though you find and believe from the evidence that the defendant was guilty of a felony yet if he was not at the time about to escape and there was time for the officers to procure a warrant for his arrest, then you are instructed that said arrest of defendant without a warrant (if they did so arrest him) was illegal and that defendant had a right to resist same, using such force as was necessary, going even to the extent of killing said Smith and Eimecke or either of them, if such killing was necessary to prevent said illegal arrest and if you find and believe under this charge that said arrest was illegal as herein defined and that the injury inflicted upon the said Frank Smith, if any, was made while resisting arrest, or if you have a reasonable doubt thereof then you will acquit the defendant and say by your verdict not guilty."

Again, on the question of using more force than was necessary in effecting the arrest, the court instructed the jury: "You are hereby instructed at the request of the defendant that though you may find and believe from the evidence that the officers, Smith, Eimecke and Lane, had information from a credible person that the defendant herein had committed a felony and though you believe said officers had a lawful right at said time to arrest the defendant, yet if you find and believe from the evidence that the power to arrest was, by them, or either of them, exercised in such a wanton and menacing manner as to threaten the defendant with loss of life or some serious bodily harm, then you are instructed said defendant had the right to defend himself from such danger or apparent danger as it reasonably appeared to him viewed from his standpoint. And a party so unlawfully attacked is not bound to retreat in order to avoid the necessity of killing his assailant. If you believe that the defendant committed the assault as a means of defense against the power to arrest exercised in a wanton and menacing manner, believing at the time he did so (if he did do so) that he was in danger of losing his life or of serious bodily injury at the hands of the said Lane, Smith and Eimecke, or either of them, or if you have a reasonable doubt thereof, then you will acquit the defendant and say by your verdict not guilty."

In his main charge the court instructed the jury:

``You are therefore instructed that if you believe from the evidence or have a reasonable doubt thereof that the said Frank Smith, or one George Eimecke or one E.B. Lane or either or all of them just previous to the time of the assault, if any, alleged in the indictment, attempted to force an entrance into the room occupied by the defendant; and if you further believe from the evidence or have a reasonable doubt thereof, that at the time of attempting to force such entrance, if they did attempt to force an entrance, the said Frank Smith or said George Eimecke or said E.B. Lane, or either or all of them, had a pistol or pistols in their hands; and you further believe from the evidence or have a reasonable doubt thereof, that the defendant saw said pistol or pistols, and that viewed from the defendant's standpoint and viewed in the light of all the surroundings, facts and circumstances, that the defendant reasonably believed that he was about to be unlawfully attacked and was about to receive death or serious bodily injury at the hands of the said Frank Smith or said George Eimecke or the said E.B. Lane, or either or all of said men, or that the defendant reasonably believed that said Smith, Lane and Eimecke, or either or all of them, were attempting to enter said room for the purpose of burglary or the commission of a felony or were attempting to force an unlawful intrusion into the room of defendant, or were attempting to make an unlawful or illegal arrest of the defendant and that he, the defendant, acting under a reasonable apprehension of such danger, unlawful intrusion or unlawful arrest, if any, at the time he did shoot said Frank Smith, if the defendant so shot him, that then if you so find, or have a reasonable doubt thereof, you are charged that such assault, if any, committed by the defendant upon the said Frank Smith, if he did so commit it, would be justifiable upon the grounds of his own necessary self-defense or in defense of his personal property or in defense of his domicile, and if you so believe or have a reasonable doubt concerning such fact, you will acquit the defendant and say by your verdict not guilty.

"You are further charged that if you find and believe from the evidence, or have a reasonable doubt thereof, that at the time the officers Smith, Lane and Eimecke effected the arrest of the defendant at the rooming house on the corner of Elm and Hawkins Streets in the City of Dallas, Texas, that the defendant did not know and did not have reasonable ground to believe that said Smith, Lane and Eimecke were officers attempting to effect the arrest of the defendant at said time and place; and you further find and believe from the evidence, or have a reasonable doubt thereof, that the acts and conduct of said Smith, Lane and Eimecke, or their acts, coupled with their words, at said time and place reasonably created in the mind of the defendant a belief that the said Smith, Lane or Eimecke were burglars or robbers attempting to force an entrance to his room for the purpose of committing the offense of theft or any other felony or that such acts or words, or acts coupled with the words of the said Smith, Lane and Eimecke, or either or all of them, if any, created in the mind of the defendant a reasonable belief that he was about to receive an unlawful attack from the said Smith, Lane or Eimecke, which placed the defendant in danger of death or serious bodily injury, then if you so find you are instructed that the defendant had the right to use all necessary force to repel such intrusion into his room by said Smith, Lane and Eimecke, or either or all of them — even going to the extent of taking the life of either or all of said men; and it matters not whether such danger be real or apparent, if it reasonably appeared to the defendant that such danger did in fact exist.

"If you believe that the defendant committed an assault as charged, if any, as a means of defense, believing at the time he did so (if he did so) that he was in danger of being robbed or of losing his life or of serious bodily injury at the hands of said Smith, Lane and Eimecke, or either of them, or if you have a reasonable doubt thereof, then you will acquit the defendant, and say by your verdict not guilty. . . .

"You are further charged that it matters not whether such danger, if any, did in fact exist; but it is only necessary that the defendant reasonably believed that such danger did in fact exist, and if acting upon such reasonable belief the defendant would be justifiable in using all necessary force to protect himself against such danger — whether the danger was either real or apparent.

"You are further charged that if you find and believe from the evidence or have a reasonable doubt thereof, that the arrest of the defendant by said officers Smith, Lane and Eimecke was an illegal arrest or if you further find and believe from the evidence that viewed from the standpoint of the defendant in the light of all the surroundings and circumstances of the case, that the defendant reasonably believed such arrest was an unlawful or an illegal arrest, or if you find that the defendant reasonably believed that said Lane, Eimecke and Smith were about to make an unlawful intrusion into defendant's room, then if you so believe or have a reasonable doubt thereof you are instructed that the defendant had the right to use all necessary force in overcoming such, either real or apparent illegal arrest or unlawful intrusion, if any, or such arrest as the defendant reasonably believed to be unlawful or illegal.

"You are further charged that in passing upon the defendant's case the jury should view all of the facts from the defendant's standpoint — each juror should place himself as nearly as may be in the position of the defendant at the time of the assault, if any, and determine from all of the facts and circumstances and surroundings as they appeared to defendant at the time of the assault, if any, whether an apprehension or a fear of death or serious bodily harm was reasonable; and if you so find you should acquit the defendant and say by your verdict not guilty."

Having thus instructed the jury, we do not think they could possibly have been misled as to appellant's right to defend his person and an intrusion into his room, if he did not know they were officers and their mission was to arrest him for the robberies committed by him that night.

The judgment is affirmed.

Affirmed.