Weatherford v. State , 31 Tex. Crim. 530 ( 1893 )

Appellant was convicted of murder in the second degree, and his punishment assessed at twenty-five years in the penitentiary, from which judgment he appeals to this court.

The appellant was at the depot in the town of Hyatt, with a six-shooter, making a negro dance, when one Edwards, acting as deputy sheriff, summoned the deceased, Jack Bowers, to assist him in disarming the defendant. The officer demanded his pistol, but he refused to give it up, and when Edwards advanced on him, he shot Bowers in the stomach, who died next day. He also shot Edwards, and attempted to shoot him a second time in the head, but the pistol snapped. He then beat Edwards in the head with the pistol, and escaped. On the trial the appellant questioned the validity of Edwards' appointment. Edwards testified, without objection, that he had been acting four or five months as deputy sheriff, under written appointment from Ensloe, the sheriff of Tyler County, and he had recorded his oath of office, but not his appointment. It is also shown that appellant was aware that Edwards was acting as such deputy. Conceding that Edwards was not an officer de jure, it is clearly shown he was an officer de facto. Bish. Crim. Law, sec. 464; Bish. Crim. Proc., 185, 186. Lord Ellenborough, adopting Lord Holt's definition, declared a de facto officer to be one who has the reputation of being the officer, and yet is not a good officer in point of law. Rex v. Corp. of Bedford Level, 6 East, 356. In The State v. Carroll, 38 Connecticut, 449, the Supreme Court of Connecticut, in an elaborate opinion, held, a de facto officer is one who acts under color of a known and valid appointment, but has failed to conform to some precedent requirement, as to take an oath, give a bond, or the like. Such is the holding in Texas. Cox v. Railway Company,68 Tex. 230; Thompson v. Johnson, 84 Tex. 548 [84 Tex. 548]; McKinney v. O'Connor, 26 Tex. 14 [26 Tex. 14]. And so in other States. Petersilea v. Stone,119 Mass. 465; Town of Plymouth v. Painter, 17 Conn. 585; Rice v. Commonwealth, 3 Bush, 14; Brown v. Lunt, 37 Me. 423; Gregg v. Jamison, 55 Pa. St., 468; Commissioners v. McDaniel, 7 Jones (N.C.), 107; The People v. White, 24 Wend., 539.

In the case of Margate Pier Company v. Hannam (decided in 1833), 3 Barnewald Alden, 266, it was held, that a justice's acts were valid as to third persons, though he had not taken the oath which the statute made a condition precedent to his right to act as such, and the same principle applies in respect to ministerial officers. Lisbon v. Bow, 10 N.H. 167; Merrill v. Palmer, 13 N.H. 184. In The State v. Dierberger, where the Constitution of Missouri requires all officers, before entering on the duties of their office, to take and subscribe an oath to support the Constitution and faithfully demean themselves in office, and a deputy constable acted without taking the oath, it was held he was an officer de facto. 2 S.W. Rel., 287. If Edwards was an officer de facto, and he summoned deceased, John Bowers, to his assistance in arresting appellant, Bowers was justifiable in obeying him. Bish. Crim. Law, sec. 464; Watson v. The state, 83 Ala. 60. The evidence clearly shows a violation of law in the presence of the officer, who believing it was his duty to arrest defendant, proceeded to do so, summoning deceased to assist him. Deceased was unarmed, and so was Edwards. It was shown that appellant was making a negro dance, by aiming a pistol at his feet. Some of the witnesses speak of him as having fun with the negro," but such amusement certainly demanded the interposition of the law. Appellant knew he was violating the law. He was told by Edwards that it was his duty to arrest him. He knew that he was in no danger of his life, or of serious bodily injury, yet he deliberately killed the deceased, and attempted to kill Edwards, to avoid being disarmed, although believing Edwards to be an officer of the law.

Appellant insists the court should have charged the crime would be no higher than manslaughter, as the arrest was illegal. In the Miller case, 20 S.W. Rep., 1103, this court lays down the doctrine that even in illegal arrests of an ordinary character the killing may be done under such circumstances of deliberation or cruelty as will render it murder upon express malice. But the record here shows that Bowers was killed in the discharge of duty as a citizen of this State. It surely can not be maintained that citizens who are summoned to assist known and recognized officers in the discharge of their duties act at their own peril in case of the defective or nonrecord of the deputation of the officer. Penal Code, art. 46; Bish. Crim. Proc., sec. 186.

The court charged the jury that the arrest was illegal. The court should have charged the jury, that if the said Edwards was known and recognized in the community as deputy sheriff, and said Bowers was summoned by said officer to assist, and in good faith attempted the arrest of appellant, he would have been justifiable in making the arrest, and if appellant shot him while so acting in an orderly manner, it could not be less than murder. The special charges asked were not the law.

But appellant insists that the case should be reversed because the district attorney, in his closing speech before the jury, stated that he was informed that appellant had succeeded in getting one of his friends on the jury; that one of the jurors had gone upon the jury to hang it, and had so stated just before he was empanelled; that the juror had his mind made up when he swore on his voir dire that he had formed no opinion; that he, the district attorney, only had eleven men to speak to, as the other juror was there to hang the jury.

The appellant also introduced the affidavits of two jurors, who stated that the charge made by the district attorney influenced the jury, and that they were mad about it, and that affiants were induced to vote for a verdict of twenty-five years when they thought that five years was sufficient. Upon grounds of public policy, courts have almost universally agreed upon the rule, that no affidavit, deposition, or other sworn statement of a juror, will be received to impeach a verdict, or to explain it, or to show on what grounds it was rendered (2 Thompson's Trials, section 2618, and authorities cited), and the wisdom of the rule needs no argument to support it. We call not notice the affidavits filed in this cause, showing that the appellant received a higher punishment than two of the jurors would have agreed to if they had not been provoked by the language of the district attorney. As to the charge itself made by the district attorney, which was reiterated over the objections of the defendant, and unchecked by the court, we think that, whether it was true or false, it was wrong in the district attorney to make it. The trial judge should of his own accord have promptly stopped him.

In the closing argument of the case, where the proof was very strong against the man on trial for his life, and when he had no chance to reply or deny it, to publicly charge that he was so conscious of his guilt that he had stocked the jury to defeat justice, must have affected most injuriously the rights of appellant. Jurors disposed to be lenient may have surrendered their conviction of right under an apprehension of being suspected as the juror denounced by the district attorney. If the district attorney was in possession of facts justifying such a charge, he should have caused the arrest of the juror for perjury as soon as the jury was discharged from the case, and secured his conviction, irrespective of the question "how he voted." If the charge was false, then unquestionably it was calculated to injure appellant. Willson's Crim. Stats., sec. 2321.

For the remarks of the district attorney the judgment must be reversed; but in reversing the case, we desire to call the attention of the trial court to the omission of the charge under the statute, that the jury are the exclusive judges of the facts proved and the weight to be given to the testimony. Code Crim. Proc., art. 728.

The judgment is reversed and the cause remanded.

Reversed and remanded.

Judges all present and concurring.