Logan v. State

Appellant was convicted of assault with intent to murder, and the punishment is four years confinement in the penitentiary.

Late in the afternoon, previous to the commission of the alleged offense that night, appellant and his sister were in the town of Mt. Vernon. They had some trouble with a white boy named John Holland, Jr., resulting in Holland kicking and assaulting the sister of appellant and appellant shooting John Holland, Jr., after which appellant fled, and ran from the scene of the shooting some distance to the home of his father in the country. Immediately after the shooting of the said Holland, the constable and deputy constable and Mitchell Rutland, the injured party, started in search of appellant for the purpose of arresting him. They went to the home of the father of the appellant, where they secreted themselves and awaited appellant's arrival. When appellant arrived, according to his testimony, someone began shooting at him, while, according to the state's testimony, he was commanded to throw up his hands and consider himself under arrest. Appellant threw up one hand when Rutland, who made the command, advanced toward appellant with his pistol drawn, and appellant fired at Rutland, this shot going wild. Rutland then opened fire on appellant and appellant fired again, the shot striking Rutland in the shoulder. Appellant was shot a number of times in the difficulty that ensued.

The facts further disclose that Rutland was not an officer, was only a private citizen and had not seen the difficulty in town between the appellant and the said Holland, and that none of the party had a warrant for the arrest of the appellant. It was the shooting of Rutland for which appellant was convicted.

The appellant's defense was that he did not know that Rutland was an officer or was attempting to arrest him; that he did not know the authority or capacity in which Rutland was acting at the time he fired; that he fired at Rutland in self-defense; that he thought Rutland was a member of a mob or posse seeking to kill him; that as he fled from the scene at Mt. Vernon, he heard someone shout, "Kill that negro," and he feared that he would be mobbed; that as soon as he ascertained they were officers seeking to arrest him he surrendered.

The appellant filed timely objections and exceptions to paragraphs 8 and 9 of the court's main charge, complaining that the court, in his charge on self-defense, charged only from the point of view of real danger or actual attack and did not submit the issue of apparent danger as raised by the evidence. We are unable to agree with appellant's contention when we consider paragraphs 8 and 9 of the court's main charge in connection with the second paragraph of paragraph 19 of the court's main charge, for the reason we find that both the issues of apparent danger and real attack were submitted to the jury for their consideration and that the rights of the appellant in this respect were amply protected.

Appellant further objected and excepted to paragraphs 10, 11, 12, 13, 14, 15, 16, 17 and 18 of the court's main charge. We have carefully considered each of appellant's objections and exceptions. Paragraph 10 of the court's main charge is based upon Art. 212, C. C. P., and correctly charges the law, subject, however, to criticism with respect to the statement that the officer making an arrest is justified in any act necessarily done in making a lawful arrest. This principle is not correct. However, this paragraph of the court's charge, when considered in connection with paragraph 12 of the court's main charge, presents no reversible error, for in paragraph 12 the court instructed the jury that they would have to first believe that the said D. M. Rutland, the injured party, was using only such force as was reasonably necessary to secure the arrest and detention of the accused. Art. 241, C. C. P.

Art. 95, C. C. P., reads as follows:

"When any officer authorized to execute process is resisted, or when he has sufficient reason to believe that he will meet with resistance in executing the same, he may command as many of the citizens of his county as he may think proper; and the sheriff may call any military company in the county to aid him in overcoming the resistance, and, if necessary, in seizing and arresting the persons engaged in such resistance."

The appellant and his sister had a difficulty in the town of Mount Vernon which finally culminated in the appellant shooting one John Holland, Jr. This occurred in the presence of Deputy Constable Inman, who pursued the appellant some distance but without avail. He and the constable then commanded the said Rutland, the injured party, to go with them and assist them in seizing and arresting the person of the appellant. This paragraph of the court's charge was called for by the facts and presents no error.

Under the facts in this case, and under Art. 95, C. C. P., the injured party, Rutland, was clearly within his rights in going with the constable and deputy constable in pursuit of the appellant for the purpose of aiding them in seizing and arresting the appellant, and they were within the law in endeavoring to arrest the appellant without a warrant in view of Art. 212, C. C. P., which reads as follows:

"A peace officer or any other person, may, without warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony, or as an 'offense against the public peace'."

The facts show that the appellant shot the said John Holland, Jr., in the presence of the officer Inman and fled, and, at the time of the alleged assault upon the said Rutland, was approaching his, appellant's, home in a dead run some four miles from the scene of the assault upon Holland.

The learned trial judge ably protected the rights of the appellant in paragraph 19 wherein he instructed the jury that if they had reasonable doubt as to whether or not the appellant knew that the said D. M. Rutland was attempting to arrest appellant in a lawful manner and with lawful authority to do so, or as to whether or not appellant knew said Rutland was attempting to prevent the escape of appellant and was acting lawfully in doing so, then, in that event, the jury would find that appellant had the right to defend himself, as defined in preceding paragraphs of the court's main charge.

Appellant contends that the court should have given his specially requested charge No. 6. We are unable to agree with this contention. The court charged the jury that in determining the question of adequate cause, as well as all other matters before them, to consider all the facts and circumstances in evidence in the case. This left the jury absolutely untrammeled to review all the evidence in the case in connection with the assault upon the said Rutland by the appellant in order to determine adequate cause and ascertain whether or not appellant's mind was influenced thereby. This was sufficient. Sargent v. State, 35 Tex.Crim. Rep..

There is but one bill of exception in the record, and it complains at the action of the learned trial judge in overruling appellant's motion for a new trial based upon the fact that the juror J. B. Bryan could not read and write. The question raised by this bill of exception was disposed of adversely to the contention of appellant in the case of De Arman v. State, 80 Tex.Crim. Rep., 189 S.W. 145.

There being no errors in the record, the judgment of the trial court is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

OPINION ON MOTION FOR REHEARING.