Stewart and MacKley v. State

PRENDERGAST, Presiding Judge. Both appellants were convicted of murder and their punishment assessed at fifty years each in the penitentiary. The facts, and the inferences therefrom, are uncontroverted. Appellants introduced no witnesses or other evidence. ¡Neither testified. It is unnecessary to give in detail the evidence of the respective witnesses. Instead we will give substantially the facts as established by the evi *444 dence as a whole, and the reasonable inferences which the jury were authorized to draw therefrom. In addition, we may state what some particular witness testified as to some issues. Just about night on August 19, 1914, appellants in a one-horse vehicle stopped and camped about three-quarters of a mile south from the town of Texline in said county. That night between about 13 and 1 o’clock they attempted to burglarize, and perhaps also actually burglarized, the storehouse of Mr. Bingham, called Bingham’s Hardware Store, in said town. This store fronted about north on one of the town streets. The Garvey Hotel fronted the same street and direction, and was east of Bingham’s, a vacant lot twenty-eight feet wide separating the two buildings. Fronting the same street and direction with a like vacant lot on the west, was the Caddell store building. Bast and adjoining the Garvey Hotel and a part of the same building, Garvey had a little grocery store. Directly across the street, opposite the Garvey Hotel, fronting about south, was the Timmons store. The entrance to the Bingham store was in the center thereof. The doors were set back some three feet from the line of the front. On the front line were double swinging screen doors, not locked or fastened, opening in the center. Slanting from the fastenings of the screen doors to the store doors proper on either side were glass windows, the two sashes in each being eighteen inches wide and some fifty-four inches high, thus making a vestibule in the center' of the door at the entrance. On each side of the store front were two large glass windows, two sashes in each twenty-eight inches wide and fifty-four inches high, thus making the entire front of glass, except the door and the stops between the windows. The sash in each of these front windows were fastened, therein by quarter round mold and putty. The deceased, R. C. Brownlee, his brother-in-law, John Garvey, and Mr. Henderson had been out of town in a livery rig, hunting and fishing. They returned to town about 11:30 on the night of August 19th, drove up in front of the Garvey Hotel, where deceased Brownlee’s wife and baby were staying. The hotel folks were her parents. Brownlee then got out of the conveyance and went to where his wife and baby were in the hotel. His brother-in-law Garvey and Mr. Henderson then drove the livery rig to the stable, some three blocks distant, where they put it up. They then went with the night telegraph operator to the depot and remained there some thirty or forty minutes. Leaving there they started to their homes. Going a short distance in the same direction, Henderson left Garvey, going to his home, and Garvey continued to said hotel, his home. Garvey passed along on the sidewalk in front of the Caddell store, which had a concrete walk. The walk between the Caddell and Bingham stores was dirt and cinders. So it was in front of the Bingham store. When Garvey reached the corner of the Bingham store, next to Caddell’s, he saw appellants emerge from the Bingham screen doors, and heard those doors slam. When they came out of the screen doors "they were at a fast pace, as if they were scared.” They went to the end of the Bingham’s porch towards the hotel, turned into *445 the middle of the street and Garvey lost sight of them. It was a dark night. Garvey then went on to the hotel and told Brownlee, and Brownlee said, “We will go out and see if we can see them.” Mrs. Brownlee said that when her brother John Garvey came into the hotel at that time, she said: “When John returned he told my husband that .somebody was trying to get into Bingham’s Hardware Store.” John Garvey and Brownlee, deceased, then got their shotguns, went down on the sidewalk, and sat down on a little bench in front of the Garvey store, adjoining the hotel. In the hotel was a swinging lamp, the light from which reflected on Garvey and deceased while they were thus sitting on this bench watching. In seven or eight minutes from the time Garvey saw appellants emerge, as stated, from said Bingham’s screen doors, he and Brownlee saw them return to the scene. They first stopped in front of Dyke’s Drug Store, which seems to have been across the street but not exactly in front of Bingham’s. They remained there about a minute, evidently watching and listening to see if they were seen. They then angled down in front of Bingham’s. They reached the hitehrack right in front of Bingham’s store. John Garvey said: “When they got to the hitehrack in front of Bingham’s store they saw us sitting in the light and turned right quick and angled down the street in front of Timmons, keeping in the street. At that time we had been sitting on the porch of the hotel about seven or eight minutes, the light from the hotel shining on us,—our guns with us. I do not know whether or not the guns were within the view,—within plain view. We were in plain view, but I don’t know where we had our guns. They were not under our clothes, but I don’t know where we had our guns. They were not under our clothes, but were in plain view, but I don’t know whether a man could have seen them at a distance. Those persons (appellants) never saw us until they got right in front of Bingham’s. We were out in the light and could see them and they could see us and they did see us, but I don’t think they could see our guns that far.” He further said that as soon as appellants got in front of the hardware store and saw them, they turned over to the other side of the street, in a fast walk. He and Brownlee, as they got opposite them, went towards them. Garvey further said: “When they (appellants) left the front of Bingham’s store and went to the front of Timmons’ store, they crossed the street and traveled in a fast walk; and when they got in front of Timmons’ store, inasmuch as we had seen them go back to the hárdware store—we thought that it was our duty to arrest them, if we could do so. We went out in the street to make the arrest. We thought they were going into this (Bingham’s) store, and we went out and they branched on the opposite side of the street from where we were sitting, and Brownlee said, ‘What are you fellows doing here at this time of night?’ They both started off without answering. They traveled away from us down Second Street toward the water trough. Brownlee spoke loud enough for them to hear and then said to them, ‘Halt,’ twice. The first time that Brownlee called to these parties to stop they started in a fast run, Brownlee *446 starting to raise his gun, as he called to them to halt the second time. Just as he raised his gun, they commenced shooting, and they shot once, or maybe twice, before he started to shoot. I ran to a telephone post to get in the dark, and Brownlee stood in the light, which shone into the street from the hotel. The men were in the dark. They were running when Brownlee said ‘Half the second time, and they shot back while running. They fired five shots and we fired three. Brownlee fired two of them and myself one. We used Ho. 4 shot in shotguns.” The" evidence by other witnesses would clearly justify the jury to have believed that appellants shot at Garvey and Brownlee more than twice, perhaps the five times, before Brownlee or Garvey either shot. Garvey was not hit; neither of appellants was hit with the shots. Brownlee was shot with a 32-caliber ball, from which he died a few hours later. This shooting is shown to have occurred at about 1 o’clock a. m. or just after. Appellants went at once to their camp, hitched up and left, going south, attempting to escape. The exact time they left their camp could not be shown, but it was before daylight. They were seen the next morning about sunup some eight miles south. They were arrested that morning between 9 and 10 o’clock and they and their outfit searched. They had two pistols,—one a 32-caliber, which had been freshly fired. Soon after the shooting, parties began to investigate whether the Bingham store had been burglarized; they found the store doors intact, but one of the large panes of glass, twenty-eight by fifty-four inches, in the front of the store, nearest to the Caddell store, had been removed by appellants. The tool or instrument with which it had been removed was found on the person of one of appellants the next morning when they were arrested. It was absolutely demonstrated that said pane of glass had been removed with this instrument. It was fitted in the places where the molding and putty had been removed by them, and there can be no sort of doubt but that they removed this pane of glass to burglarize the store. The glass and molding itself was also found leaning against the fence at the vacant lot, which separated the Bingham and Caddell stores. Appellants were tracked from the Bingham store to their camp, and their horse and vehicle were tracked from there to where they were arrested. Their tracks and the horse tracks were measured and identified with their tracks and the horse tracks, beyond any doubt. The evidence would clearly authorize the inference that appellants were about said Bingham’s store with the intention and preparing to burglarize it when the deceased, Garvey and Henderson returned from their hunt and drove up in front of the hotel and that they were then and thereby frightened, away from it. But whether that is true or not, it is certain that just before 1 o’clock they removed said glass to burglarize said store, and when they heard Garvey approaching they attempted to secrete themselves in said vestibule, but realizing Garvey would necessarily pass immediately in front of the vestibule, in order to prevent being caught therein and to escape detection and appre *447 tension, they immediately and hastily departed therefrom. When Garvey passed along going to the hotel, without then saying anything to them, they waited the seven or eight minutes, assuming, of course, that Garvey would go on to bed and that they would not be further interrupted. They returned after this lapse of time to the scene and reconnoitered. Seeing and hearing no one at first there can be no shadow of doubt that they then approached said Bingham’s store again with the intention and purpose of burglarizing it, and their efforts and maneuvers then seen by both Brownlee and Garvey clearly justified them to conclude, as they did, that appellants were approaching said store again in an attempt to burglarize it. No other reasonable conclusion could have been drawn from all the facts and circumstances then seen and known by Garvey, and in connection with what Brownlee had been told before, also by him. Under such circumstances we think it clear that Brownlee and Garvey, each and both, then had the right, if it was not their duty, to arrest appellants, which they, in a proper way, attempted.. This case was tried in the court below on the theory by the State' and the trial judge that the evidence raised the issue of murder and of manslaughter, and self-defense in connection with the attempted arrest of appellants and as a part of that attempted arrest. On that theory the court, in his charge, clearly submitted these three issues. On the contrary, the appellants and their attorneys contended that, murder in no event was raised; neither was manslaughter, and that in addition to self-defense in connection with their attempted arrest, self-defense, independent and separate from that, was also raised. In the trial these issues were fought out. Appellants, by objections to some of the evidence, by objections to the court’s charge and by charges, requested, properly raised and preserved these questions. After a careful and thorough investigation and study of this record * and the law applicable thereto, we have reached the conclusion that the State’s contention and the view of the trial judge was correct and that-of appellants not correct. Hence, it will not be necessary for us to take up each, the objection to the evidence, the court’s charge, and appellants’ refused requested charges and discuss them separately. What we have to say, however, will apply to all of them. Our statute (art. 1303, P. C.) not only makes it a felony to commit the complete offense of burglary, but also (art. 1320, P. C.) makes it a felony for any person to attempt to commit burglary. The next article defines an attempt as “an endeavor to accomplish the crime of burglary carried beyond mere preparation, but falling short of the ultimate design in any part of it.” These statutes were correctly given, to the jury by the trial judge and applied in his charge. Article 259, Code of Criminal Procedure, says: “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.” Article 263, Code of Criminal Procedure, is: “In all the cases enumerated where arrests may be lawfully made without warrant, the *448 officer or other person making the arrest is justified in adopting all the measures which he might adopt in eases of arrest under warrant. . . .” Article 288, Code of Criminal Procedure, is: “In making an arrest, all reasonable means are permitted to be used to effect it. No greater force, however, shall be resorted to than is necessary to secure the arrest and detention of the accused.” Article 290, Code of Criminal Procedure, is: “In executing a warrant of arrest, -it shall always be made known to the person accused under what authority the arrest is made; and, if requested, the warrant shall be exhibited to him.” These statutes, in effect, were given in charge to the jury in this case and applied to the issues raised. In the case of Miller v. State, 32 Texas Crim. Rep., 319, appellant therein was convicted of murder in the first degree with the death penalty assessed and affirmed. The homicide in that case arose out of an attempt to arrest him for the offense of unlawfully carrying a pistol. At the time he was in his own house and was not then so carrying or charged with then carrying such pistol. The officers, one of whom he killed, had been informed before then that he, on a previous occasion,— not then—had unlawfully carried a pistol. They had no warrant, and no complaint had been made against him. They were attempting to arrest him for said misdemeanor without "complaint or warrant. On appeal he contended that his attempted arrest was unlawful and he had the right to kill the deceased in resisting such unlawful arrest. Judge Hurt, for the court, 'in that case, discussing that point, said: “Counsel for appellant contend earnestly that the evidence does not warrant a conviction for murder in the first degree. We will discuss this question from two points of view: First, that the attempted arrest was illegal; second, that it was legal. A man will not be justified, if he kill in defense against an illegal arrest of an ordinary character, yet the law sets such a high value upon the liberty of the citizen that an attempt to arrest him unlawfully is esteemed a great provocation, such as may reduce a killing in resistance of such an arrest to manslaughter. But while this is the general rule, yet the killing may be done under such circumstances of deliberation or cruelty as will afford proof of express malice, in which case it will be murder of the first degree (Galvin v. State, 6 Colo., 292; Roberts v. State, 14 Mo., 138), as when the killing be done with a weapon deliberately prepared beforehand to resist the illegal arrest. Rex v. Patience, 7 Car. & P., 775. “A is expecting an attempt will be made to arrest him illegally. He deliberately prepares his arms for immediate use, calmly and deliberately determines to kill the person who attempts the arrest. B appears with intention of making the arrest. A immediately shoots and kills B. A would be guilty of murder upon express malice, though the intended arrest was illegal. To hold A guilty of murder upon express malice would not only be law, but common sense and justice. Applying the facts of this case to this rule of law, we would hesitate before reversing *449 the judgment for insufficiency of the evidence, though the attempted arrest was unlawful.” In the recent work of Michie on Homicide, vol. 1, p. 130, he says: “A private person may, in a temperate manner and without a warrant, arrest one who has just committed a felony; and it is murder for the person so attempted to be arrested to kill one whom he knows is in fresh pursuit and endeavoring to arrest him for such felony. Where a citizen attempts to arrest a person who has committed a felony without a warrant, and such accused intentionally kills him, he is guilty of murder in the first degree. Under a statute which declares that any person who kills a private citizen endeavoring to apprehend a criminal, knowing the intention with.which such private citizen interposes, is guilty of murder, the State must prove that the defendant, who shot his pursuer, was a criminal, that deceased was endeavoring to apprehend him when shot, and that defendant then lmew deceased’s purpose. “Where the law provides that a private person may arrest one who has committed a felony, and is escaping or attempting to escape, and defendant knows deceased’s purpose, his killing deceased, by resisting and shooting him constitutes murder, although deceased did not inform defendant that he was an officer of the law. “Where a person has been apprehended in the commission of a felony, notice of the crime and the purpose of pursuit, by one endeavoring to arrest him for such crime, is not necessary.” In 3 Cyc., p. 884, it is said: “It is both the right and the duty of a private person who is present when a felony is committed to apprehend the felon without waiting for the issuance of a warrant; and the arrest may be made at any subsequent time as well as at the time of the commission of the felony. So, too, he may arrest without a warrant one whom he finds attempting to commit a felony.” In a footnote following said text, citing cases, it is said: “To make such an arrest legal it is not necessary that the person should have, at the time he is arrested, a continuing purpose to commit the felony and that he may be arrested, though that purpose is wholly ended, provided the arrest is made upon fresh pursuit.” Presiding Judge White, in Staples v. State, 14 Texas Crim. App., 136, p. 139, says: “In discussing the reasons for, and circumstances justifying, an arrest without warrant in civil actions for damages, that great and learned philosophical law thinker and writer, Mr. Cooley, says: ‘There are sometimes circumstances which in themselves are a command of arrest as imperative as could any command by official authority. These oases in general are plain, and they rest upon the inherent right of society to defend itself against sudden assaults, not by regular proceedings merely, but in emergencies, by the spontaneous actions of its members. In all civil cases it is not supposed that public justice will suffer, or that anyone can be seriously injured or incommoded, by any *450 such delay in arresting a wrongdoer as may be required to obtain proper legal process. Neither in general can any similar delay be supposed prejudicial in the case of minor offenses against the State. But it may be reasonably expected that a felon will flee from justice if an opportunity is afforded him, and also that if lie knows he is suspected he Will do what may be in his power to obliterate the evidences of his crime. In these circumstances are found forcible reasons for prompt action in his arrest. . . . When the propriety of an arrest without process is in question, the problem is always how to harmonize the individual right to liberty with the public right to protection. Where process issues, the proceedings required in obtaining it constitutes a sufficient precaution against .causeless arrests; the magistrate decides on the facts presented to him that sufficient reason exists. But if one without this protection were to arrest upon his own judgment, he ought to be able, when called upon, to show that his judgment was warranted. To do this he should show either, first, a felony actually committed; second, facts that had come to his knowledge which justified him in suspecting the person arrested to be the felon; or, third, a felony being committed, an arrest to stay and prevent it. This seems to be the least that could be required; the fact of felony and personal knowledge of the guilt of the particular person, or reason for suspecting him; and if one errs in these particulars it is better that he be left to take the consequences than that they be visited upon an innocent party who is improperly arrested/ ” The evidence in this case, without contradiction, unquestionably shows that appellants in the dead hours of the night, after midnight, attempted to burglarize, if they did not at first actually burglarize, Bingham’s store; that just before they had fully completed the burglary and the theft from the house, they were frightened away from it by Garvey, who at once communicated the facts to his brother-in-law, Brownlee, the deceased; that in seven or eight minutes thereafter, not having completed the burglary of said store to their full satisfaction, they returned thereto for the purpose of completing the burglary,— attempting to burglarize the house. Under the circumstances and facts of this case, they could have returned for no other purpose. They were then armed to the teeth with pistols to resist arrest by whomsoever attempted. When detected in their last attempt and again frightened away from said building, their actions demonstrated that they not only intended to flee from arrest but actually murder, as they did, whoever attempted to prevent their escape or arrest them. Deceased and Garvey were in their plain view from the reflection of the hotel light. Garvey and Brownlee approached them in a proper manner, first hailing them to know what they were doing 'there at that time of night. They not only gave no answer to this inquiry but they proceeded to attempt to-¡escape. They knew that they had just committed one, if not two, felonies, actual burglary, or attempt to burglarize. When hailed they not only made no answer, but they made no inquiry of the object or purpose of Brownlee and Garvey in accosting them. When called to *451 to halt, they did not do so. When called to halt a second time they made no response, except to shoot again and again at Garvey and Brownlee; they did not and could not know that Garvey and Brownlee were private persons and not officers. Neither did they know, nor ■could they have known, that these parties had no warrant for their arrest; they did not stpp to inquire. Why? Because they knew that these parties were then undertaking to arrest them for felonies they knew they had just committed and, instead of submitting to arrest, which was their duty, or to at least inquire why they were hailed and then called to, to halt, they, as they had prepared for it and-intended, proceeded to shoot and kill, and without any provocation whatsoever. They gave neither of these parties any time or opportunity to tell why they were hailing them. They wanted no reason. They already knew why, and, as stated, intended not to be arrested and to make no inquiry. In our opinion the evidence clearly raised and fully established murder, which was submitted to the jury in a proper charge by the court. It may have raised the issue of manslaughter; if so, that was, in a proper charge, submitted to the jury, and the jury with ample evidence to justify it, found against them on that issue. The evidence may have raised the issue of self-defense, as stated, in connection with their attempted proper arrest; but if so, the court properly submitted that issue in their favor and the jury, with ample evidence to sustain it, found against them. The evidence did not raise and the court did not err in not submitting self-defense otherwise than as was submitted by the court. All of the evidence as to what appellants had done to the Bingham store, showing and tending to show that they burglarized, or attempted to burglarize it, was admissible and the court did not err in admitting it over appellant’s objections thereto. In our opinion the judgment should in all things be affirmed, and it is so ordered. Affirmed.