The opinion
on rehearing.
April 7, 1915.
PRENDERGAST, Presiding Judge.
Appellants, in their motion for rehearing, present and again urge some of the same points they originally contended for,—decided in the original opinion against them.
Since the original opinion was handed down Judge Davidson filed a dissenting opinion. We first desire to call attention to some of the mistakes by Judge Davidson as to what the evidence was. After stating that Garvey, Brownlee and Henderson had been out on an outing and returned at night, he says: “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. . . . The two parties emerging from behind the screen doors went across the street and disappeared. Brown-lee came and Garvey informed him of what he had seen.” In the original opinion we correctly and accurately stated these matters. It was Brownlee, deceased, and not Garvey who at first went to the hotel, while Henderson and Garvey went to put up the team. It was Garvey who later came to the hotel and joined Brownlee, and not Brownlee who there joined Garvey. It was Garvey, while he was returning to the hotel from putting up the team, and as he approached the front of
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said store, who saw the appellants suddenly emerge from behind said screen doors, where they were secreted, and rapidly depart therefrom. Neither Brownlee nor Garvey, while at the hotel, .saw appellants emerge from the screen doors. This occurred, as stated, while Garvey was returning from putting up the team and he at once went to the hotel and reported these facts to Brownlee. Neither of them, from the hotel, saw the parties emerge from said screen doors.
Mrs. Brownlee, the widow of. deceased, testified: “On the night of August 19, 1914, being the night my husband was killed, my husband, John Garvey and G. G. Henderson returned from a fishing trip, having gone on the trip during the day. I did not see the other two men when they came home that night, but my husband came upstairs where myself and our little baby were, woke up the baby, and went' downstairs to see about some ducks they had killed. At this time my brother, John Garvey, accompanied, I think, by Mr. Henderson, had gone to put up the horse. When John returned he told my husband that somebody was trying to get into Bingham’s Hardware Store.” (S. F., p.
2.)
John Garvey testified: He first told about himself, said Henderson and Brownlee, deceased, having been out hunting that day and returned the night of the killing about 11:30. Then said: “We made the trip in a livery rig, and on our return, in front of my father’s hotel, Brownlee got out, Mr. Henderson and myself went to the livery stable about three blocks away to return the rig. After we put up the livery rig, we went to the depot, stayed there thirty or forty minutes, and Mr. F. D. Mize, the night operator, Mr. Henderson and myself all started home, going together as far as the railroad track, where Henderson separated from us. Mize and myself went down Taylor Street and Mize left me at lot 15 in the first block, and I went around the corner to Bud Caddell’s store, on lot 11. Doc Bingham’s store is on lots 9 and 10, and father’s hotel is on lot
7.
Lot 8 is vacant, but is fenced. As I came around the corner to Bingham’s porch, I saw two men emerge from the screen door, which opens on the porch, and heard the door slam. There is a space between the screen door and the door which opens into the building. I was on the north end of Doe Bingham’s porch when the men came out of the screen door; they were at a fast pace, as if they were scared. They went to the end of Bingham’s porch, turned into the middle of the street to the water tank, where I lost sight of them. I then went and told Brownlee, who was in the hotel, and he said,
We
will go out and see if we can see them.’ ” (S. F., pp. 3-4.)
This testimony by Mrs. Brownlee and John Garvey was not contradicted by any other witness and there was no testimony by any witness, or circumstance proven, which would contradict it or tend to do so.
Judge Davidson’s mistake as to this evidence would not be specially material. We merely call attention to it in order “to keep the record straight,” and as tending to show that he is likewise mistaken in his opinion as to the legal questions in the case and the citation of authorities to sustain them.
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In the original opinion we did not give all of the testimony which showed that appellants had actually burglarized said Bingham’s store. We did give, in substance, considerable of the testimony on that point. We then deemed it unnecessary to state all. However, we will now give in substance the other of that testimony.
C. S. Bingham, the owner of said store, and his only clerk, Ernest Martin, each, in substance, testified that Bingham had certain decorated plates in said window right inside of where appellants removed said large pane of glass; that this window was intact when Bingham left town in the evening of the night of the killing and was also intact when Martin closed the store and left it for the night. The other testimony, without dispute, conclusively shows that appellants, and no other, removed said pane of glass just about midnight or between that time and when Garvey “flushed” them and ran them out of their hiding place behind said screen doors some ten minutes before the actual killing. Charley Gibbons testified that the next morning after the killing that night, he found a decorated plate at the corner of an alley about a block from Bingham’s store. The statement of facts shows that he further designated where this was. The court and jury below had the city map and other data before them which is not contained in this record. Taking it all, we conclude that this plate was found in the location where appellants went immediately after they were run out of their hiding place behind said screen doors by Garvey, and the other facts would clearly justify the jury to conclude, as we do from the statement of facts, that they took that plate out of that window, carried it with them when they were run away from the building by Garvey, and left it where Gibbons said he found it the next morning, and then that appellants returned in front of said building in an attempt to further burglarize it as shown in the original opinion. Bingham and Martin sufficiently identified this plate as one that belonged to Bingham and must have been taken out of said window by appellants, as shown above, thus establishing a complete burglary of said building by appellants within a very brief space of time before the killing.
In the original opinion, we did not fully give appellants’ only hill of exceptions to the' introduction of testimony, deeming it unnecessary at the time. We will now state this more fully. There is but one bill on the subject. It shows that appellant objected to the testimony of said Henderson, showing that shortly after the shooting,' perhaps within an hour, he, with others, went to examine Bingham’s store, and that they then found that this window had been taken out as shown in the original opinion. That he also then found tracks in front of said store on the sidewalk; that he examined them and compared them with the shoes which were removed from the defendants on the next day and that the size and dimensions of the tracks compared with that of their shoes; that he also assisted in the arrest of appellants and there was found in the pocket of the defendant Stewart a piece of iron which he and others afterwards fitted into the places where it had been used to
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remove said window pane and that it not only fitted therein precisely, but that the putty and paint thereon was shown to have come from said window frame and fitted it precisely. This bill also shows he objected to the testimony of said Bingham to the fitting into the impression of the wood at the window said piece of iron where appellants had used it to remove said pane of glass from the window and the whole of his testimony on that subject; and to the further testimony of said Bingham about the measurements of the shoes of appellants the next day with the tracks in front of his store, and that they corresponded. Said bill further shows that he objected to the testimony of Mr. J. E. McCandless, wherein he testified that he, together with Mr. Henderson, assisted in the arrest of appellants the next morning and that they found in the pocket of Stewart said piece of iron; that he turned it over to Bingham and that he also examined the window frame in said store and found that the impressions made by said piece of iron fitted exactly the impressions in said window made thereby; that he removed appellants’ shoes from their feet on the next evening after the shooting the night before, turned them over to Mr. Bingham and identified them on the trial of this case as being the shoes of appellants worn at the time. Said bill also objects to the testimony of said Gibbons about finding the plate mentioned above, and to the testimony of Martin along the same line. In fact, this bill is to the testimony of said witnesses which showed and identified appellants as the persons who removed said window pane and committed the said burglary immediately before the killing of deceased.
We think there can be no question but that this evidence was clearly admissible under the circumstances of this case.
In Jacobs v. State, 28 Texas Crim. App., 79, it was shown that Deputy Sheriffs Biclcett and Pool of Milam County with a posse whom they had summoned, went to the house of Bounds to arrest Jacobs for unlawfully carrying a pistol. They had no warrant. They reached Bounds’ house at night; that in their attempt to arrest him while in the house Jacobs shot and killed Deputy Sheriff Pool. He was prosecuted and convicted for murder in the second degree and his conviction affirmed. On the trial the State introduced the record from the District Court of Frio County which showed that Jacobs, at the time he killed Pool, was charged by indictment, in said Frio County, with murder. The appellant objected to this evidence. The court, through Judge Willson, held that it was competent evidence, saying: “It established a circumstance which tended to show defendant’s motive in committing the homicide; which tended to show that he was a fugitive from justice, who had resolved to evade and resist arrest for a capital crime at any and all hazards' regardless of consequences, and regardless of whether his arrest should be attempted legally or illegally. It furthermore tended to explain the conduct and motives of the officers and posse- that were seeking to arrest the defendant, and to throw light upon the whole transaction. It was in fact a part of the res gestae of the homicide.”
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In Cortez v. State, 43 Texas Crim. Rep., 375 , appellant therein was indicted and convicted for the murder of Henry Schnabel in Gonzales County. It was shown that at the time of the killing Schnabel and others were attempting to arrest him without warrant. The State was permitted to prove by Choate, over Cortez’s objections, that two days before the killing of Schnabel for which he was on trial, he, Choate, went with Morris, sheriff of Karnes County, to where defendant and his brother were in Karnes County, to arrest defendant for horse theft; that an altercation occurred and defendant shot and killed Morris, after Morris had shot and badly wounded defendant’s brother. The court, in that case, in an opinion by Judge Henderson held that said testimony was admissible, saying: “Hnder the doctrine laid down in Jacobs v. State, 28 Texas Crim. App., 79, said testimony was admissible. That was a case in some respects similar to the one at bar; and it was there said, ‘That the former killing established a circumstance which tended to show defendant’s motive in committing the homicide. It tended to show that he was a fugitive from justice; he had resolved to fight and resist arrest for a capital crime at any and all hazards, regardless of consequences, and regardless of whether his arrest should be attempted legally or illegally. It furthermore tended to explain the conduct and motives of the officers and posse that were seeking to arrest defendant, and to throw light upon the whole transaction. It was in fact a part of the res gestae of the homicide.’ Of course, the fact that appellant may have killed the sheriff of Karnes County, and fled from arrest, did not authorize an illegal arrest. But conceded, that the arrest was illegal, the testimony would tend to indicate the purpose and intent of appellant in what he did. . . . His action in resisting an illegal arrest might show such a wanton killing as to indicate murder. . .
In Cortez v. State, 44 Texas Crim. Rep., 169 , it is shown that Cortez was therein convicted for the murder of said Morris, the sheriff of Karnes County. In that case it was sought to be proved by several witnesses that at the time appellant killed said Morris, Morris and others were attempting to arrest him for horse theft, but it was shown that he was not guilty of horse theft, and in no way connected with any other who was guilty of horse theft, Judge Henderson stating: “Ho person is shown to have had any stolen horse, much less that appellant was the guilty party.” Tire court held that that testimony, under that state of facts, was inadmissible, but again expressly recognized, as correct, the rule announced in Jacobs v. State, supra, and Cortez v. State, 43 Texas Crim. Rep., 375 , saying: “This is not like the ease of Jacobs v. State, 28 Texas Crim. App., 79, or Cortez v. State, 43 Texas Crim. Rep., 375 , which followed the former case. In both of said cases appellants were shown to be fugitives from justice at the time of their attempted arrest; they were thereby charged with notice of the object of the officers in pursuing them. Hot so here, as there was absolutely no testimony showing or tending to show that
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appellant was at the time a fugitive from justice or was then endeavoring to escape.”
Again, in Cortez v. State, 47 Texas Crim. Rep., 10 , it is shown that Cortez was indicted and convicted for the murder of R. M. Glover, sheriff of Gonzales County, with life imprisonment as a penalty. The case was affirmed. In that case also, the State was permitted to prove over appellant’s objections, by Choate, the facts and circumstances attending the killing of Morris, sheriff of Karnes County, in Karnes County, two days before the killing of said Glover. This court therein, through Judge Brooks," again held said testimony admissible, saying: “We hold that said testimony was admissible to show motive and as suggested in Cortez v. State, 43 Texas Crim. Rep., 375 , to explain the conduct and motive of the officers and posse seeking to arrest defendant, and throw light upon the whole transaction. It was in fact a part of the res gestae of the homicide and would tend to indicate the intent and purpose of the defendant in what he did.” In that case it was shown that Sheriff Glover and others, at the time he was killed by Cortez, intended to arrest him without warrant for the killing of said Sheriff Morris, two days before. See also Smith v. State, 48 Texas Crim. Rep., 333 ; Fifer v. State, 64 Texas Crim. Rep., 203 .
We have thus shown that the Cortez case, 44 Texas Crim. Rep., 169 , held the reverse of what it was cited for by Judge Davidson. The Lynch case, 41 Texas Crim. Rep., 510 , and Weaver case, 19 Texas Crim. App., 547, are not in point on this question and certainly section 19 of the Bill of Bights is not.
The court, in his main charge, told the jury: “18. The law required that in making an arrest of an accused by any person other than an officer, such person making such arrest shall inform the accused of the purpose for which said arrest was made, and it is made his duty to do so, if he has time or opportunity, and whether or not the person making such arrest has such time or opportunity is a question of fact, to be determined by the jury from all the facts and circumstances in evidence.
“19. If you believe from the evidence that at the time of, or immediately prior to the shooting of R. C. Brownlee, the defendants had committed a felony, as above defined (that is, burglary or attempted burglary), and the same, if any, had been committed in the presence of or within the view of John Garvey or R. C. Brownlee, and if you further find that the said John Garvey and R. C. Brownlee were attempting to arrest the defendants, you are charged as a matter of law, that it was the duty of the said John Garvey and R. C. Brownlee to inform the defendants of the purpose for which said arrest was being made, provided they had the time or opportunity so to do, and if you find that they had such time or opportunity and that they failed so to inform the defendants of the purpose of such arrest, then their attempting to so arrest the defendants would be illegal, and the defendants would have the right to resist such illegal arrest and to use such force
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as was necessary to prevent such illegal arrest, and if you believe from the evidence that it reasonably appeared to the defendants, viewed from the standpoint of the defendants at the time, that it was necessary to take the life of deceased to prevent such illegal arrest, you will find the defendants not guilty.”
We stated the facts" in the original opinion applicable to this question and, as stated therein, the facts were not controverted. This charge of the court was peculiarly applicable to the facts of this case and was all that was required on the subject. There can be no doubt from the evidence that the appellants, within a very short period of time before they killed Brownlee had actually burglarized Bingham’s store and they were practically caught in the act by Garvey, who ran them away from said house, and he, within their view, went directly from where he had run them from to the Garvey Hotel, where Brownlee was. The light from the hotel showed appellants that he went there. The uncontroverted testimony is that he immediately communicated the facts to Brownlee, and together they then went down in front of the hotel, in full view of appellants when they returned in their further attempt to burglarize said store, and when appellants first saw them they immediately desisted from their further attempt to burglarize said store. Both Brownlee and Garvey actually saw them in this last attempt. Appellants knew that they had just burglarized said store and they returned to it in further attempt to burglarize it. When they discovered Brownlee and Garvey watching them they knew they were seen in their attempt. They immediately and hastily undertook to depart. Brownlee and Garvey went out in the street in front of said hotel with the light therefrom shining upon them, showing their persons fully to appellants. Neither Brownlee nor Garvey attempted to conceal themselves, but, on the contrary, put themselves in full view of appellants. Their hailing them to know what they were doing there that time of night was a clear indication to appellants that they had been seen in their attempt to burglarize said store, and from the facts they could draw no other inference than that Brownlee and Garvey were then attempting to arrest them for the burglary and the attempted burglary of which they knew they were guilty. The inquiry of them by Brownlee at the time, under the circumstances, as distinctly told them that they were attempting to arrest them for said crime, whether they were officers or not and whether they had process or not, and the whole of acts of Garvey and Brownlee and what they said to them was as sufficient and complete information to appellants of the purpose of Brownlee and Garvey as if they had in specific language told them at the time: “You have burglarized Bingham’s store and you have just attempted to burglarize that store. We saw you and you know it. We hail you now for the purpose of arresting you and for no other purpose.” Hence, the information given by Brownlee and Garvey to appellants at the time under the circumstances was ample and full, and the jury were clearly justified in not acquitting the ap
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pellants under their claimed self-defense for an illegal arrest even if it could be held to be an attempt to illegally arrest.
“If a party about to be arrested knows the capacity and purpose of the officer it is not necessary for the officer to make known said purpose or in what capacity he is acting. Plaster v. State, 1 Texas Crim. App., 673.” Montgomery v. State, 43 Texas Crim. Rep., 304 ; Smith v. State, supra.
It has frequently been held by this court that an illegal or attempted illegal arrest, and an unlawful restraint of liberty under an illegal arrest, stand upon the same legal plane.
In Miller v. State, 31 Texas Crim. Rep., 609, p. 639 , Miller, in attempting to secure his liberty from an illegal arrest, killed an officer. He was convicted of murder in the first degree with the. death ’penalty inflicted. This court affirmed that judgment. In that case this court said:
“The question at last is, what cause, reason, or motive actuated the defendant in committing the homicide? It is the settled law of this State, that in arriving at a correct conclusion in homicide cases, the killing should be viewed from the defendant’s standpoint; that is, to ascertain as nearly as possible, from the evidence, the reasons and motives which moved or induced the accused to do the killing. It has been held, that an unlawful arrest is esteemed, in lawr, a great provocation. If it be conceded that such provocation constitutes ‘adequate cause,’ under our statute, then, in order to reduce the killing to manslaughter, ‘sudden passion’ must have existed in the mind of the slayer at the time of the homicide; otherwise, the killing would he murder. Massie v. State, 30 Texas Crim. App., 64; Ex parte Jones, ante, p. 422; Ex parte Sherwood, 29 Texas Crim. App., 334; Miller v. State, 32 Texas Crim. Rep., 319 . Such provocation, in the absence of ‘sudden passion,’ may become evidence of a most cogent character and force, showing malice. (Same authorities.) Again, if there exists a provocation unknown to the accused at the time of the homicide, this would not-suffice to reduce the killing below murder. There must be a concurrence of ‘adequate cause’ and ‘sudden passion,’ as defined by our statute, to reduce a felonious homicide to the degree of manslaughter.
“As was said by Judge Hurt in Dyson’s case, 14 Texas Court of Appeals, 454: ‘When the prisoners have been some time in custody, and the informality of the warrant under which they were held was unknown to them, and they deliberately planned and carried out an attack which resulted in the death of one of the officers, this was held murder, and not manslaughter.’ And again, in Sherwood’s case: ‘Because without such knowledge the provocation could have no effect upon him whatever, and hence without such knowledge it is absolutely certain that his passions, if any, were not caused by this provocation.’ 29 Texas Ct. App., 334. This court has further held, that where a party, ‘expecting an attempt will he made to arrest him illegally, deliberately prepares arms for immediate use, and calmly and deliberately deter-' mines to kill the person attempting the illegal arrest, and upon his
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appearance for that purpose does kill him, such killing would be upon express malice; and to hold the slayer guilty upon express malice would not only be law, but common sense and justice.’ Miller v. State, 32 Texas Crim. Rep., 319 .”
We think what is said, which we quoted in the original opinion from Miller v. State, 32 Texas Crim. Rep., 319 , and which is cited and from which a quotation is made in Miller v. State, 31 Texas Crim. Rep., 639 , supra, is peculiarly and specially applicable to this case. And, as shown, appellants, in the dead hours of the night, just after 12 o’clock, burglarized Bingham’s store. They were practically detected in the act by Garvey, and when so detected they immediately and hastily departed therefrom. Garvey went immediately to the hotel and communicated the fact to Brownlee, and they, together, in a perfectly proper way, put themselves in position where they could see appellants if they returned to said building and attempted to further burglarize it. While thus watching, within plain view and close to said building, they saw appellants return to it and further attempt to burglarize, and when appellants discovered that they were thus actually seen in their attempted burglary, they sought to escape and were immediately hailed by Brownlee and Garvey, who were in full view, and in a proper way, sought to arrest them. Appellants actually knew this. They also knejv, not only that they had just before then actually burglarized this house and were run away therefrom, but that they were actually seen by Brownlee and Garvey when they returned about eight minutes later in the further attempt to burglarize it. The evidence, without contradiction, shows "also that they had unlawfully armed themselves each with a pistol, doubtless with the intention to kill anyone who should attempt to arrest them, and when Brownlee and Garvey attempted to arrest them they carried out their deliberately and coolly planned scheme to murder, and did murder Brownlee. Appellants could not have supposed, under the circumstances, which were all within their knowledge, that Brownlee and Garvey were attempting or intending to do anything else but to arrest them for the crimes that they had immediately committed in their view and that Brownlee and Garvey could have had no other purpose or intention.
After a careful re-examination of the record in this case and the law applicable to the facts, which were uncontradicted, we think that the court in the charge properly' submitted every question that the evidence raised, and that the court did not fail to submit properly every question that was raised; that there was no error in the trial of this case that would authorize or legally permit this court to reverse the judgment and that the evidence, without doubt, established the guilt of the appellants as found by the jury. The motion for rehearing is overruled.
Overruled.
DAVIDSON, Judge.
The opinion of Presiding Judge Prendergast discusses at some length the fact that in my dissent I stated that Garvey was on the hotel gallery when the appellants came from behind the
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screen doors of the house mentioned in Garvey’s evidence when, as a fact, it was Brownlee who was on the gallery. Garvey and Brownlee were the two parties engaged in the difficulty with appellants. Had I noticed this discrepancy, or if my attention had been called to it, the necessary correction would have been made. But I was not aware until the rehearing opinion was handed down that the mistake in the names had occurred. Whether Brownlee or Garvey was the party who sat on the gallery is a matter of no moment as will he observed from an inspection of the opinions in the case. I do not care to notice other matters further than I have written.