The opinion
On the facts stated in the opinion prepared by our associate, Judge Lattimore, I concur in the reversal of the judgment. I am not able, however, to adopt all of the reasons that are given in the original opinion as a basis for that result. In my judgment, the charge of the court on the subject of arrest was unduly restricted against the appellant. There may have been no arrest in a legal sense, however, and still there may have been facts which would modify the right of perfect self-defense. I believe that upon another trial the case should be dealt with upon the principles of imperfect self-defense, the court adapting them in appropriate language to the facts in hand. I think that the application of the statute defining the offense of false imprisonment inapplicable to the case. It is not a question of putting the appellant in the attitude of committing that offense, but in determining what offense, if any, he committed in killing the deceased under the circumstances which the record reveals. I do not wish to be understood that the right of perfect self-defense should not be submitted but to convey the idea that the jury should be called upon to determine the evidence whether the law of perfect self-defense or imperfect self-defense should control.
If I properly comprehend the record, the testimony of the Adjutant of the regiment at Fort Bliss touching the circumstances under which a deserter from the United States Army may be arrested was not admissible, in evidence. It is conceived that the right to arrest in time of peace would depend upon the existence of some law authorizing the arrest under the immediate facts. If there be laws of the United States enacted by Congress which govern the right to arrest, of them judicial knowledge will be taken, but if there were no such law, then the Army regulations to which the Adjutant would have testified would seem not to be sufficient to warrant the arrest. In either event, the testimony, in the judgment of the writer, was not competent.
In concurring in the reversal, in view of another trial, it is deemed proper to make these remarks.
(Delivered June 29, 1923.)