
    CRIPPEN v. STATE.
    (No. 4196.)
    (Court of Criminal Appeals of Texas.
    Nov. 8, 1916.)
    1. CRIminax. Law &wkey;1173(3) — Appeal and Error — Instructions—Harmless Error.
    The erroneous refusal of instructions on the issue of assault with intent to kill will not be reviewed, where conviction'was for the lesser offense of aggravated assault.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3166; Dec. Dig. <S&wkey;1173(3)J
    2. Criminal Law &wkey;>390 — Evidence—Admissibility.
    Where testimony of defendant on trial for assaulting a police officer with intent to- kill tended to show malice of such officer in arresting defendant without warrant, evidence of the rules of the police department and its custom. of making arrests without warrants held admissible to show good faith of the officer assaulted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 858; Dec. Dig. <&wkey;390.]
    3. Criminal Law <&wkey;390 — Evidence—Admissibility — Ordinances.
    For the same reason, an ordinance, authorizing the marshal to make arrests without warrant, was admissible, such ordinance applying, not only to the marshal, but to all policemen under him.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 858; Dec. Dig. <§^>390.]
    4. Criminal Law <&wkey;390 — Evidence—Admissibility — Ordinances.
    So, also, an ordinance, making it an offense for any person to appear in certain public places in company with a common prostitute, was admissible as showing good faith of the officer in arresting defendant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 858; Dec. Dig. <©=»390.]
    5. Arrest &wkey;>63(l) — Searches and Seizures <&wkey;7 — Authority to Arrest without Warrant — Validity op Statute.
    Statutes, authorizing arrests without warrant by peace officers, and authorizing municipal corporations to establish rules authorizing such arrests, are not invalid by reason of Const, art. 1, § 9, prohibiting unreasonable seizures.
    [Ed. Note. — For other cases, see Arrest, Cent. Dig. §§ 145, 151-156; Dee. Dig. <&wkey;63(l); Searches and Seizures, Cent. Dig. § 5; Dec. Dig. <&wkey;7.]
    6. Homicide <&wkey;158(l) — Evidence—Admissibility.
    In a prosecution for assault with intent to kill, evidence of threats made by defendant prior to the assault are admissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 293 ; Dec. Dig. <&wkey;>158(l).]
    7. Criminal Law &wkey;>778(5), 815(9) — Trial— Instructions — Self-Defense.
    In a prosecution for assault with intent to kill, an instruction that defendant was entitled to be acquitted if the jury believed that he committed the assault as a means of defense, believing that he was in danger of losing his life or of serious bodily injury, held not erroneous as ignoring' the doctrine of reasonable doubt or shifting the burden of proof.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1849, 1967; Dec. Dig. <&wkey;> 778(5), 815(9).]
    8. Homicide <&wkey;300(7) — Trial — Instructions — J ustipication.
    In a prosecution for assaulting a .police officer with intent to kill, a, requested instruction that the arrest of defendant without warrant by such officer was adequate cause, justifying or excusing the assault, was properly refused, where the assault was committed about 25 minutes after defendant’s arrest, and after his confinement thereunder had terminated.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 622; Dec. Dig. <&wkey;>300(7).]
    9. Criminal Law &wkey;>829(5) — Teial — Instructions— Justification.
    In a prosecution for assaulting a police officer with intent to kill, where the court properly submitted the issue of self-defense without limitation by a charge on the issue of provocation, it was not error to refuse an instruction that defendant, after being arrested by such officer without warrant, had a right to arm himself and seek such officer to demand an explanation.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dee. Dig. &wkey;829(5).]
    10. Homicide <&wkey;295(l) — Trial — Instructions — Provocation.
    In a prosecution for assaulting a policeman with intent to kill, where the assault was committed subsequent to defendant’s arrest without warrant by such officer, a requested instruction that such arrest was illegal, unwarranted, and in. effect a species of aggravated assault, constituting great provocation, was properly refused.
    [Ed. Note. — For other eases, see Homicide, Cent. Dig. §§ 606, 607; Dec. Dig. &wkey;295(l).]
    11. Criminal Law <&wkey;783(l) — Trial — Instructions.
    In a prosecution for assault with intent to kill, an instruction that uncommunicated threats against the life of defendant may be considered in ascertaining the condition of mind of the party assaulted at the time of the assault held_ erroneous, in not permitting the jury to consider such uncommunicated threats for other purposes, particularly as corroborating evidence of communicated threats and as shedding light upon the question of who was probably the aggressor.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1872-1874, 1876; Dec. Dig. &wkey;783(l).]
    12. Homicide &wkey;271 — Trial — Province oe Court and Jury. . |
    . In a prosecution for assault with intent to kill, the issue as to who began the difficulty is a question for the jury which the court cannot decide, nor take away.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 565; Dec. Dig. &wkey;271.]
    Appeal from District Court, McLennan County; Richard I. Munroe, Judge.
    Wesley Crippen was convicted of aggravated assault, and appeals.
    Reversed and remanded.
    Williams & Williams and Edgar Harold, all of Waco, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Under an indictment and trial for an assault to murder J. R. Spillers, a police officer of Waco, appellant was convicted of an aggravated assault, and his punishment assessed at two years in the county jail.

The testimony on behalf of the state by a preponderance would show a most aggravated case of an assault with intent to murder, an attempted assassination, and would show such, a state of fact as to exclude manslaughter if Spillers had been killed. On the other hand, by his own testimony, supported by some other, appellant showed such a state of fact as to show that if he had succeeded in killing Spillers, his offense would have been no higher than that of manslaughter, thereby raising the issue of aggravated assault. On this point the jury acquitted him of assault to murder, and found him guilty of aggravated assault, as stated. Appellant introduced testimony of threats against him by Spillers, both communicated and uncommunicated. In his testimony, Spillers denied all such threats, testifying that he made none of them. Appellant by practically his testimony alone raised the issue of self-defense from apparent danger. The testimony of the state by Spillers and other eyewitnesses would exclude self-defense.

Appellant assigns a large number of claimed errors — a good many to the admission of testimony, others, to various paragraphs of the court’s charge, and still others to the court’s refusal to give some of his special charges. As most of his refused charges and some of his complaints as to the court’s charge were solely with reference to the question of an assault with intent to murder, and as he was acquitted of that offense, they pass out and are not discussed.

The shooting occurred on the night of July 28, 1915. In the claimed discharge of his official duties Spillers arrested appellant on October 1, 1914, for a minor offense against the city ordinances of Waco. Again, .early in December following, he again arrested him for the violation of another city ordinance. The arrest in both instances was made without Spillers having a warrant for appellant’s arrest at the time. Appellant was tried the next day after his first arrest in the city court and acquitted. He was tried under the second arrest on December 8, 1914, and convicted. He appealed that case to the county court. The charge in that case .was vagrancy. After the said appeal, twice before July 28, 1915, appellant forfeited his bond. On July 28th, when his case was again called, at which time it was set for trial, he failed to appear, and his bond was again forfeited. Spillers was a witness against him in that case, and was present when this last forfeiture was taken. The assistant county attorney in charge of that prosecution and other officers in the sheriff’s department at the time instructed Spillers that if he could find appellant, to again arrest him so- as to have him present the next morning for trial. No warrant for his arrest was issued, and Spillers had none that night when he again arrested him in compliance with his instructions from said officers. He found him that night in the reservation district of Waco and arrested him. Appellant did not resist arrest at that time, nor did he attempt to escape while arrested and in custody. When arrested on this occasion, appellant by his own testimony abused and cursed Spillers in the most outrageous way, and offered and wanted to fight him, if Spillers would take off his pistol. Spillers called for the officer in charge of the hoodlum wagon for the purpose of transferring him to the jail and confining him.therein. The officer with this wagon soon appeared. Appellant .got on it and with that officer went to jail. Spillers did not go with them, and had nothing more to do with the matter. Within a very few minutes, three or four he says, he was ordered released by a deputy sheriff, and was released from jail and from this arrest. Appellant is shown then to have, in effect, stated he was going to arm himself and kill Spillers. He proceeded to hunt up a shotgun and shells with large shot, loaded his gun, and went to hunt Spillers to kill him, found him, shot him three times, the three loads taking effect in Spillers’ body, wounding him most dangerously, shot at him a fourth time, but missed him, and then fled.

Appellant contended, and so testified' and introduced other testimony somewhat tending to support him, to the effect that each of said arrests by Spillers of him, and especially on the night of July 28th, was because of Spillers’ malice towards him, and done to humiliate, embarrass, discredit, punish, and impose upon him, and that he was using, and had used, his official position as a policeman to accomplish these purposes and to run over and overawe him; that Spillers’ said actions and conduct were not actuated by any desire on his part to discharge his duties as a policeman, but were solely for the-purposes stated. With these issues thus made by appellant, we think all the testimony of Spillers himself, and of the various officers, of the city and county, to the effect that all arrests by the police officers of said city were made without warrants, and that the police officers were so instructed to make arrests without warrant by their superior officers, and that Spillers was instructed by the assistant county attorney and the other-officials to arrest appellant on this occasion— in other words, all such testimony as would show, or tend to show, the reverse of appellant’s contention as just stated, and that Spillers was acting in good faith in the discharge-of his duties as a policeman — was admissible. This disposes of a large number of appellant’s, bills of exceptions to the admission of testimony on these lines. The court properly admitted said testimony on the question of the motive of Spillers in making said arrest, and restricted the jury to the consideration thereof for that purpose alone.

If appellant had resisted said arrest at the time it was made, or had attempted to relieve-himself of arrest after being arrested, and at that time had shot Spillers, his rights would have been very different from what they were-under the unquestioned facts shown by this. record. He did not then shoot Spillers, nor attempt to shoot him, but shot him some 25 minutes to an hour thereafter, and after he had been entirely released and relieved from all arrest. It is unnecessary, therefore, to discuss what his rights would have been if the shooting had occurred when he was arrested, or during his confinement under that arrest by Spillers.

Our Constitution (section 9, art. 1) guarantees:

“The people shall be secure in their persons * * * from all unreasonable seizures.

Our law has all the time, and especially since our Codes were adopted in 1856 (articles 259-263) expressly authorized arrests by peace officers in a great many instances without warrant, and expressly authorized municipal corporations to establish rules authorizing arrests without warrant in a great many instances. These statutes have uniformly been sustained by all the courts as constitutional. 2 Branch’s Ann. P. C., pp. 1114, 1115.

No error is shown in the court’s action in admitting the testimony complained of by appellant in his bills from 2 to 11, inclusive, and 15, along the lines mentioned. As qualified by the court and as shown by the record, the court correctly admitted the testimony of a threat by appellant against Spillers, objected to in appellant’s twelfth bill.

The ordinance of said city giving the marshal thereof authority to arrest without warrant, complained of in appellant’s thirteenth bill, was admissible. We think it applied, not only to the marshal personally, but to all policemen under him in the city. Another ordinance of the city making it an offense for any person to appear in certain public places mentioned in company with a common prostitute was also admissible. This ordinance, while it may not have specifically covered the first offense for which Spillers arrested appellant, yet had a bearing upon the good faith of the officer in making the arrest, was admissible along the same line as covered by his bills above mentioned.

After giving the seventh paragraph of the charge on self-defense, the court in the eighth gave this:

“If you believe that the defendant committed the assault as a means of defense, believing at the time he did so (if he did do so) that he was in danger of losing his life or of serious bodily injury at the hands of said J. R. Spillers, then you will acquit the defendant, and say by your verdict, ‘Not guilty,’ or if you have a reasonable doubt thereof, you will acquit Mm.”

This did not shift the burden of proof to appellant, nor ignore the doctrine of reasonable doubt as applied to a defense, as complained of in one of appellant’s bills. This paragraph of the charge was a correct'enunciation of the law applicable in this case.

Nor did the court err in refusing to charge, as appellant complained he should, that the arrest of appellant on said night of July 28th was of itself adequate cause. If the shooting had occurred at the time of the arrest, or while appellant was under arrest, and in an attempt to secure his liberty therefrom, such charge might have been applicable, but the court gave the proper charge on the subject, submitting to the jury for them to determine from all the facts and circumstances whether or not adequate cause existed so as to reduce the offense from assault to murder to aggravated assamlt.

The court did not err in omitting to charge, in substance, that the appellant had the right to .arm himself and seek Spillers for any explanation, as complained of in appellant’s twenty-third bill. The court submitted self-defense, and did not limit in any way such issue with a charge on provoking the difficulty. The law is settled that if the court in his charge does not limit the accused’s right of self-defense by a charge on provoking the difficulty, or otherwise, but submits his right of self-defense on every defensive theory, it is not error to refuse to charge on his right to arm himself and seek an explanation. Williford v. State, 38 Tex. Cr. R. 396, 42 S. W. 972; Harrelson v. State, 60 Tex. Cr. R. 539, 132 S. W. 783; Holmes v. State, 69 Tex. Cr. R. 588, 155 S. W. 205; Fox v. State, 71 Tex. Cr. R. 322, 158 S. W. 1141; Strickland v. State, 71 Tex. Cr. R. 585, 161 S. W. 110; Carey v. State, 74 Tex. Cr. R. 117, 167 S. W. 366; Ford v. State, 177 S. W. 1176.

As the record presents this case, it was unnecessary, and it would have been improper, for the court to have told the jury that the said arrest on July 28th was illegal, unwarranted, and regarded by the law as a great provocation and a species of aggravated assault, as contended by appellant should have been given. As stated, if the shooting had occurred at the time of the arrest, or an attempted release therefrom, such charge might have been proper, but the shooting did not then occur, but occurred at such a time thereafter as to make such charge improper.

In a separate paragraph, the court charged the jury thus:

“Uncommunicated threats, if any, against the life of a person accused of assault with intent to murder, may be considered by the jury in ascertaining the condition of the mind of the party assaulted at the time of the shooting.”

Appellant at the proper time and in the proper way excepted to this charge, and in every way properly preserved and presented the question. His specific objection, among other things, was that it was more restrictive than is the law, and prevents the jury from considering said uncommunicated threats for other legitimate purposes, and especially for the purpose of corroborating the evidence of communicated threats and throwing light upon who probably began the difficulty. In our opinion, appellant’s complaint is correct, and requires a reversal of the judgment. Unquestionably, there was testimony of repeated threats which were uncom-mumcated as well as threats which were communicated. Both were denied by Mr. Spillers. The effect of ■ the charge was to restrict the jury to the consideration of un-communicated threats for the sole purpose of ascertaining the assaulted party’s condition of mind, and prevented its consideration for the purpose of corroborating other evidence of communicated threats which were denied by Spillers, and prevented the jury from considering it for the purpose of determining who probably began the difficulty at the time of the shooting. The appellant’s testimony, perhaps, alone raised the latter question, and it may be that the great preponderance of the testimony was against him on this issue, and the jury might not, and probably should not, have believed him on that issue; but this was a question which the court could not decide nor take away from the jury. They had the right to do this. The court should not have charged on the subject of uncommuni-cated threats at all. Howard v. State, 23 Tex. App. 278, 5 S. W. 231; King v. State, 9 Tex. App. 556; Reeves v. State, 34 Tex. Cr. R. 486, 31 S. W. 382; Wallace v. State, 44 Tex. Cr. R. 303, 70 S. W. 756, 100 Am. St. Rep. 855; Poole v. State, 45 Tex. Cr. R. 348, 76 S. W. 565; Adams v. State, 47 Tex. Cr. R. 355, 84 S. W. 231; Bethune v. State, 49 Tex. Cr. R. 166, 90 S. W. 1014; Underhill’s Crim. Ev. (2d Ed.) § 326, and authorities there cited.

For this error in the court’s charge, the judgment is reversed, and the cause remanded. 
      <8=oFor other cases see samertopic and'KEY-NUMBÉR iú all Key-Numbered Digests ahd Indexes
     