
    LOGAN v. STATE.
    (No. 10706.)
    Court of Criminal Appeals of Texas.
    March 9, 1927.
    Rehearing Granted June 15, 1927.
    1. Criminal law <@=>823(6) — Instruction in homicide case that officer making arrest is justified in act necessarily done held cured by instruction on reasonably necessary force.
    Erroneous statement of court in instruction that officer making arrest is justified in any act necessarily done held cured, in prosecution for assault with intent to murder, by instruction that jury must find person called to assist in arrest used only reasonably necessary force.
    2. Homicide <@=>111 — One accompanying officers to assist in seizing person, who allegedly shot another in deputy’s presence, could, without warrant, use reasonably necessary force to secure arrest (Code Cr. Proc. 1925, arts. 95, 212).
    Where shooting occurred in presence of deputy constable, person commanded by constable and deputy to go with them and assist in seising and arresting person accused, under C. O. P. 1925, art. 95, had right, while with them, to use reasonably necessary force to secure arrest and detention of accused, though arrest was attempted without warrant, in view of article 212.
    3.Homicide <@=>300(3) — Instruction that jury should consider ail evidence to determine whether defendant had adequate cause to shoot person attempting arrest held sufficient.
    In prosecution for assault with intent to murder, in which defense was that defendant, accused of shooting person summoned to aid in arrest, acted in self-defense, instruction that jury could consider all facts and circumstances in evidence to determine question of adequate cause held sufficient.
    Criminal law <@=>923(1) — Inability of juror to read and write held not to warrant new trial.
    Fact that juror sitting in case was unable to read and write held insufficient ground for granting new trial.
    On Motion for Rehearing.
    5. Homicide <@=>300(14) — In prosecution of negro for assault with intent to murder person attempting to arrest him, failure to submit defendant’s right to act on appearance of danger held error (Code Cr. Proc. 1925, art. 95).
    In prosecution of negro for assault with intent to murder person ordered by constable to aid in his arrest, under Code Cr. Proc. 1925, art. 95, failure of court to submit, in connection with issue of self-defense, defendant’s right to act on appearance of danger held error where-defendant, after shooting white man and fleeing to his father’s house in fear of mob, was confronted in dark by prosecuting witness with pistol in his hand.
    Commissioners’ Decision.
    Appeal from District Court, Franklin County; R. T. Wilkinson, Judge.
    J. H. Dogan was convicted of assault with intent to murder, and he appeals.
    Reversed and remanded.
    Ramey & Davidson, of Sulphur Springs, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   BETHEA, J.

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, some one 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 Rut-land 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. Yernon he heard some •one 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, IT, 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 article 212, O. O. 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. Article 241, O. O. P.

Article 95, C. O. P., reads as follows: .

“When any officer authorized to execute pro-' cess 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 Mt. 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 article 95, C. C. P., the injured party, Rut-land, 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 article 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 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 o£ 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. Cr. R. 325, 33 S. W. 364.

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. Cr. R. 147, 189 S. W. 145.

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

PER CURIAM. 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.

On Motion for Rehearing.

LATTIMORE, J.

The court charged the jury on self-defense; the charge was excepted to as only presenting said issue from the viewpoint of an actual attack by Rutland, the injured party, and not from the viewpoint of apparent danger. In paragraph 8 of the charge, in laying down the general principles applicable, the court told the jury that a party can use such force as is necessary if it appears to him from his standpoint at the time that he is in danger; but in paragraph 9 of the charge, applying this general principle to the facts in the particular case, the learned trial judge told the jury that, if they ■believed “Rutland had made an attack on him,” etc., they should acquit. Manifestly, this is not a correct announcement of the law applicable to the rights of the accused, if the facts showed, or tended to raise the issue, that he believed Rutland, or the man confronting him as he entered his father’s house, had a pistol in his hand, and if they believed it reasonably appeared to the appellant from his standpoint at the time that his life was in danger from a threatened attack by the party having such pistol. Appellant swore that he thought a mob was after him at the time. He said he had heard some one call out to “kill that negro,” as he fled from the scene of a prior trouble. Mr. Rutland testified that he had known appellant eight or ten years, but did not recognize him that night when they met in the smrd just before the shooting. Witness further swore that he told the man approaching to stop and throw up his hands and consider himself under arrest. Appellant swore that he did not hear Rutland make any such statement.. He further said the first man he saw when he approached his father’s house that night was after he had been shot.

In this condition of the record, the court gave paragraph 19 of the charge, which is as follows;

“However, in this connection you are instructed that if you have a reasonable doubt as to such fact that -the defendant did not know that B. M. Rutland was attempting to arrest him in a lawful manner and with lawful authority to do so, if you find he was so doing, or was attempting to prevent his escape and was acting lawfully in doing so, if you find he was so doing, if he was trying to escape, then, in that event, the defendant would have a right to defend himself, as defined to you in preceding paragraphs of this, charge.”

This was excepted to as shifting the burden of proof and as not presenting appellant’s right of self-defense from the viewpoint of the defendant. It is clear that the concluding part of said paragraph quoted, wherein the right of the accused to defend himself is given him only “as defined in preceding paragraphs of ths charge,” in the event the jury are not satisfied that he knew Mr. Rutland was lawfully attempting to arrest him, must relate back to and be passed on in the light of the right of, self-defense as given in paragraph 9, above referred to. Reference to paragraph 9 shows that the right of self-defense was given only against an attack which had been made by Rutland.

Admittedly, from the standpoint of the state’s testimony, appellant shot only after he was accosted by Rutland, who admitted that he had his pistol in his hand at the time. Appellant testified that he was scared, and run down, that he thought a mob was after him, and that he did not know what he did at the time of the shooting. Appellant was a negro and had shot a white man on the same evening and shortly preceding this shooting for which he stands charged, but it is undisputed that the white man had repeatedly kicked appellant’s sister on a public street before appellant shot him, and had assaulted appellant himself; and if the relative position of the parties be reversed, and it appear that appellant was.a white man and that a negro had kicked the sister of appellant on a public street shortly before the shooting in question, such an insult to a female relative would likely have been regarded as sufficient cause for belief in tbe existence of that degree of anger, rage, and resentment sufficient to put the mind of the defendant in a manslaughter condition, had the kicker been killed. The learned trial judge in this case charged on manslaughter, but we are constrained to believe that he erred in not pertinently submitting to the jury the law of appellant’s right to act on the appearance of danger. When appellant shot he was trotting toward his father’s house, having run or rapidly come a distance of about four miles from a town in which he had had a serious personal difficulty with a white man. As he approached his father’s house a man confronted him in the dark with a pistol in his hand, and, from the state’s standpoint, appellant then shot said man. These facts tend to support the issue of a shooting in self-defense upon the appearance of danger.

Upon more mature consideration, we have arrived at the above conclusion, and feel that the original opinion, in so far as it fails to announce the conclusion now arrived at, was wrong. The motion for rehearing is granted, the judgment of affirmance is set aside, and the cause is now reversed and remanded. 
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