
    BURKHARDT v. STATE.
    (No. 4855.)
    (Court of Criminal Appeals of Texas.
    April 3, 1918.)
    1. ARREST <&wkey;63(2) — Sheriffs and Constables >&wkey;>20 — Arrest Without Warrant— Authority of Officer.
    Where deceased, at a prior term, had been appointed in writing a deputy sheriff, and the sheriff continued him by oral appointment, and he acted as deputy continuously for a number of years and was generally recognized as deputy, he was a de facto officer, and under Vernon’s Ann. Code Cr. Proc. 1916, art. 262, could arrest without a warrant one who has committed felony and was about to escape.
    2. Homicide &wkey;>276 — Arrest Without Warrant — Authority of Officer — Questions for Jury.
    Whether a de facto sheriff killed by accused hhd received information warranting arrest of accused without warrant held for the jury.
    3. Homicide <&wkey;lll — Arrest Without Warrant-Knowledge of Officer’s Authority.
    Unless accused, who shot a de facto deputy sheriff, knew the capacity in which deceased was acting and his ground for making the arrest, he was not bound to submit to arrest without warrant.
    4. Homicide &wkey;>276 — Arrest Without Warrant — Knowledge of Officer’s Authority-Questions for Jury.
    Whether accused knew of the fact that deceased, who attempted to arrest him, was an officer, held for the jury.
    5. Homicide <&wkey;>lll — Arrest Without Warrant — Right to Arrest — Defense.
    If one arrested for offense was unaware of the officer’s official character and the officer had no time to disclose it, flight would not deprive the accused of the right to defend against an effort to recapture him.
    6. Arrest <&wkey;64^-PRiVATE Person — Necessity of Warrant.
    Under Vernon’s Ann. Code Or. Proc. 1916, art. 376, any person having reasonable ground to believe that property is stolen may arrest the offender and seize the property, whether he is an officer or not.
    7. Criminal Law &wkey;536 —Evidence—Confessions.
    Where accused in attempting to avoid arrest for burglary shot the deputy sheriff, his confession to the burglary after arrest on both charges was admissible in the prosecution for murder, if material.
    8. Criminal Law <®=»536 — Evidence—Admissibility.
    In prosecution for murder of deputy sheriff who attempted to prevent escape of accused after arrest for burglary, accused’s subsequent confession to the cx'ime of burglary was admissible on the question of motive.
    9. Criminal Law .&wkey;419, 420(11) — Hearsay Evidence.
    In prosecution for murder of deputy sheriff while preventing accused’s escape, evidence of third person, who had conversation with sheriff over the telephone at the request of deceased about the propriety of arresting accused, was inadmissible as hearsay.
    10. Homicide &wkey;>112(5) — Self-Defense — Provoking Difficulty.
    The right of self-defense is qualified under the law of provoking the difficulty, where the jury finds beyond a reasonable doubt that the accused intended to provoke the difficulty for the purpose of causing the deceased to attack, and thereupon to kill or do him serious bodily harm, and that in pursuance of such intention he used means reasonably calculated under the circumstances to bring about that result, and that a demonstration or attack upon him by the deceased was so brought on, and that the injury to the deceased was inflicted in pursuance of such original design to kill or to do serious bodily injury.
    11. Homicide <&wkey;300(7), 340(2) — Self-Defense — Provoking Difficulty — Prejudicial Error.
    In prosecution for murder of deputy sheriff who was attempting to prevent escape of accused after arrest for burglary, it was error to qualify the charge on self-defense by the issue of provoking the difficulty in the absence of evidence that accused fled, with the intent to provoke the difficulty, and the error is prejudicial.
    Appeal from District Court, Comal County; M. C. Jeffrey, Judge.
    George Burkhardt was convicted of murder, and he appeals.
    Reversed and remanded.
    
      Adolph Seidemann and W. W. Burnett, both of New Braunfels, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of the murder of Alfred Eischer. The punishment was assessed at confinement in the penitentiary for 50 years.

The homicide grew out of the arrest of appellant. The deceased was a deputy sheriff. The homicide took place on the 10th of March, 1917. In December preceding, the house of one Leuders was burglarized and a watch and chain stolen. On the day of the homicide and a short time before the killing, the appellant was found by deceased in possession of the watch, which was identified by the owner and his wife, who were present. The sheriff instructed deceased to arrest appellant and release him on bail, otherwise to bring him to the county seat. The deceased told appellant that he would have to arrest him unless he gave bond. Appellant attempted to give bond, but failed. Deceased endeavored to assist him. According to the state’s evidence, appellant started to walk away fast. Deceased followed him, laid his hand on his shoulder, and said that he would have to arrest him and take him to New Braunfels. Appellant said he would not be arrested, and in the difficulty immediately following three shots were fired, one of which, according to the state’s theory, entered the leg of deceased and another his breast, producing a mortal wound. One Schlameus was present 'and claimed that after the first shot was fired he took hold of appellant and appellant ran, and as he ran Schlameus struck him with his fist. Appellant was pursued by the deceased and several parties who were present, including Leu-ders, the owner of the stolen property. As appellant was fleeing, deceased fired at him. Leuders, according to his testimony, was in front of deceased, and, after appellant had run about 100 yards in the direction of some brush near the end of the bowling alley, Leu-ders, according to his statement, spoke to appellant, who turned half around and fired two shots in the direction of his own head. Appellant fell on the ground at once after these two shots were fired, and at the same time deceased came up. Deceased’s brother also came and said to deceased that he was afraid that he had killed appellant. Deceased said, “No, he has killed me,” and pulled back part of his coat to exhibit the wound. He immediately fell and died. Appellant claimed that, after he had failed to induce his cousin to sign his bond, he sought permission to see his father, but that deceased and Schlameus took him back into the corner of a saloon and one of them grabbed each of his hands, and that as his left hand was grabbed he drew it out of his pocket with his pistol and fired a shot; that a struggle followed, and-he fired two more shots; that he was struck a lick by some one, managed to get loose, and run for fear they would kill him; that while running he heard a shot fired, which he supposed was fired at him; that he ran around the corner and alongside of the bowling alley, and before he got to the other corner saw a person with a gun drawn on him, and he raised up and fired a shot at him, and just then he stumbled, and as he hit the ground one shot was fired, by whom he did not know, and he then became unconscious. He says he did not know who the man was at the corner that he shot at, but that he fired because he was presenting a gun and he was afraid of losing his life. A doctor reached the scene a few moments later and found deceased, Fischer, in a dying condition from the wound that entered his breast. Appellant had scalp wounds on his head, apparently bullet wounds. There were four holes. Another doctor who examined appellant later said there were three wounds on his head, one of a different nature from the other two; that he removed part of a shell upon the head; that the outer bone of the skull was broken. Appellant claimed that when he was struck at the time of the scuffle he was hit with something hard, and his theory was that one of the wounds on his head was caused by this blow. The state’s theory was that all of them were self-inflicted. Appellant claimed that he was in possession of the pistol for self-protection, and that, as he could use it practically as well with his left as with his right hand, he carried it in his left-hand pocket, because it was likely that in the event of attack his right hand would be first disabled.

The court submitted the issues of murder, manslaughter, illegal arrest, and self-defense. Appellant, through special charges, objections to the court’s charge, and to the introduction of evidence, raises numerous questions touching the law of arrest as applied to the case. He claims that deceased was not an officer, and that the attempted arrest, being illegal, was an assault justifying his acts in firing his pistol at the time of the struggle. He claims, however, that the shots fired by him were not intended to kill, but to induce his release.

It appears that deceased had been acting as deputy sheriff for a number of years; that the sheriff, who was in office at the time of the homicide, had appointed him during the previous term; and that his written appointment was found in the clerk’s office. There was no written appointment during the subsequent term, though the sheriff testified he continued to act as deputy sheriff, and that he had in fact appointed him, though he has not filed his oath as required by law. Objection was made to proof of the subsequent appointment on the ground that the writing was not sufficiently accounted for. In view of the clerk’s testimony introduced by the state showing search for the document, we do not think the record shows error in this respect. There were a number of witnesses who testified that the deceased had been acting as deputy sheriff in the neighborhood of the homicide which was remote from the county seat for six or seven years, and was generally recognized by the public as an officer there. The fact of his so acting, and the other circumstances mentioned in connection with his appointment, we think, was sufficient to sustain the finding that he was an officer de facto. Ex parte Tracey, 93 S. W. 541; Hill v. State, 50 Tex. Cr. R. 619, 100 S. W. 384; Weatherford v. State, 31 Tex. Cr. R. 535, 21 S. W. 251, 37 Am. St. Rep. 828; Brumby v. Boyd, 28 Tex. Civ. App. 164, 66 S. W. 874 ; 29 Cyc. 1.374-1389; Branch’s Ann. P. C. § 1978. Article 262, Vernon’s Ann. C. C. P., is as follows :

Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the person accused.”

We think under this statute with the information that the deceased had he was authorized to arrest the appellant. Cortez v. State, 47 Tex. Cr. R. 16, 83 S. W. 812; Hill v. State, 37 Tex. Cr. R. 415, 35 S. W. 660. What information he had received was a question for the jury. In passing upon the question raised as to whether appellant was resisting a legal arrest, his knowledge of the fact that the deceased was an officer was an element. In other words, unless it was shown that appellant knew the capacity in which the deceased was acting and his ground for the arrest, the appellant was not bound to submit to the arrest without warrant. Lynch v. State, 41 Tex. Cr. R. 513, 57 S. W. 1130; Tiner v. State, 44 Tex. 131; Mooney v. State, 65 S. W. 927; Cortez v. State, 43 Tex. Cr. R. 386, 66 S. W. 453; and other eases cited in Branch’s Ann. P. C. p. 1116. Appellant was a life-long resident of the community in which the officer acted, and whether appellant had knowledge of the fact that he was an officer was a question for the jury. If appellant was unaware of the official character of the deceased, the officer not having time to disclose it, appellant’s flight would not deprive him of the right to defend against an effort to recapture him. Miers v. State, 34 Tex. Cr. R. 186, 29 S. W. 1074, 53 Am. St. Rep. 705; Tiner v. State, 44 Tex. 128; note 66 L. R. A. 372; State v. Phillips, 118 Iowa, 684, 92 N. W. 876.

There is another statute, however, under which, the facts as to the theft being found as claimed by the state, the arrest of appellant would have been authorized without reference to the status of deceased as an officer. We refer to article 376, Vernon’s C. C. P., as follows:

“All persons have a right to prevent the consequences of theft by seizing any personal property which has been stolen, and bringing it, with the supposed offender, if he can be taken, before a magistrate for examination, or delivering the same to a peace officer for that purpose. To justify such seizure, there must, however, be reasonable ground to suppose the property to be stolen, and the seizure must be openly made and the proceedings had without delay.”

See English v. State, 34 Tex. Cr. R. 199, 30 S. W. 233; Porez v. State, 29 Tex. App. 618, 16 S. W. 750.

The law of excessive force touching the acts of the deceased and those with him in making the arrest, and of the defendant in resisting it, was, we think, involved. Alford v. State, 8 Tex. App. 568; Condron v. State, 69 Tex. Cr. R. 513, 155 S. W. 253; Branch’s Ann. P. C. § 1980. These matters were dealt with in the charge of the court in a manner sufficient so far as its correctness is challenged by the objections made. There are some inaccuracies of which complaint was not made.

The complaint that the state was permitted to prove by the sheriff, after the arrest without warning, that appellant confessed the burglary, cannot he sustained. He was under arrest for both the burglary and the homicide. The sheriff’s testimony was to the effect that he confessed that he took the watch and at the same time a chain, giving the locality of this chain, upon which information the chain was found at the place designated by appellant. These circumstances rendered the confession admissible if material in this case. Branch’s Ann. P. O. § 63. The evidence was, we think, material in the homicide case, in that it tended to show motive and to rebut the appellant’s theory and testimony that the shots fired at the time of the arrest were fired with no intent to injure or kill the deceased. The state’s theory was that appellant determined to resist arrest, and fired the fatal shot immediately after the deceased laid his hand upon him. The defendant’s theory and testimony tended to show that the three shots which he fired at that time, or during the struggle, were not fired at the deceased, or at least that none of them were fired at his breast where the fatal wound was inflicted, but that that wound was given deceased at the time that he intercepted appellant in his flight and presented a pistol with which appellant believed the deceased intended to kill him. The fact that appellant was conscious of having committed the crime of burglary, and part of the stolen property was under his dominion, though not upon his person, might tend to aid the jury in solving the controverted question as to his intent in firing the shots at the time of the struggle.

The evidence of a conversation with the sheriff over the telephone, which was testified to by a witness who claimed that before the arrest he, at the request of the deceased, talked with the sheriff about the propriety of arresting appellant, we are inclined to think was .obnoxious to the rule of hearsay.

The court concluded, doubtless correctly, that the facts required him to charge the law of murder, manslaughter, and self-defense. The court qualified the charge on self-defense; in effect, informed the jury that if appellant hilled deceased to prevent serious bodily injury to himself, and quoting “if you do not believe from the evidence, beyond a reasonable doubt, that the defendant willfully and intentionally provoked said difficulty, if he did provoke it, for the purpose of using unlawful violence upon Alfred Eischer,” then they would find that the homicide was not unlawful. Exception was reserved in a proper and timely manner. The right of self-defense is- qualified under the law of provoking the difficulty, where the jury finds beyond a reasonable doubt that the accused intended to provoke the difficulty for the purpose of causing the deceased to attack and thereupon to kill or do him serious bodily harm, and that in pursuance of such intention he used means reasonably calculated under the circumstances to bring about that result, and that a demonstration or attack upon him by the deceased was so brought on, and that the injury to the deceased was inflicted in pursuance of such original design to kill or to do serious bodily injury. Branch’s Ann. P. C. p. 1134, and cases cited; Young v. State, 53 Tex. Cr. R. 416, 110 S. W. 445, 126 Am. St. Rep. 792; Vernon’s C. C. P. p. 459; Wharton’s Crim. Ev. 604; Ruling Case Law, vol. 13, p. 831, §§ 136, 137; McDougal v. State, 185 S. W. 19.

This homicide appears to have grown out of the arrest of appellant, or his attempted arrest, by the deceased and others. Their prior relations were friendly. Prom the evidence of both the state and the appellant it appears that the deceased and others attempted to arrest appellant, or did arrest him, and after his escape attempted to recapture him, and that in one of the phases of the transaction the fatal shot was fired. We find nothing in the case, and counsel has pointed out nothing, which authorizes the submission to the jury of the issue of provoking the difficulty, and we think the court was in error in presenting that theory to the jury. Reese v. State, 49 Tex. Cr. R. 242, 91 S. W. 583; Burnett v. State, 51 Tex. Cr. R. 20, 100 S. W. 381; Smith v. State, 48 Tex. Cr. R. 203, 87 S. W. 151; Morgan v. State, 34 Tex. Cr. R. 222, 29 S. W. 1092; Martinez v. State, 197 S. W. 872. This phase of the charge was probably harmful to the appellant both as to his theory of manslaughter as a defense against murder, and to his claim of self-defense. It was calculated to suggest to the minds of the jury and to impress them with the view that, in the opinion of the trial court, there was evidence which justified them in concluding that the appellant, before the transaction, formed the intent to injure the deceased and willfully shaped his conduct to provoke the deceased into attacking him that he might carry out his intent. Where the issue of self-defense is raised and submitted, its limitation by a charge on provoking the difficulty, without evidence to justify it, has uniformly been held prejudicial error, requiring a reversal. Thomas v. State, 40 Tex. 45; Humphrey v. State, 73 Tex. Cr. R. 433, 165 S. W. 589; Lockhart v. State, 53 Tex. Cr. R. 596, 111 S. W. 1024; Cook v. State, 43 Tex. Cr. R. 188, 63 S. W. 872, 96 Am. St. Rep. 854; McCandless v. State, 42 Tex. Cr. R. 58, 57 S. W. 672; Walters v. State, 37 Tex. Cr. R. 390, 35 S. W. 652: Gilcrease v. State, 33 Tex. Cr. R. 630, 28 S. W. 531; Jones v. State, 17 Tex. App. 611; numerous cases listed in Branch’s Ann. P. C. § 1955.

The judgment of the lower court is reversed, and the cause remanded. 
      <S=oFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     