
    KELLEY v. STATE.
    (No. 4251.)
    (Court of Criminal Appeals of Texas.
    Nov. 1, 1916.
    Dissenting Opinion, Nov. 22, 1916.)
    1. Ciíiminal Law <&wkey;980(2) — Plea of Guilt* —Evidence.
    Under Code Cr. Proe. 1911, art. 566, providing that when an accused pleads guilty to an offense, if the punishment is not absolutely fixed by law and beyond the discretion of the jury, a jury shall be impaneled to assess the punishment, and evidence submitted to enable them to decide thereon, and a charge requested by defendant and given by the court that, notwithstanding the plea of guilty, the jury must be satisfied of his guilt beyond a reasonable doubt, the state, could introduce all the testimony it had to establish his guilt.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2494, 2495; Dec. Dig. <&wkey; 980(2).]
    2. Criminal Law &wkey;351(3,4) — Admissibility of Evidence — Plight—Resistance to Arrest.
    In a prosecution for crime, the state may prove the flight or attempted flight and resistance to arrest by defendant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 779, 780, 930, 931; Dec. Dig. &wkey;351(3, 4).]
    3. Criminal Law <&wkey;1093 — Appeal — Bills of Exception — Admissibility of Evidence —Evidence in Part Competent.
    Bills of exceptions to the admission of the entire evidence as to resistance to arrest are not sufficient to show error in admitting evidence of the details and circumstances of the resistance.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2828-2833, 2919, 2920; Dec. Dig. &wkey;>1093.]
    4. Criminal Law <&wkey;814(3) — Requested Instructions — Resistance to Arrest — Applicability to Evidence.
    Where the evidence shows that the officers unquestionably had a right to arrest defendant without an assault on a charge of robbery, and that they attempted to do so in a proper manner, requested charges, that resistance to unlawful arrest as therein defined should not be considered a circumstance in determining his guilt of robbery, were properly refused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1979, 1985; Dec. Dig. <&wkey;> 814(3).]
    5. Criminal Law <&wkey;351 (4) — Resistance to Arrest — Legality of Arrest — Evidence.
    In a prosecution for robbery, evidence held to show that the officers whom defendant resisted had a right to arrest him without warrant and attempted to do so in a proper manner.
    [Ed. Note.- — For other cases, see Criminal Law, Cent. Dig. § 780; Dec. Dig. &wkey;>351(4).]
    Davidson, J., dissenting.
    Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge.
    Frank Kelley was convicted of robbery with firearms after entering a plea of guilty, and he appeals.
    Affirmed.
    W. F. Bane and El. J. Gibson, both of Dallas, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PREN DERG AST, P. J.

This is an appeal from a conviction of robbery with firearms, and appellant’s punishment assessed at 99 years in the penitentiary.

This is the second appeal, the first being reported in 185 S. W. 570. The opinion there sufficiently discloses the character of case. No question arises on this appeal on which the judgment was then reversed.

Appellant on this, as on the former trial, pleaded guilty, after being properly and fully admonished by the court of the consequences, and strictly in conformity with the statute. Article 565, C. C. P. He did not testify.

In charging the jury, the court gave that which was specially requested by appellant, which, after stating the character of the charge against him by the indictment and the fact that he had pleaded guilty after being duly admonished, etc., as required by the statute, in a separate paragraph told them;

“Notwithstanding said plea of guilty has been entered by defendant, yet, before you can convict the defendant, you must believe from the evidence beyond a reasonable doubt that the defendant is guilty of the offense charged. * * * ”

Then follows a definition of the offense as prescribed by statute, and requires the jury to believe from the evidence beyond a reasonable doubt that he was guilty before they could convict him. Under this charge, notwithstanding he pleaded guilty, the state had to prove his guilt beyond a reasonable doubt, and it was proper that the state should then introduce all the testimony it had to without doubt show his guilt. It could not be held that the state was thereupon merely to introduce only a part of its evidence to show his guilt. It had the right to introduce all of it. The statute (article 566, O. O. P.) expressly requires that, when an accused pleads guilty, if the punishment is not absolutely fixed by law and beyond the discretion of the jury to graduate the punishment in any manner, a jury shall be impaneled to assess the punishment “and evidence submitted to enable them to decide thereupon.”

It has uniformly and in a great many cases been held by this court, and it is the law, that the state may prove the flight, or attempted flight, of the defendant and the attendant circumstances as a fact to help show the guilt of the defendant. Section 135, p. 78, 1 Branch’s An. P. C., ‘and the cases there collated.

It is equally well settled that where a party is arrested, or sought to be arrested, for an offense, and he resists arrest, it is a legitimate fact to be proved. Mitchell v. State, 52 Tex. Cr. R. 39, 106 S. W. 124; Moreno v. State, 71 Tex. Cr. R. 461, 160 S. W. 361; 2 Jones on Ev. § 287.

There are quite a number of bills of exceptions herein. It is unnecessary to discuss eaeb separately. A nmuber of them present the same question, or such a kindred question, as, that the questions can be determined without separately discussing each bill.

The state introduced several police officers, who participated in arresting appellant a few hours only after the commission of the •offense, and each testified to such a state of facts as to unquestionably show that appellant both attempted to flee, and also that he resisted arrest when they undertook to arrest and did arrest him for the offense charged. Each of appellant’s first several bills quotes in full both on direct and cross examination the testimony of each of these witnesses on the points stated, and states that he objected to the whole of the testimony of each on the ground that it was immaterial, irrelevant, proved another and different offense committed by appellant at another and different time and place, was no part of the res ges-tse of the offense herein, but that if it was admissible for any purpose it was not competent or proper for the state to prove the details and minute circumstances surrounding and accompanying the same. The court in qualifying each of these bills stated that the testimony of said respective officers was admitted for the purpose of showing flight and attempted flight and resistance of an arrest and the circumstances surrounding his arrest on the charge herein. On the previous appeal, we correctly and specially held that this testimony was admissible. The bills in no way point out, or attempt to point out, what the details and minute circumstances were which he claimed were inadmissible. Unquestionably, the testimony of each of these officers, not only tended to show, but did actually show, that appellant, as stated, attempted flight and resisted arrest when these officers sought to arrest him for the heinous crime so recently committed by him, and for that reason their testimony was clearly admissible. If there were any details and minute circumstances in their testimony which were inadmissible, it was the duty of the appellant at the time to specifically object to that part and point it out in his bill, which he did not do. The law is well settled that where evidence is introduced over objection and some of it is admissible and some of it is not, but all is objected to, no error is shown. It is necessary that the objectionable part must be specially pointed out and objected to instead of objecting to the whole. Section 211, p. 135, 1 Branch’s An. P. C.; Martin v. State, 189 S. W. 264, recently decided, wherein we collated and cited the authorities on this point. So that none of appellant’s bills on this subject show any error.

Appellant has other bills to the refusal of the judge to give special charges requested by him. These we consider together. In one, he wanted the judge to instruct the jury that, unless they believed beyond a reasonable doubt that the officers arresting him made known to him the authority under which they were acting, their identity, and the reason for his arrest, it was not unlawful for him to resist such arrest; and if they had a reasonable doubt concerning the officers, or either of them, making known to him their authority and the reason for his arrest, then the resistance on his part was legal.

In another, he wanted the court to charge the jury that the law requires that in making arrests the officer shall always make known to the accused person, if he has time or opportunity, under what authority the arrest is made and the reason for his arrest.

The judge, in qualifying these bills, stated:

“The testimony shows that, at the time the officers knocked on the door of Kelley’s room at the Williams Hotel, Kelley opened the door, looked out, and almost immediately began to shoot; that Police Officer Eimicke was shot before he entered said room; and that Kelley continuously from the time he opened said door shot at Police Officer Erank Smith until said officer left said room.
“The testimony further shows that, after the witness Smith had left Kelley’s room, Kelley slammed the door, went to the window, and looked out on1 the sidewalk; that Police Officer Stepp was standing just below said window on the sidewalk; that said Stepp was in full uniform; that there was plenty of light where he was standing; and that Kelley discharged his pistol in the direction of Stepp, the bullet striking the sidewalk about three feet from where Stepp was standing.
“The testimony of O. M. Ec-raker discloses the fact that, in addition to Police Officer Stepp, Police Officer Yeager was also on the sidewalk and visible from the window, and that said Yeager was in full police uniform.
“The testimony further shows that the witness 0. M. Foraker, subsequent to the firing of the shot of the defendant Kelley that struck the sidewalk near Police Officer Stepp, that the defendant Kelley put his head out of the window, and that Officer Foraker shot at him, the bullet going through the defendant Kelley’s hat.
“On cross-examination the witness Foraker testified that he was in full uniform.
“From the foregoing testimony it is seen that the defendant Kelley, at the time he opened the door to his said room, had full opportunity to see that the men were officers; that they did not have time after the opening of the door to notify Kelley that they were officers, but, on the other hand, Kelley immediately began to shoot upon the opening of said door; that Kelley at the time he was at the window before firing the shot at Stepp had full and ample, opportunity to see both Officers Stepp and Yeager on the street below.”

In another, he wanted the court to charge that if the jury believed said officers, or either, forced an entrance into the room of defendant without making themselves known to him as officers and without stating their purpose, then said officers stood in the same relation to him as any other citizen, and he had the right to defend himself; and if the acts or words, or both, of said officers, created in his mind a reasonable apprehension that he was in danger of losing his life or suffering serious bodily harm at the hands of said officers, or either of them, then he had a right to defend himself from such real or apparent danger, and he was not bound to retreat in order to avoid the necessity of killing them; and if they believed he committed the assault upon said Smith and Eimicke as a means of defense under the circumstances, or if they had a reasonable doubt of it, then that he acted within his legal rights, and his conduct could not be considered as a circumstance against him.

In another, he wanted the court to charge the jury that if they believed that he was at his place of residence, and neither of the arresting officers made known to him their authority as officers or their purpose, then the officers had no authority or right to force an entrance into his room, and that, if they did, their acts were illegal, and he had a right to prevent such intrusion, even to the extent of killing them to prevent their intrusion; or if they had a reasonable doubt of it, and he used no more force than was necessary, he was guilty of no offense, and his conduct at the time must not be considered as a circumstance against him.

The first of these bills just stated the court qualified by stating that there was no evidence in the record raising this issue, and therefore no such charge was necessary. The other, he qualified as follows:

“The testimony does not disclose that the officers attempted to force an entrance into the room of the defendant until after the defendant voluntarily opened the door to said room and had looked out and had seen said officers and had begun to shoot at them; that entrance to said room was not made by said officers until after defendant had begun to shoot, at which time said Frank Smith did force an entrance into said room, was shot by the defendant; and that officer Eimicke in attempting to enter said room was shot by the defendant. There being no testimony in the record that said officers attempted to force an entrance to said room before the defendant began to shoot, the issue contained in the special charge complained of in this bill of exceptions was not raised by the testimony, and a charge thereon was not required.”

In another, he wanted the court to charge that, even though he was guilty of a felony, yet if he was not at the time about to escape, and there was time for the officers to procure a warrant for his arrest, then his arrest without a warrant was illegal, and he had a right to resist, even to the extent of killing the said officers, or any of them, if it was necessary to prevent such arrest, and, if they believed this, then not to consider his acts and conduct as a circumstance against him.

In another, he requested a charge along the same line; and, in still another, he requested another charge along the same line.

The court in qualifying each of these bills said:

“The testimony disclosed by the statement of facts in this case shows that one Dave Weid-ner, who was with Kelley at the time of the robbery of the said J. M. Oaywood, was arrested by Officer Plant at about 12:30 o’clock on the night of the robbery; that said Weidner was thereafter taken to the oil station in Oak Cliff, where he was identified by said Oaywood and others as being one of the men who had robbed said Oay-wood; that said Weidner was from said oil station taken back to the city hall of the city of Dallas; that the said Weidner there informed the officers as to who it was who assisted him in the robbery of said Oaywood about 20 minutes before said officers went to the Williams hotel (which was somewhere in the neighborhood of 3 o’clock in the morning); that said Weidner had told said officers that he and Frank Kelley had the room at said Williams hotel, said room being No. 7. The testimony of the witness Frank Smith shows that, at the time of the arrest of the defendant Kelley, the defendant Kelley was fully dressed.
“From the foregoing testimony it seems that the officers received the information disclosing the identity of Kelley as being one of the men who robbed said Oaywood at a very early hour in the morning; that said Kelley was fully dressed at the time arrested; that he occupied a room in a hotel, and that said officers had been informed by J. M. Oaywood, a reputable person, of the commission of said offense; that one of the principals in the robbery, Dave Weidner, had advised the officers as to the identity of the other man; and that, because of the lateness of the hour and all the facts and circumstances surrounding the transaction, the officers did not have an opportunity to make a complaint against said Kelley and obtain a warrant for his arrest. The issue complained of in said bill of exceptions and as covered by the special charge requested is not raised by the testimony in this case, and no charge was required thereon.”

In his only other bill, he wanted the court to charge that, although the jury might find and believe from the evidence that the said officers had information from a credible person that he had committed the offense charged, and even though they believed they had a lawful right to arrest him, yet if they believed such authority was exercised in such a wanton and menacing manner as to threaten him with the loss of life or serious bodily harm, then he had the right to defend himself as it appeared to him, and he would not be bound to retreat to avoid the necessity of killing them, even though they had the legal authority to arrest him; and if he exercised only such force as was necessary to defend himself, or if they had a reasonable doubt thereof, then not to consider his acts and conduct as a circumstance against him. The court, in approving that bill, did so with this qualification:

“There is no testimony in the record raising the issue embodied on the requested charge of the defendant, the refusal of which is complained of in this bill. The record as shown by the statement of facts discloses that the defendant Kelley, immediately upon opening the door to his said room, began to shoot, and continued to shoot until the witness Smith had retired from said room to the hall; that Kelley thereupon slammed the door to his said room, went to a window of said room, and discharged his pistol out of said window in the direction of Police Officer Stepp, who together with Police Officer Yeager were in full uniform standing beneath said window; that the bullet struck the sidewalk within three feet of the said Stepp; that Officer Fora-ker, subsequent to the firing of this shot by said Kelley, fired a shot at Kelley from the window of the room adjoining the room which Kelley occupied; that at the time of firing said shot Kelley’s head was protruding from the window of said room, the bullet from Foraker’s gun going through Kelley’s hat; that, immediately upon Kelley’s hat being pierced by said bullet, said Kelley called out and said to the officers, T give up,’ and permitted said officers to take him into custody.”

Some of these charges announced correct legal propositions in a proper case where the evidence would make them applicable, but they were inapplicable in this case. As qualified by the court, neither of his bills presents any reversible error. We think it unnecessary to discuss any of these matters. Cortez v. State, 43 Tex. Cr. R. 386, 66 S. W. 453; Smith v. State, 48 Tex. Cr. R. 239, 89 S. W. 817; Miller v. State, 32 Tex. Cr. R. 319, 20 S. W. 1103; Miller v. State, 31 Tex. Cr. R. 639, 21 S. W. 925, 37 Am. St. Rep. 836; Stewart v. State, 174 S. W. 1077. As stated, appellant himself did not testify at all. ITe had no defense whatever. He plead guilty. Under the circumstances of this case, there can be no doubt that appellant committed the crime alleged against him. He attempted to secrete himself under an assumed name in another part of the city of Dallas from where he had committed the crime. There can be no doubt .but that he anticipated and momentarily expected the officers would attempt to arrest him for the crime, whether with or without a warrant; that he deliberately prepared himself to flee from the room where he was whenever he discovered that they were after him, and prepared himself to shoot and kill them when they did attempt to arrest, him, and did actually shoot two of them and shot at another as long as he had ammunition and could shoot. The officers unquestionably had the right to arrest him without a warrant, and attempted to do so in a proper manner under the circumstances of this ease. Their action merits commendation and not condemnation.

The judgment is affirmed.

DAVIDSON, J. I cannot agree this case should be affirmed under the record as shown by the transcript.

DAVIDSON, J.

(dissenting). I desire to say I cannot agree with my Brethren that all the facts in detail in regard to the assault case in cause No. 4162 were admissible in this case. That case has no connection with the robbery case, so far as defendant is concerned. The robbery case had ended; he pleaded guilty to the robbery. When the robbery occurred, he and his companion went away over to Dallas three or four miles distant; appellant going to bed. That transaction was completed. The robbery was a finality. If it was thought necessary or legal to introduce the fact that he assaulted the officers, certainly the details of it ought not to have been admitted. We have an old familiar rule where an extraneous crime or offense, or one thought to be a crime or offense, is used by the state, that the details and history of the case cannot be developed in the case on trial. Two cases were being tried at the same time against appellant, the robbery case at Oak Cliff, and the assault case in Dallas. It was not necessary to make the robbery case understood in any manner to introduce the details of the transaction in Dallas, where the officers went to appellant’s room and had the shooting scrape with him. What effect it may have had on the minds of the jury cannot be told except in the light of the verdict in the robbery case, which is 99 years. With the details of the assault case out of this record, the verdict may have been much less; but we do know that he was awardéd 99 years, and this testimony may have produced the heavy verdict. In the judgment of the writer, it was clearly inadmissible. Appellant pleaded guilty to the robbery. The details of the robbery itself were admissible, of course, because the statute provides that in cases of pleas of guilty, among other things, evidence shall be introduced before the jury. Evidently the state thought defendant might escape with a smaller punishment for the robbery, or might not get as heavy punishment as desired. A sufficient amount of the details of the robbery should have gone to the jury so that they might arrive at a fair conclusion as to the amount of punishment to be meted out on account of the robbery. A case should not be burdened with the details of an assault and shooting scrape case occurring at different times and places. I do not believe appellant has had that fair trial accorded him by the law. Therefore, I cannot agree to this affirmance. I do not care to pursue the matter further. I respectfully enter my dissent 
      <te»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     