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lant to the jury as a felon--a burglar. What Wright stated to the deceased was not competent. Deceased had no right to attempt the arrest. That the deceased was a good man had nothing to do with this.
The court instructed the jury upon self-defense properly, but added the following: “And in this connection you are further told that if you find that Burnett first assaulted defendant by drawing his gun to fire, and not to halt defendant, then the law presumes that he intended to inflict serious bodily injury or to kill the defendant.” But suppose he drew his gun (which he never did), pointed it at the defendant, and called for him to halt, intending, evidently, to kill him if he did not halt, what would the law presume then? The law would make no presumption, because none would be needed, especially when deceased unlawfully shot the defendant. The charge was wrong. It was calculated, when considered in connection with the statement made by deceased to Wright, to induce the jury to believe, that if deceased's intention was to rearrest the appellant, he had the right to do so. That it was the intention of the court to convey this idea is evident from the following charge: “You are further instructed that if you believe from the evidence that the defendant, Alf Miers, had submitted to his arrest by Riley Burnett, and, after such submission, broke away from the custody of said officer with the intent to escape from the arrest to which he had submitted, that the officer, Riley Burnett, had the right to prevent said escape.” A is arrested by a private person without authority. A did not resist the arrest. A has no right to escape from such an arrest, and hence the person making the illegal arrest is vested with the authority of a full-fledged officer, armed with all proper authority, and A must go with the trespasser wheresoever he desires, and can obtain relief by habeas corpus, we suppose, if his consent has not deprived him of this right. We defy the production of a single authority in support of this proposition. Such a doctrine would be sweet to the highway robber. He would select his time, arrest his man, take him to one side for the purpose of fleecing him,and the prisoner would have no right to regain his liberty, because he had yielded to the arrest without resistance; nor could any other persons intervene, for they would have no greater or other rights than the prisoner. This charge vamps paragraph C of the main charge, which reads: "But if a person submit to arrest, and acquiesce in the authority of the officer to make the arrest, he waives every objection or right he may have made to any irregularity or illegality in the same or the arrest; and if thereafter he breaks away from the
officer he acts unlawfully, and in a conflict between him and the officer consequent thereon, he, in law, would be the aggressor; and if, by his conduct 190 [what conduct? running, we suppose], or with deadly weapons, he leads the officer to reasonably apprehend danger to life or serious bodily harm, he cannot invoke the law of self-defense in any subsequent conflict.”
When we read this instruction to the jury, we can account for the verdict of guilty in this case. Now, in regard to this charge, we have this to say, that it is not law, but an outrage upon law. A citizen is illegally arrested without resistance. He attempts to regain his liberty by flight. He is the aggressor if he should shoot the trespasser to save his own life-shoot and kill the man who was and had been in the very act of killing him, because he was attempting to release himself from the, in law, real aggressor.
The appellant was convicted of murder of the second degree; his punishment was fixed at confinement in the penitentiary for the term of twenty-five years. This conviction has no support in the evidence. It is evidently against not only the great weight of testimony, but against all of the evidence. We close our observations in regard to this case with the language of Messrs. Horrigan and Thompson in their note to the case of Myers v. State, 33 Tex. 525: “This seems to be one of those unfortunate cases where not only the plain rules of law, but the very right and justice of the case, have been violated, and, what is worse, violated against the overwhelming preponderance of the testimony, and that presumption which the law humanely indulges in favor of the innocence of every man who is put upon trial for crime.”
The judgment is reversed and the cause remanded.
ARREST-ILLEGAL-RIGHT TO RESIST.-A person is not required to submit to illegal arrest, but may demand the warrant or proper authority, and in its absence repel force by force, provided the force does not exceed prevention and defense: Miller v. State, 81 Tex. Crim. Rep. 609; 37 Am. St. Rep. 836, and note. One unlawfully sought to be arrested, who, without malice and to prevent such arrest, kills the party seeking to arrest him, is not guilty of murder but of manslaughter only: Cryer v. State, 71 Miss. 467; 42 Am. St. Rep. 473, and note. See, also, the notes to Croom v. State, 21 Am. St. Rep. 187, and State v. Scheele, 14 Am. St. Rep. 120.
TRIAL-INSTRUCTIONS.-Where a trial court throws aside all instructions asked for by one or both of the parties, and gives instructions of its own, the latter must fairly instruct the jury on all legal questions involved in the case: Wacaser v. People, 134 Ill. 438; 23 Am. St. Rep. 683. It is the duty of the court to charge the jury on the law applicable to every phase of the testimony adduced on the trial: Jones v. State, 33 Tex. Crim. Rep. 492; 47 Am. St. Rep. 46, and note.
DUNN v, STATE.
(84 TEXAS CRIMINAL REPORTS, 257.) CORPUS DELICTI-PROOF OF.-The corpus delicti cannot be established by the confession of defendant alone, but, taken in connection with evidence of his flight and other facts connecting him with the crime, the proof may be sufficient.
LARCENY-INTENT-APPROPRIATION.-If the property of another is taken with intent, on the part of the taker, to retain it until he is paid a reward for its restoration to its owner and in the event of not receiving such reward, not to return it at all, the taking Is larceny.
LARCENY – INTENT – APPROPRIATION.- If one person takes the property of another with intent to hold it for the purpose of obtaining a reward for its return, but without any intention of depriving the owner of the property permanently, and with intent to return it in case no reward is offered, the taking is not larceny.
M. Trice, assistant attorney general, for the state.
258 HENDERSON, J. The appellant in this case was tried in the district court of Tarrant county on an indictment charging him with theft of a horse, and was convicted, and his punishment assessed at confinement in the penitentiary for a term of five years.
The appellant contends in this case that the "corpus delicti” is dependent alone on the confessions of defendant, and that the conviction cannot be sustained in such case without other proof. From an inspection of the record, we find from the testimony of the owner that this horse in question was kept in an inclosure with another horse, his mate, and to which he was very much attached, and they were never known to separate from each other of their own accord; that the two 268 horses were placed by the owner in the inclosure on the night in question; that the next morning the gate of the inclosure was found open, and the horse charged to have been stolen was missing, and has never been seen by the owner since. On the same night, about 1 o'clock, two witnesses testify to seeing the defendant riding along the railroad track near them, and leading a bay or brown horse, which answered to the description of the horse of the prosecutor. The defendant is shown by other testimony, before the alleged theft, to have suggested to one or two parties that they take horses and hide them out, and hold them for any reward that might be offered by the owners. After the horse in question was missed, the defendant is also shown to have suggested to the prosecutor that he should offer a reward for his missing horse. While it is true that the corpus delicti cannot be proven by the confessions of a defendant, yet, to our minds, the testimony, outside of the defendant's confessions in this case, is amply sufficient to establish the fact that the prosecutor's horse was taken by someone on the night in question. And the confessions of the defendant to the taking and his flight, together with the other circumstances proven, not only connected defendant with the taking, but relieved the court from the necessity of giving to the jury a charge on circumstantial evidence: Wampler v. State, 28 Tex. Crim. App. 352.
It is also insisted by the appellant that there was no fraudulent intent in this case to permanently appropriate the horse to the use or benefit of the appellant; that the taking of the horse with the intent to procure a reward for the return of same is not the intent to permanently appropriate the property, necessary to constitute theft. Under our statutes, the taking must be with the intent to deprive the owner of the value of the property, and to appropriate the same to the use or benefit of the person taking, and it has been held that the taking for a mere temporary use—as where a party takes a horse for the purpose of taking a ride, and turning the horse loose or restoring him to his owner—is not theft. But it appears that the purpose here was not for a temporary use, but to hold the property itself until he should be paid for its restoration to the owner, and to that extent he must have intended to have deprived the owner of its value, and to appropriate it, pro tanto, to his own use and bene fit; that is, he proposed to appropriate to his own use some interest or value in the horse itself: Musquez v. State, 41 Tex. 226; McPhail v. State, 9 Tex. Crim. App. 165. On this phase of the case, the court charged the jury, if they believed the defendant took the horse with the intent to deprive the owner of the value of the same until such time as the owner might offer a reward for the return of the horse, and then to return same and get the reward, and that it was his intent not to return same, but to appropriate it to his own use, except in case a revard should be offered, that in such case defendant would be guilty, the same as if he had taken the horse without any intention to return it in any event, or in any contingency. On the other hand, they were 260 instructed, if they believed defendant took the horse, but that he did so for the purpose of holding the horse and getting the reward, should one be offered, and without any intention of depriving the owner permanently of the value of same, but with the intention of returning same and getting a reward, or of returning him without a reward should none be offered, then to find defendant not guilty. These charges presented the issue on this branch of the case certainly as favorably to appellant as he could claim, and left the question of his intent at the time of the taking to be determined by the jury, and we think the evidence is amply sufficient to sustain their finding as to such intent.
The appellant raised the question as to the sufficiency of the indictment, and claims that the word "at" is used, instead of the word "of,” in the allegation of possession and in the allegation of value, and he has brought the original indictment before us for our inspection. On a careful reading of the same, we are of the opinion that the word "of," was the word written by the pleader, and not "at," as claimed.
There being no error in the record, the judgment is affirmed. Hurt, P. J., absent.
CORPUS DELICTI-PROOF OF.-Confessions alone will not sus tain conviction of crime in the absence of corroborative proof of the corpus delicti: Willard v. State, 27 Tex. App. 386; 11. Am. St. Rep. 197, and note; Harris v. State, 28 Tex. App. 308; 19 Am. St. Rep. 837, and note. See, also, the extended notes to State v. Williams, 78 Am. Dec. 254, and Daniels v. State, 6 Am. St. Rep. 251.
LARCENY-TAKING AND CONCEALING FOR REWARD.-The wrongful taking and carrying away of the property of another without his consent, with intent to conceal it, until the owner offers a reward for its return, and for the purpose of obtaining the reward, is larceny: Berry v. State, 31 Ohio St. 219; 27 Am. Rep. 506.
HOCKER v. State.
(34 TEXAS CRIMINAL REPORTS, 359.) INDICTMENT-VARIANCE.-An indictment for forgery alleging that the instrument uttered by the accused purported to be the act of another, "a fictitious person,” which instrument was to the tenor of the following, then setting out the instrument signed by such other, does not contain a variance. The purport clause of the indictment simply describes such other party as a fictitious person, and does not allege that the act was that of a fictitious person.
FORGERY-FICTITIOUS PERSON.–The signing of a fictitious name to a written instrument with fraudulent intent constitutes for. gery. EVIDENCE,
CIRCUMSTANTIAL-INSTRUCTIONS.-In order to warrant a conviction on circumstantial evidence, all the necessary facts must be consistent with one another and with the main fact sought to be established, and they must be of so conclusive a nature that, when considered in connection, they lead reasonably and with moral certainty to the conclusion that the defendant did