*1 The State. L. R. Grafft 1, December 19220. Delivered No. January reinstated Appeal opinion) (without rehearing February written denied *2 opinion The states case. Jourdanton, Diego, Smith, Winslow, R. R. of
W. W. of San Austin, Harris, appellant. Harris for & of Austin, Lloyd Davidson, Attorney, for State. Judge Appellant the offense was convicted of Krueger, . punishment at confinement in the murder and his was assessed years. Penitentiary for a term of five appeal insufficient to author- The found the record is bond appeal for reason that of the this ize consideration judge approved by tried the case. it is not who Procedure, requires that Article Code of Criminal Boggus judge and the sheriff. See bond be Rep. 656; Hall Texas Crim. Bell v. granted Appellant days perfect his from this date to appeal. bond, insufficiency appeal of the reason of the
dismissed. Appeals has of the Commission of of the of Criminal approved by the THE MERITS.
ON Judge Appellant of the offense was convicted Krueger, punishment at malice and his was assessed con- murder without years. Penitentiary for term of five finement the State offense, night alleged of the that on the The record shows deputy Henslee, accompanied who was a Obid Freer, appellant see city went to col- marshal in the town appellant owed Henslee. rent and an account which lect some debt, payment request reply from Henslee In following morning. pay him on the De- appellant said get appellant pay Henslee then and it over then told ceased split intended to Henslee if he Appellant then asked with. receiving answer an affirmative stated that get any money his and then started the s— of a b— again caught the arm and away. Deceased to walk pay Henslee, whereupon appellant demanded that he ceased, dragged down, him took hold of his feet knocked During proceeding, the deceased’s him a short distance. pistol pocket. parties Both of the reached for fell out of his gun, got time. In and both their hands on at about same discharged. Finally, appel- over the it was taking pistol from the deceased and struck lant succeeded it, fracturing his skull. From these him over the head twice days injuries later. There some the deceased died a few was drunk. to the effect Appellant’s version of the affair is that when he started to Henslee, approached pistol in his leave put jail; him in that he hand and threatened to arrest fist; the de- the deceased down with when knocked ground, hand; fell out fell to the ceased *3 grabbed pistol, posses- they and in the for its the discharged; that he wrenched the from the sion it was and him twice over the head it. hand deceased’s one, appellant complains By exception number bill part pur- the of a in evidence State of his the introduction confession, ground voluntary. that it was ported on the jury, proper the issue to the which we consider court submitted proper predicate the had laid the in the fact that view of for its introduction. two, exception appellant complains number bill
following charge jury: the to delivered court the believe, you under all the facts and if circumstances in
“But case, public place, drunk in the defendant was not a that defined, attempted and that is as that offense above defendant, viewing and the defendant all of the to arrest the standpoint, from his circumstances at the time facts and be- him, attempting you to arrest was or if have lieved the deceased thereof, right then the of self-defense would a reasonable doubt defendant; you and if believe that inure to benefit attempted to arrest defendant and the defend- viewing standpoint, and circumstances from his all the facts ant him, the deceased was that about to arrest at the time believed him, bodily and kill or to attack inflict serious or was about believing him, that the defendant so injury upon did there- striking deceased under a kill the bodily injury, apprehension of death or serious or reasonable deceased, you if have a attack, from the said reasonable doubt justified thereof, defendant would then the said under the him, say by your acquit you verdict should ‘Not ” Guilty.’ charge ground Appellant objected to on the it lim- deceased, ited to an which of self-defense attack expectation created in his mind a or fear of death reasonable bodily injury serious of the extent and failed to advise the force to he resort unlawful which arrest. objection is well taken. In a case where an
illegal actually attempted made, arrest is is or where one person illegally so to as restrained has use such force appears reasonably necessary prevent illegal to him to be or to arrest free himself.
In the 44 Texas case of Cortez v.
(182), this said: give “The facts and circumstances of case character it; may indicate, killing and these where the is resistance arrest, to an manslaughter, unlawful it was murder or as particular'case. course, shown each facts Of where legal authority, the arrest gency only is under there is one contin- rightly resisted; is, where such an can arrest But, where force used to secure is excessive. if the au- thority wanting, person attempting to make an arrest such wrong trespasser, is in so ar- regardless knowledge can rested resist him that the arrest illegal; using only reasonably necessary such force as is prevent arrest, or free himself from such restraint. reasonably If necessary he used no pre- vent the restraint, or to free himself from such he *4 guilty person, of no offense. But if such endeavoring an arrest, or in to free himself an from reasonably necessary,
uses guilty, least, manslaughter. necessarily at the It would not manslaughter. follow that his offense would be no more than might suggest The excessive force used be so enormous as to othgr malice, this, circumstances, might suggest a ma- killing.” licious plan is for the better the court to instruct
We on and his self-defense resist separate paragraphs, specifically applying and distinct To the law the facts each instance. do otherwise jury. An accused tend to contuse the is entitled to a dis upon and affirmative instruction the law of tinct defen State, v. sive issue raised the evidence. See Morrison 37 State, 601; Rep. 47 Goodman v. Texas Crim. 44; v. Williams ; S. W. (392) Merriweather S. Kibbe theory the court what understand are unable Phillips as the al- and Mrs. of Mr. admitted Mrs. her or had with Woodward. leged affair difficulty between cause of It therewith, and did not tend to solve ceased, no connection had Phillips any in issue. Mrs. any fact What issue or elucidate hearsay. clearly It seems husband was her told suspended trial being, time for the try toward the women. conduct proceeded to charge, judgment re- in the court’s the error For remanded. cause versed Appeals has of the Commission by" the Court of Criminal by the
Floyd Gurganus v. The State. Delivered November
No. 19041. Rehearing granted February