Jacobs v. State, No. 6642

No. 6642 | Tex. App. | Jun 26, 1889

Willson, Judge.

Bill of exception Ho. 2 is as follows: “Be it remembered that on the trial of the above entitled cause the State offered to prove the following facts, viz., by J. H. Bickett, a witness for the State, that at the time defendant is charged to have killed G. L. Pool, he, said Bickett, and said Pool, were deputy sheriffs of Milam County, to which the counsel for the defendant objected for the following reason, viz.': Because the law directed how deputy sheriffs could be appointed, and required a record thereof to be kept in the office of the county clerk, and required said appointment to be in writing, and required the appointee to take the constitutional oath, and that said record and said original appointment were the best evidence of the official character of deputy •sheriffs, and the court overruled the objections; the defendant excepted -to said ruling, and herewith tenders his bill of exception,” etc.

It will be observed that the bill of exceptions is incomplete, in that it does not state that the testimony objected to was admitted in evidence before the jury. Unless it was admitted in evidence, certainly no material error was committed in overruling the objections to it. A bill of exceptions must be so full and certain in its statements that in and of itself, it will disclose all that is necessary to manifest the supposed error. It must sufficiently set out the proceedings and attendant circumstances below to enable this court to know certainly that error was committed. Willson’s Crim. Stats., sec. 2368. When the exception is to the admission of testimony it must not only show that the testimony was offered, but must further show that it went before the jury as evidence. Burke v. The State, 25 Texas Ct. App., 172. In considering a bill of exceptions do the admisssion of evidence it must appear from the bill itself that the testimony objected to went before the jury. We can not look to the .statement of facts to determine that fact. We are not called upon therefore to decide the question sought to be presented by bill of exception Ho. 2; but if we were, we should hold that there was no error in admitting the testimony objected to. The official character of Bickett and Pool was an incidental, collateral issue, and was not an issue directly between said officers and the public. Such being the case, parol evidence was competent to prove their official character. Woodson v. The State, 24 Texas Ct. App., 153.

2. Bill of exception Ho. 3 is incomplete and defective in the same particular as bill Ho. 2. It recites that the State offered to prove by a record of the District Court of Frio County that the defendant, at the time he killed Pool, was charged by indictment in the District Court of Frio County with murder, and said record, together with defendant’s objections thereto, are set forth in the bill. But it is not shown by the bill that said record was read in evidence before the jury. But here again, were we to consider the bill sufficient, we would hold that said record was competent evidence. It established a circumstance which tended to show defendant’s motive in committing the homicide; which tended to show that he was a fugitive from justice, who had resolved to evade and resist arrest for a capital crime at any and all hazards regardless of consequences, •and regardless of whether his arrest should be attempted legally or illegally. It furthermore tended to explain the conduct and motives of the officers and posse that were seeking to arrest the defendant, and to throw light upon the whole transaction. It was in fact a part of the res gestœ of the homicide.

3. For the reasons above stated it was not error to admit the testimony-set forth in bill of exception Ho. 4. Said testimony was also competent for the purpose of showing that in attempting to arrest the defendant the officers and posse were acting by authority of law, and that said attempted arrest was legal.

4. Bill of exception Ho. 5 does not state that the testimony objected to went before the jury, and is therefore defective. But we think the testimony was competent to show that the.attempted arrest of the defendant was a legal one.

5. . Bill of exception Ho. 6 does not show that the testimony objected to went before the jury, and we shall not therefore consider it.

6. Bill of exception Ho. 7 is not maintainable. The testimony objected to was competent to show that in evading arrest, and in violating the law by carrying arms, the defendant was aided and supported by Johnson, and that the two acting together, were openly and continuously defying the law and its officers, to the terror of the citizens of the neighborhood. And further, it was competent to explain the conduct of the officers and posse in attempting defendant’s arrest, and to show that said officers and posse had good reason to believe that defendant’s arrest would be resisted by him and said Johnson, and that therefore said officers and posse, in attempting said arrest in the manner they did, acted within the limits of prudence and'of the law.

7. Bills of exception 8, 9, and 10 are to the action of the court in rejecting certain testimony therein set forth offered by the defendant. Each of these bills is too defective to be considered. They do not recite facts which would enable this court to fully understand and know all the facts, on which the correctness or error of the rulings complained of depend. Livar v. The State, 26.Texas Ct. App., 115.

8. We come now to a consideration of the charge of the court, to which the defendant reserved several exceptions and here insists upon the same as cause for reversal:

(1) When considered as a whole we see no error in paragraph 5 of the charge, defining and explaining “implied malice.” The words “considerable provocation” in said paragraph, in the connection in which they aré used, convey the same meaning as the words “adequate cause;”' and besides the court in said paragraph was defining implied malice and not manslaughter, and defined it we think correctly.

(2) That portion of the charge which explains the law relative to the-rights, duties, and responsibilities of parties attempting an arrest, and of the party attempted to be arrested, respectively, is not we think ob~ noxious to the objections urged against it. It is expressly provided by the Code that a person violating the law by unlawfully carrying arms may be arrested without warrant by any peace officer, upon his own knowledge or upon information of some credible person; and it is made a penal offense for a peace officer to fail or refuse in such case to make the arrest. Penal Code, art. 322. The court gave this law to the jury, and the defendant excepted thereto, contending that said provision of the statute contemplates an arrest in flagrante dilicto; that to authorize such arrest the officer must be present with the offender at the very time of the commission of the offense; that the offender must be escaping, and that there is no time or opportunity to obtain a warrant for his arrest. We do not so understand said provision of the statute. We understand it to .authorize an arrest without warrant, not only when the offense is being committed in the presence and within the knowledge of the officer, but also when the officer is informed by a credible person that the offense is being committed, although the offender at the time of such information may be in a distant portion of the county, and although the arrest may not be immediately attempted. This is a special provision and is not controlled by other statutes relating to arrests. It does not prescribe the time within which the arrest shall be made or attempted. It does not require that a warrant of arrest shall be obtained where there is time and opportunity to obtain it. We think it authorizes an arrest without Avarrant upon the information of a credible person that a violation of articles 318 or 320 of the Penal Code is being committed, although the person committing such violation is not at the time present or even Avithin the Teach of the officer, and although there may be time and opportunity to obtain a warrant of arrest. We do not think this provision of the Code, construed as we construe it, is in conflict with section 9 of the Bill of Bights, or of any other provision of the Constitution.

(3) We have, as far as we are capable of doing, carefully considered every objection made to the charge of the court. We fail to find any error in it of which the defendant can complain. If erroneous in any particular the error is in the defendant’s favor. It is obvious that the learned trial judge prepared his charge with great caittion and with a vieAV of giving the defendant the benefit of every phase of the case favorable to him presented by the evidence. We think, taking the charge as a whole, that it is unobjectionable on the part of the defendant, and that none of the exceptions made to it are Avell grounded.

9. There is no merit in the objection made to the verdict as appears by an inspection of the original sent up in the transcript/

Finding no error in the proceedings and conviction the judgment is affirmed.

Affirmed.

Judges all present and concurring.