1. Jury — Qualification of Special Venireman — Conclusion as to Guilt. — In ascertaining the qualifications on voir dire examination of a proposed juror, when the juror states that he has formed a conclusion as to the guilt of the defendant, the important questions are, "was this a fixed and settled conclusion?" and "was his opinion so entertained as to become a fixed belief of the guilt of the accused?" If these questions are affirmatively answered, then he is incompetent and disqualified.
2. Same — Practice on Appeal. — On appeal, in order to have reversed the ruling of the trial court holding a juror competent who has formed a conclusion, the record must show the source of the juror's information; that is, whether he witnessed the transaction, was informed of the facts, talked with the witnesses, had read the evidence, or whether his opinion was founded on vague rumors.
3. Continuance — Reputation of Accused. — A continuance will not be granted for witnesses to prove the good reputation of the accused. This is no ground for a continuance.
4. Same — Requisites of Application — Threats. — An application for continuance for witnesses to prove threats against defendant is wholly indefinite and insufficient as to particularity and specification, which fails to give the names of the parties making the threats, the time when the threats were made, and if communicated to defendant, the name of his informants.
5. Same — Continuance — Mob Violence. — When matters pertaining to the acts and conduct of a mob in attempting to hang defendant at the time of his arrest are included in and made a part of the application for continuance, held, that such matter is not ground for continuance, but for a change of venue, and will not be considered in connection with and as a part of the application for continuance on appeal, where it appears that the mob violence complained of occurred more than a month prior to the trial, and there was no attempt to show any improper conduct, either by word or act, from any source at the time of the trial.
6. Murder — Evidence as to Previous Acts, Conduct, and Declations of Defendant. — On a trial for murder of a policeman, where it appeared that on the day preceding the homicide defendant was on the public streets unlawfully carrying a pistol, and threatening to kill any damned policeman who should attempt to arrest him, which conducts and threats were communicated to the deceased and another policeman, and in their effort to arrest the defendant the next day, without a warrant, for unlawfully carrying the pistol, the deceased was shot and killed by defendant; and it was objected that evidence as to the purpose of the policemen to arrest the defendant without a warrant for carrying a pistol and raising a disturbance, upon communication made them after completion of the offense, and their conversation between themselves and with others as to defendant's dangerous character, and the method of securing his arrest, was hearsay, irrelevant, and incompetent: Held, that the evidence was clearly competent, and made so by the acts and threats of defendant.
7. Charge of the Court. — See charge of court upon a trial for murder of a policeman in his efforts to arrest defendant, without a warrant, for unlawfully carrying a pistol, held, to be an admirable application of the law to every feature of the case.
8. Unlawfully Carrying a Pistol — Arrest without Warrant — Credible Person. — On a trial for murder of a policeman, while endeavoring upon information of others and without a warrant to arrest defendant for unlawfully carrying a pistol, held, that under article 322, Penal Code, it is not essential that the offense is being committed at the time the officer is informed thereof; and held, further, in the absence of proof to the contrary, the law presumes a citizen to be a credible person.
9. Homicide in Resisting Illegal Arrest — Murder of First Degree, when. — A homicide in resistance to an illegal arrest of an ordinary character, while not justifiable, may reduce the offense to manslaughter. But while this is the general rule, yet the killing may be done under such circumstances of deliberation or cruelty as will afford proof of express malice, and murder of the first degree, as when done with a weapon deliberately prepared beforehand to resist the illegal arrest.
10. Arrest Without Warrant Legal, when. — By provision of article 322, Penal Code, any peace officer is expressly authorized to arrest without warrant a party unlawfully carrying arms, and he is liable to punishment if he refuse to do so, on his own knowledge or upon information from some credible person.
11. Same — Unnecessary Violence — Apprehensions of Danger. — When an officer, in attempting an arrest, does so in a wanton, violent, and unreasonable manner, such as reasonably created in the mind of the party he was seeking to arrest apprehension of death or serious bodily harm, and acting upon such apprehension the party kills the officer, the killing would be either justifiable, or of no higher grade of culpable homicide than manslaughter. But when defendant, by his own acts and conduct, causes the officer, in fear of his life, to prepare himself with arms ready for immediate use, to prevent the execution of his (defendant's) deadly threats, held, defendant can not be heard to complain of serious apprehension to life or body.
12. Murder — Previous Malice — Fresh Provocation. — On a trial for murder, where a fresh provocation has intervened between the original trouble and the homicide, it is correct as a proposition of law that the killing should be attributed to the fresh provocation, and not to the previous malice; but this rule has no application where one, knowing he has violated the law, and will be arrested therefor, determines to make the issue one of life and death, coolly and deliberately prepares himself for that issue, and when the crisis comes takes the initiative without provocation, and kills the party whose life he has previously threatened.
13. Murder of the First Degree. — See evidence which, in the opinion of the court, is amply sufficient to support a judgment of conviction for murder of the first degree, with the death penalty.
HURT, PRESIDING JUDGE.
On the 17th day of June, 1892, F.P. Miller, the appellant, shot and killed W.H. Riddle in the city of Dallas. He was indicted for murder on the 18th day of June, and was tried and convicted on the 23rd day of July, 1892, the verdict and judgment being for murder in the first degree, with the death penalty assessed.
Counsel for appellant submitted an able oral argument and elaborate brief, assigning numerous errors as reasons for reversing the judgment. We have very carefully examined all the errors relied upon by counsel, but will notice in this opinion such as we deem of importance.
Error is assigned relating to the empanelling of the jury. It is urged that Morgan was disqualified, and that he sat in judgment upon appellant's case. S.T. Morgan being called, on cross-examination by defendant, stated that he had formed a conclusion in relation to the defendant's guilt, but that the same would not influence his verdict; that it would require evidence to remove his opinion, but that his verdict would not be influenced thereby. He had no bias or prejudice in favor of or against the defendant. That he had read and heard of the meeting of the citizens at the city hall, advising the lynching of the defendant; also of the attack upon the jail. That he did not approve of mob law in this case, but did approve of mob law in some cases. If Morgan had reached the conclusion that defendant was guilty, was this a fixed and settled conclusion? If so, he was disqualified. Was his opinion so entertained as to become a fixed belief of the appellant's guilt? If so, he was not competent to try the case. In ascertaining the character of his conclusion, the source of the juror's information becomes of the first importance. Had he witnessed the transaction? Was he informed of the facts, talked with a witness or witnesses, read a statement of the evidence, or was his opinion founded upon vague rumors? None of these questions are answered by this record, and hence we are not prepared to reverse the ruling of the learned trial judge who tried this case.
Appellant applied for a continuance of the case, which was denied, and he assigns this for error. There are two grounds set up: first, "that there exists in Dallas County a dangerous combination against him, instigated by influential persons, which will defeat a fair and impartial trial of this case at this term;" second, "that defendant can not safely go to trial without the testimony of Mrs. Kirkham and E.A. Kirkham." By these witnesses appellant expected to prove his good reputation. This is no ground for a continuance. "That parties whose names can not now [at time of trial] be recalled by defendant came to his shop, and told him that the police of the city of Dallas would do him up, and kill him; that defendant was greatly alarmed and disturbed thereat, and on account thereof armed himself for protection; that defendant expressed his apprehension of injury, and requested that the witnesses, should they hear parties in his house, to awaken and notify him; that said witnesses lived in the same house with him, and that he was their tenant." This application is greatly wanting in particularity and specification. What policemen of Dallas threatened to kill defendant? Did Early or Riddle make threats? When were the threats made, and when were they communicated to appellant? Were they made just before, or one or two years prior to, the homicide? Appellant was greatly alarmed, and armed himself for protection. When did he arm himself? A short time before the killing, or a long time prior thereto? We are not informed on these facts. He may have been informed that the police of Dallas intended to kill him, became greatly alarmed, armed himself, and subsequently learned that he was in no danger, and become perfectly cool and deliberate. It is passing strange, indeed, that appellant, and those with whom he lived, and heard the parties inform defendant of the threats of the police of Dallas, should forget the names of his informants. If Mrs. Kirkham and E.A. Kirkham heard some persons inform appellant of the threats made by the policemen of Dallas, very slight diligence would have ascertained the names, and those persons would in all probability have been obtained. Were Mr. and Mrs. E.A. Kirkham questioned in regard to this matter? This is not shown. This application is so indefinite and wanting in specification as to render it wholly insufficient.
Matters relating to the conduct of the mob are also included in the application for continuance. The mob assembled on the day of the homicide, viz., the 17th day of June, 1892, and the trial was had on the 23d day of July — more than a month thereafter. Was the influence of the mob present, or probably present, with the jury? Can we reasonably infer that the jury was influenced by the mob? If so, appellant would have had a very strong equitable, not legal, ground for continuance. There was no attempt to show that there was improper conduct, either by word or act, from any source at the time of the trial. Again, this matter is not a ground for continuance, but for a change of venue; and, if a motion had been made to change the venue of the case, the State could have perhaps answered, and shown by proof, that in fact there was nothing to prevent a fair and impartial trial.
Over objections of defendant, the State introduced in evidence the testimony of Early, Miller, and Lamar, "in relation to the purpose of Early and Riddle to arrest defendant, without a warrant, for carrying a pistol and raising a disturbance, upon a communication made to them after the completion of the offense, and the return of the defendant to his shop; and the statements of Miller and Conarty to Early and Riddle as to the dangerous character of the defendant, the inquiries and conversations of Early and Riddle with others and between themselves ill relation to the dangerousness of the defendant, and the method and purpose of securing his arrest."
The State's witness Early was permitted to testify, "that on the night before the killing, witness and the deceased, Riddle, were informed by D.L. Wilson that the defendant had been carrying a pistol on his person in the street that evening, and that he was cursing and threatening to kill any damn policeman who should attempt to arrest him. The fact was communicated to Riddle and me an hour or two after its occurrence, and after defendant had returned to his shop. We determined to arrest him at that time, and with that intention went to Conarty's saloon, which was on the opposite side of the street, to reconnoiter; but the defendant's shop was dark, the lamps not being lighted, and we concluded to postpone the arrest until the next day, on Conarty's advice. Conarty said the defendant was a bad man, and that we were liable to get hurt. On the following morning at about 10 o'clock, Riddle and I came again in the same neighborhood for the purpose of arresting defendant. We first went to the neighboring barber shop, and inquired of the barber and his assistant if they had witnessed the occurrence of the evening before. They answered that they had not. We then went into George Miller's saloon, where we made similar inquiries. Riddle and Miller talked together privately, and I did not hear what was said. On Riddle's return to where I was, he said, 'All right, we will go and get him,' and we left the saloon to go to defendant's shop. As we left the saloon, I said to Riddle, 'We had better draw our pistols, so as to have an equal break with him.' Riddle said 'All right,' and took his policeman's club out of its scabbard. I I took out my pistol. On our way from the saloon to defendant's shop — a distance of seventy or eighty feet — we carried our weapons in our hands, hugging the wall, so as not to be seen by him. The defendant was not present at any of the conversations or occurrences referred to."
The defendant objected to the evidence as a whole, and to each and every part thereof, on the ground that it was hearsay, and incompetent and irrelevant, and threw no light on the conduct and motives of the defendant in the commission of the alleged homicide; but his objection was overruled, and the evidence admitted, to which he duly excepted. These facts were clearly competent; made so by the acts and threats of the defendant. The day before the killing the defendant was on the streets with a pistol, unlawfully cursing, and swearing that he was going to kill the first officer who passed his shop. He said: "They have been prowling around my place long enough, and have been bothering me, and I am not going to stand it any longer. I don't care if I die. I am going to shoot one or two of them before I do. I am not drunk or crazy, but mean just what I say." To Miller he stated the day before the homicide, with pistol in hand, that he was "looking for those blue-coated sons-of-bitches;" that they had been bothering him for sometime; that they did not do anything else but he around the saloon and drink whisky, and that he wanted to kill them and kill himself. Defendant did not mention their names, but said they were "the policemen on that beat." It is evident that defendant's conduct in carrying the pistol, and deadly threats, aimed at Early and Riddle, caused them to approach defendant's shop with their arms ready for use, if necessary; and when defendant saw them approaching (if in fact he saw them approaching) with their arms ready for use, or when Early appeared in front of his door with pistol in hand, defendant had no right to apprehend unnecessary violence from either Early or Riddle. Why? Because his own conduct and threats made it imperatively necessary for these officers to be thoroughly prepared, and strictly on the qui vive. That the defendant was expecting the officers to arrest him at any moment is also evident, for he was prepared, having his pistol in a position for immediate use and prompt action.
Errors are assigned upon the charge of the court. We desire to say, that we have very carefully examined the charge in this case with reference to every phase of the case which was supported by any testimony in the record, and it is our opinion, when taken as a whole, it is a most admirable application of the law to every feature of the case. It was sufficient without the requested instructions given, but those given at the request of defendant rendered it absolutely unquestionable.
Counsel for appellant contend that the attempted arrest was unlawful: first, because it was shown that those who informed the officers that defendant had been guilty of unlawfully carrying a pistol were not credible persons; second, that defendant was not carrying the pistol at the time the officers were informed. To authorize an arrest for this offense it is not required that the offense is being committed at the time the officers are informed thereof. The law presumes a citizen to be a credible person.
Counsel for appellant contend earnestly, that the evidence does not warrant a conviction for murder in the first degree. We will discuss this question from two points of view: first, that the attempted arrest was illegal; second, that it was legal. A man will not be justified, if he kill in defense against an illegal arrest of an ordinary character, yet the law sets such a high value upon the liberty of the citizen that an attempt to arrest him unlawfully is esteemed a great provocation, such as may reduce a killing in resistance of such an arrest to manslaughter. But while this is the general rule, yet the killing may be done under such circumstances of deliberation or cruelty as will afford proof of express malice, in which case it will be murder of the first degree (Galvin v. The State, 6 Colorado, 292; Roberts v. The State, 14 Missouri, 146), as when the killing be done with a weapon deliberately prepared beforehand to resist the illegal arrest. Rex v. Patience, 7 Car. P., 775.
A is expecting an attempt will be made to arrest him illegally. He deliberately prepares his arms for immediate use, calmly and deliberately determines to kill the person who attempts the arrest. B appears with intention of making the arrest. A immediately shoots and kills B. A would be guilty of murder upon express malice, though the intended arrest was illegal. To hold A guilty of murder upon express malice would not only be law, but common sense and justice. Applying the facts of this case to this rule of law, we would hesitate before reversing the judgment for insufficiency of the evidence, though the attempted arrest was unlawful. But the attempted arrest was legal. It was the duty of the officers to make it. A failure to do so, under the facts of this case, would have made them amenable to a fine by the Penal Code, article 322.
But it is urged by counsel, that the arrest in this case was attempted in a wanton, violent, and unreasonable manner, such as reasonably created in the mind of defendant apprehension of death or serious bodily harm, and that defendant, acting upon such apprehension, would not be guilty of murder in the first degree. If this proposition is supported by the evidence, the conclusion would be correct; for under such a state of case the accused would be justified, or would not be guilty of a higher grade of culpable homicide than manslaughter.
In support of this proposition, counsel rely: First. Upon the manner in which Early and Riddle approached the shop, namely, with arms prepared, and ready for immediate use. It was the duty of these officers to arrest appellant, and we have seen that he made it absolutely necessary for them to be prepared to prevent the execution of his deadly threats to take their lives; hence the fact that the officers approached his shop with arms drawn was no ground for serious apprehension of life or body of defendant, for he could have expected nothing else but thorough preparation on their part to protect themselves against the execution of his oft-repeated threats to kill them. Second. Counsel assign and rely upon the fact that Early shot at appellant first, or attempted to shoot first, and this being so, we should attribute the killing to this provocation, and not to the previous malice. This is a correct proposition, but how about the fact? Did Early or Riddle shoot or attempt to shoot first, or make the first demonstration showing an intention to use a deadly weapon? Upon this point Early says: "Just as I stepped up in his doorway, defendant looked up. [He was sitting on a low chair, right in front of the door.] He was sitting on his work bench, but I could see his hand easy, and just as he saw who we were he made a dive down by his side, grabbed his pistol, and just as soon as I saw him do that I raised my pistol and pulled the trigger, but it was only cocked half-way, and would not fire; and the next instant there was a flash in my face, and it staggered me. The flash in my face was a shot from a pistol in the hands of the defendant."
Now, if Early tells the truth, the defendant, without any sort of doubt, was the aggressor. When he saw the officers, he "dived for his pistol," kept ready at hand, and evidently for the purpose of executing his threats to kill the first policeman who passed his door. When he reached for his pistol, Early, under the circumstances of this case, had the right to shoot him, and so had Riddle. The acts and threats of appellant made it the duty of Early and Riddle, first, to arrest Miller; second, made it absolutely necessary for them to prepare to prevent Miller from murdering them. They were in the right, Miller was in the wrong. They were performing a duty required by law, with a penalty for failure to perform it. Miller expected the arrest. He knew that he had violated the law, and would be arrested, if he did not prevent it by killing the officers. He sought and was prepared for the issue, and his preparations were made coolly and deliberately, and the issue was one of life and death; and when the crisis came he acted at once without provocation, but evidently upon his previous malice, as was expressed by his deadly threats made directly against "that grey-headed son-of-a-bitch Riddle," and by other facts. We are therefore of opinion, that this was a case of calm, deliberate, premeditated murder, without one mitigating circumstance. Appellant entertained a deep-seated and malignant hatred for Early and Riddle, evinced a great desire to have an opportunity to slay them, acted in a defiant and lawless manner to induce them to attempt his arrest, coolly and deliberately prepared and had ready for immediate use his deadly weapon, was expecting the arrest, and when the issue came, without provocation, opened fire upon them, which resulted in the death of Riddle. For this homicide a jury of his county, under a full and fair exposition of the law, found him guilty of murder in the first degree, and assessed the death penalty. We have given his case a thorough investigation, such as the penalty demands, but must say that there is no such error presented in the record as would justify this court in reversing the judgment, and it is affirmed.
Affirmed.
Judges all present and concurring.