Burkhardt v. State

• Decision Date: 03 April 1918
• Docket Number: (No. 4855.)
• Parties: BURKHARDT v. STATE.
• Court: Texas Court of Criminal Appeals

202 S.W. 513

BURKHARDT v. STATE.

(No. 4855.)

Court of Criminal Appeals of Texas.

April 3, 1918.

Appeal from District Court, Comal County; M. C. Jeffrey, Judge.

George Burkhardt was convicted of murder, and he appeals. Reversed and remanded.

Adolph Seidemann and W. W. Burnett, both of New Braunfels, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J.

Appellant was convicted of the murder of Alfred Fischer. The punishment was assessed at confinement in the penitentiary for 50 years.

The homicide grew out of the arrest of appellant. The deceased was a deputy sheriff. The homicide took place on the 10th of March, 1917. In December preceding, the house of one Leuders was burglarized and a watch and chain stolen. On the day of the homicide and a short time before the killing, the appellant was found by deceased in possession of the watch, which was identified by the owner and his wife, who were present. The sheriff instructed deceased to arrest appellant and release him on bail, otherwise to bring him to the county seat. The deceased told appellant that he would have to arrest him unless he gave bond. Appellant attempted to give bond, but failed. Deceased endeavored to assist him. According to the state's evidence, appellant started to walk away fast. Deceased followed him, laid his hand on his shoulder, and said that he would have to arrest him and take him to New Braunfels. Appellant said he would not be arrested, and in the difficulty immediately following three shots were fired, one of which, according to the state's theory, entered the leg of deceased and another his breast, producing a mortal wound. One Schlameus was present and claimed that after the first shot was fired he took hold of appellant and appellant ran, and as he ran Schlameus struck him with his fist. Appellant was pursued by the deceased and several parties who were present, including Leuders, the owner of the stolen property. As appellant was fleeing, deceased fired at him. Leuders, according to his testimony, was in front of deceased, and, after appellant had run about 100 yards in the direction of some brush near the end of the bowling alley, Leuders, according to his statement, spoke to appellant, who turned half around and fired two shots in the direction of his own head. Appellant fell on the ground at once after these two shots were fired, and at the same time deceased came up. Deceased's brother also came and said to deceased that he was afraid that he had killed appellant. Deceased said, "No, he has killed me," and pulled back part of his coat to exhibit the wound. He immediately fell and died. Appellant claimed that, after he had failed to induce his cousin to sign his bond, he sought permission to see his father, but that deceased and Schlameus took him back into the corner of a saloon and one of them grabbed each of his hands, and that as his left hand was grabbed he drew it out of his pocket with his pistol and fired a shot; that a struggle followed, and he fired two more shots; that he was struck a lick by some one, managed to get loose, and run for fear they would kill him; that while running he heard a shot fired, which he supposed was fired at him; that he ran around the corner and alongside of the bowling alley, and before he got to the other corner saw a person with a gun drawn on him, and he raised up and fired a shot at him, and just then he stumbled, and as he hit the ground one shot was fired, by whom he did not know, and he then became unconscious. He says he did not know who the man was at the corner that he shot at, but that he fired because he was presenting a gun and he was afraid of losing his life. A doctor reached the scene a few moments later and found deceased, Fischer, in a dying condition from the wound that entered his breast. Appellant had scalp wounds on his head, apparently bullet wounds. There were four holes. Another doctor who examined appellant later said there were three wounds on his head, one of a different nature from the other two; that he removed part of a shell upon the head; that the outer bone of the skull was broken. Appellant claimed that when he was struck at the time of the scuffle he was hit with something hard, and his theory was that one of the wounds on his head was caused by this blow. The state's theory was that all of them were self-inflicted. Appellant claimed that he was in possession of the pistol for self-protection, and that, as he could use it practically as well with his left as with his right hand, he carried it in his left-hand pocket, because it was likely that in the event of attack his right hand would be first disabled.

The court submitted the issues of murder, manslaughter, illegal arrest, and self-defense. Appellant, through special charges, objections to the court's charge, and to the introduction of evidence, raises numerous questions touching the law of arrest as applied to the case. He claims that deceased was not an officer, and that the attempted arrest, being illegal, was an assault justifying his acts in firing his pistol at the time of the struggle. He claims, however, that the shots fired by him were not intended to kill, but to induce his release.

It appears that deceased had been acting as deputy sheriff for a number of years; that the sheriff, who was in office at the time of the homicide, had appointed him during the previous term; and that his written appointment was found in the clerk's office. There was no written appointment during the subsequent term, though the sheriff testified he continued to act as deputy sheriff, and that he had in fact appointed him, though he has not filed his oath as required by law. Objection was made to proof of the subsequent appointment on the ground that the writing was not sufficiently accounted for. In view of the clerk's testimony introduced by the state showing search for the document, we do not think the record shows error in this respect. There were a number of witnesses who testified that the deceased had been acting as deputy sheriff in the neighborhood of the homicide which was remote from the county seat for six or seven years, and was generally recognized by the public as an officer there. The fact of his so acting, and the other circumstances mentioned in connection with his appointment, we think, was sufficient to sustain the finding that he was an officer de facto. Ex parte Tracey, 93 S. W. 541; Hill v. State, 50 Tex. Cr. R. 619, 100 S. W. 384; Weatherford v. State, 31 Tex. Cr. R. 535, 21 S. W. 251, 37 Am. St. Rep. 828; Brumby v. Boyd, 28 Tex. Civ. App. 164, 66 S. W. 874; 29 Cyc. 1374-1389; Branch's Ann. P. C. § 1978. Article 262, Vernon's Ann. C. C. P., is as follows:

Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the person accused."

We think under this statute with the information that the deceased had he was authorized to arrest the appellant. Cortez v. State, 47 Tex. Cr. R. 16, 83 S. W. 812; Hill v. State, 37 Tex. Cr. R. 415, 35 S. W. 660. What information he had received was a question for the jury. In passing upon the question raised as to whether appellant was resisting a legal arrest, his knowledge of the fact that the deceased was an officer was an element. In other words, unless it was shown that appellant knew the capacity in which the deceased was acting and his ground for the arrest, the appellant was not bound to submit to the arrest without warrant. Lynch v. State, 41 Tex. Cr. R. 513, 57 S. W. 1130; Tiner v. State, 44 Tex. 131; Mooney v. State, 65 S. W. 927; Cortez v. State, 43 Tex. Cr. R. 386, 66 S. W. 453; and other cases cited in Branch's Ann. P. C. p. 1116. Appellant was a life-long resident of the community in which the officer acted, and whether appellant had knowledge of the fact that he was an officer was a question for the jury. If appellant was unaware of the official character of the deceased, the officer not having time to disclose it, appellant's flight would not deprive him of the right to defend against an effort to recapture him. Miers v. State, 34 Tex. Cr. R. 186, 29 S. W. 1074, 53 Am. St. Rep. 705; Tiner v. State, 44 Tex. 128; note 66 L. R. A. 372; State v. Phillips, 118 Iowa, 684, 92 N. W. 876.

There is another statute, however, under which, the facts as to the theft being found as claimed by the state, the arrest of appellant would...