Earles v. State

• Citation: 94 S.W. 464
• Parties: EARLES v. STATE.
• Decision Date: 20 December 1905
• Court: Texas Court of Criminal Appeals

94 S.W. 464

EARLES v. STATE.

Court of Criminal Appeals of Texas.

December 20, 1905.

Rehearing Denied March 23, 1906.

Appeal from District Court, Navarro County; L. B. Cobb, Judge.

Walter Earles was convicted of murder, and appeals. Reversed.

J. T. Williams, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

This conviction resulted in murder in the second degree, with 21 years fixed as the penalty. This is the second appeal. Earles v. State, 85 S. W. 1, 12 Tex. Ct. Rep. 267.

The facts, in brief, are that Earles, en route from Wortham (a station on the Houston & Texas Central Railway) to Dallas, stopped over in Corsicana. While there the sheriff received a phone message to arrest him for seduction. Deceased (a policeman), having heard of the message, went to the depot where appellant was, asked if his name was Earles, and, being informed in the affirmative told him he would have to arrest him. Upon inquiry by appellant, deceased notified him that the cause of the arrest was rape. Appellant demurred to the arrest, and asked to be taken by the oil mill, where he could prove to deceased that he had not committed rape, and could prove his whereabouts while in the city of Corsicana; the impression on his mind seemingly being that the supposed rape was committed during the time covered by his stay in Corsicana. This deceased refused, and started to jail with appellant. After going a short distance from the place of the arrest, about a block, appellant asked deceased again if he had any warrant. Deceased said, "No"; that he did not need any. He then informed deceased that he was going with him no farther. Deceased "gripped my arm with his hand. I jerked loose, jumped to one side, drawing my pistol as I jumped, and fired. When I jerked loose he put his hand to his side, as if to get his pistol. I could not wait, but shot. He staggered and turned, and staggered to the wall." The witnesses leave the question as to who really drew or began drawing pistols first— deceased or defendant. This seems to have been owing to the fact that none of them were looking (except one or two) at the parties at the beginning of the trouble. Several parties looked around, and saw the condition of things when the first shot was fired. One or two witnesses, testifying for the state, make it appear that appellant, when he jerked loose from deceased, immediately drew, and that deceased did not draw nor undertake to draw until after appellant had drawn his pistol. Some of them make it appear that deceased threw his hand to his right side, immediately upon appellant jerking loose, and that appellant drew his pistol and fired first. In fact, the testimony as to the drawing of the pistols and the shooting, so far as the beginning of the difficulty is concerned, is left in a rather confused condition. It seems to be practically a conceded fact that, as they were going up the street after the arrest, deceased held appellant by interlocking one of his arms with one of the arms of appellant. One witness placed deceased on the right of appellant, and some of them place him on the left; but all agree that he had one of his arms interlocked with one of the arms of appellant. Deceased was a powerful man, weighing about 200 pounds, and appellant was a small man, weighing about 140 pounds. Both were armed, and both shot. This is perhaps a sufficient statement of the evidence. There is nothing in the record to show any reason or cause for this shooting, except such as would grow out of an illegal arrest. There is no contention that can be urged under the facts that any other cause existed for this tragedy, except an illegal arrest. There is not a fact in the record showing the arrest was otherwise than illegal; and the court, recognizing this, charged the jury that the arrest was illegal. Perhaps the whole time covered by the transaction from the arrest to the homicide would cover not exceeding five minutes, if that long.

Exception was reserved to the charge on manslaughter. The charge is very general. After giving the statutory definitions, the court thus instructs the jury: "In determining the adequacy of the provocation, you should consider in connection therewith all the facts and circumstances in evidence in the case; and if you find that by reason thereof the mind of the defendant at the time of the killing was incapable of cool reflection, and that the facts and circumstances were sufficient to produce such state of mind in a person of ordinary temper, then the proof as to the sufficiency of the provocation satisfies the requirements of the law, and you can consider all the facts and circumstances in determining the condition of the defendant's mind at the time of the killing, and the adequacy of the cause inducing such condition." Further: "If you believe from the evidence beyond a reasonable doubt that defendant with a pistol, that in the manner of its use was reasonably calculated to produce death shot Maddux in a sudden passion aroused by an adequate cause, as herein explained to you, and not in self-defense, nor in a lawful attempt to release himself from illegal arrest, as herein explained, and by the shooting killed said Maddux, you will find him guilty of manslaughter," etc. The contention is that the court's charge is not only deficient in stating the law in regard to manslaughter, but it eliminates that question from the case entirely by the above charge. The court, by using this expression, "nor any lawful attempt to release himself from illegal arrest as herein explained," limited appellant's right to an acquittal of murder on one hand, and an improper consideration of manslaughter on the other, by the jury. Suppose appellant had killed, not in self-defense, but in a lawful attempt to release himself from illegal arrest; that is, that his mind was rendered incapable of cool reflection by reason of the illegal arrest and consequent false imprisonment. This charge given by the court would not authorize the jury to find him guilty of manslaughter, but would eliminate that question. An illegal arrest is regarded in law as a great provocation and an adequate cause to produce passion. In our opinion it is such adequate cause, under the facts of this case, as is brought within the statutory rule.

In the first place it is a false imprisonment, from which the illegally arrested party has a right to free himself, taking care to use no more force than was necessary for that purpose. In the next place, not only was there false imprisonment, but that false imprisonment was accompanied by a direct assault upon appellant. This fact was not controverted in the record. All the witnesses who testify in regard to this matter state that deceased (a large robust man) had appellant (a small man) in this charge, and one of his arms interlocked in that of the other, so as to hold him and prevent his escape. Appellant testified that, when he demanded his release and notified him he was going no farther with him and that he did not propose to be incarcerated in jail, appellant then gripped him the more firmly. Here, then, as before stated, is a false imprisonment, accompanied by an assault on the person; that immediately appellant, using what strength he had, jerked himself loose, and the fatal difficulty followed. Under this state of case, this furnishes adequate cause under the statute. This charge should have informed the jury that if this killing grew out of the illegal arrest, under the facts above stated, and the mind of appellant was thereby enraged to such an extent that it was incapable of cool reflection at the time of the killing, he would be guilty of no higher offense than manslaughter. On the contrary, the court instructed the jury that, in order for him to claim manslaughter, it must be in a lawful attempt to release himself from arrest. He may have exceeded the force necessary to do so; in other words, he may have resorted to his pistol when it was not necessary. If the jury take this view of the testimony, he...