Owen v. State

• Decision Date: 09 February 1910
• Parties: OWEN v. STATE.
• Court: Texas Court of Criminal Appeals

Page 405

125 S.W. 405

OWEN v. STATE.

Court of Criminal Appeals of Texas.

February 9, 1910.

Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.

J. W. Owen was convicted of assault with intent to murder, and he appeals. Reversed and remanded.

H. T. King and Dallas Scarborough, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.

McCORD, J.

Appellant was convicted in the court below for an assault with intent to murder, and his penalty assessed at confinement in the penitentiary for five years.

Briefly stated, the facts show that on the 25th day of August, 1908, the justice of the peace of Precinct No. 7, Taylor county, Tex., issued a warrant of arrest for appellant upon an affidavit filed in his court charging appellant with assault upon a minor. This warrant of arrest was placed in the hands of the constable, Sam Smothers, and Smothers was apprehensive that he would have trouble in arresting appellant. He summoned one D. M. Thomas to assist him in making the arrest. They went to the home of appellant, arriving there about 12 o'clock in the daytime. The witness Smothers was armed with a six-shooter, and the injured party, Thomas, with a Winchester rifle. There were some eight or ten other parties around the home of appellant at the time the arrest was made. As to whether these other parties were a part of the posse we are not advised by the statement of facts. Smothers testified that, when he and Thomas went up to the front of the house, they approached the house on the northeast; that the house fronts east; that he supposed the house to be 14×16 feet with a bedroom on the west; that the house has a door and window on the east side and also a window on the north side; that a person approaching the house would not come in plain view of it until they had crossed the ravine some 40 or 50 yards from the house; that they went up to the fence which was some 20 steps from the house, and crawled under the fence, and, when the witness Thomas got within about 15 steps of the house, Owen, the appellant, stepped to the door, and the witness drew his pistol, leveled it at Owen, and told him to throw up his hands; that when he said that, he further testifies, that appellant dropped behind the door and shot; that appellant shot twice. Mr. Thomas fell, and the witness ran around the corner of the house. The witness is positive that he did not say anything to appellant, and neither did Thomas say anything to appellant, nor did the appellant say anything to them, other than what has been heretofore stated, that he, the witness, told the appellant to throw up his hands and he threw his pistol down on him, the appellant. Thomas' testimony does not contradict this statement on the part of Smothers. Appellant took the stand, and testified that the first he knew of anything he came to the door, and, when he came to the door, he saw Thomas and Smothers, and that Smothers threw a gun down on him, told him to throw up his hands, and fired at him, when he jumped back, grabbed his gun, and returned the fire; that he did not know that Smothers was an officer, or that he had any papers for his arrest; that he saw several parties around the house, and had heard some days before this a rumor to the effect that they were going to mob him.

Now, then, under this state of facts, the court charged the jury as follows: "Upon the law of self-defense, you are instructed that if the defendant had no knowledge of the purpose and capacity of said D. M. Thomas and Sam Smothers at the time they came to his house, and if from the acts of the said D. M. Thomas or Sam Smothers, if any, there was created in the mind of the defendant a reasonable apprehension that he, the defendant, was in danger of losing his life or of suffering serious bodily injury at the hands of the said D. M. Thomas or Sam Smothers, then the defendant had the right to defend himself from such danger or apparent danger, as it reasonably appeared to the defendant viewed from his standpoint," etc. Complaint is made of this charge by appellant in his motion for new trial, and it is claimed that said charge is erroneous because the court denied the appellant the right to defend himself if he knew the purpose and capacity of Thomas and Smothers in coming to his house. Under the facts of the case, this charge was erroneous. As far as the right of self-defense existed under appellant's testimony in the case, it would be wholly immaterial whether the appellant knew or not that the prosecuting witness had come to arrest him, and it was immaterial whether he knew that they had a warrant or not. If the officer came to his house and assaulted the appellant, he had the same right to defend against an attack from the officer as he would any one else, and his right of self-defense would not depend upon his knowledge of the capacity or purpose of the parties in coming to the house. There is no evidence in the record that Smothers or Thomas ever informed the appellant of their purpose in being at the house. The first that appellant knew of their presence was when Smothers threw his gun down upon him and ordered him to throw up his hands. If appellant knew the purpose and object of Smothers was to arrest him and knew that Smothers had a warrant for his arrest, then it would be the duty of the appellant to submit, and, if he resisted the efforts of the officer to arrest him, he then might be guilty of an assault with intent to murder, but if the officer comes upon the citizen, and, without apprising him of his purpose or whether he apprised him of his purpose or not, commenced a deadly assault upon the citizen, most certainly the citizen would have the same right to defend himself against the act of the officer as he would an individual, and the fact that the officer is armed with a warrant does not in any way license him, or give him authority to assault the party against whom he holds the warrant. It is the duty of the citizen to submit to the execution of a warrant, and, if the appellant assaulted the officer, he would then be guilty of either assault to murder or an aggravated assault. What we desire to be understood as saying is that simply because the officer is armed with a warrant does not justify him, the officer, in making a deadly assault upon the citizen, and that the right of the citizen will not be abridged by a knowledge that the officer has a warrant. For the error in this charge of the court, the case will have to be reversed.

2. There are some other questions, however, raised in the record that it will be well to notice. We think the court erred in permitting the state's witness Viola Ellis to testify that the appellant had threatened to kill her and her mother on the morning of the commission of the alleged offense. These were extraneous crimes, and ought not to have been admitted as testimony in this case.

3. We think the court erred in allowing the witness Sam Smothers to testify that he had a conversation with Thomas, and that he summoned Thomas to assist him in making the arrest, and stated to Thomas that he had a man down there that he could not arrest, and who would not surrender, and that he wanted him, Thomas, to help arrest him. The witness Smothers had the right to say he summoned Thomas to assist him in making the arrest, but we think it was prejudicial to the appellant for the witness Smothers to give the details of a conversation he had...