Weatherford v. State

• Decision Date: 08 February 1893
• Citation: 21 S.W. 251
• Parties: WEATHERFORD v. STATE.
• Court: Texas Court of Criminal Appeals

21 S.W. 251

WEATHERFORD v. STATE.

Court of Criminal Appeals of Texas.

February 8, 1893.

Appeal from district court, Tyler county; W. H. Ford, Judge.

Ed Weatherford was convicted of murder in the second degree, and appeals. Reversed.

Stephen P. West, L. F. Chester, and Gordon Bullitt, for appellant. R. L. Henry, Asst. Atty. Gen., for the State.

SIMKINS, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at 25 years in the penitentiary, from which judgment he appeals to this court.

The appellant was at the depot in the town of Hyatt, with a six-shooter, making a negro dance, when one Edwards, acting as deputy sheriff, summoned the deceased, Jack Bowers, to assist him in disarming the defendant. The officer demanded his pistol, but he refused to give it up, and, when Edwards advanced on him, he shot Bowers in the stomach, who died next day. He also shot Edwards, and attempted to shoot him a second time, in the head, but the pistol snapped. He then beat Edwards in the head with the pistol, and escaped. On the trial the appellant questioned the validity of Edwards' appointment. Edwards testified without objection that he had been acting four or five months as deputy sheriff, under written appointment from Ensloe, the sheriff of Tyler county, and he had recorded his oath of office, but not his appointment. It is also shown that appellant was aware that Edwards was acting as such deputy. Conceding that Edwards was not an officer de jure, it is clearly shown he was an officer de facto. Bish. Crim. Law, § 464; Bish. Crim. Proc. 185, 186. Lord Ellenborough, adopting Lord Holt's definition, declared a de facto officer to be one who has the reputation of being the officer, and yet is not a good officer in point of law. Rex v. Corp. of Bedford Level, 6 East, 356. In State v. Carroll, 38 Conn. 449, the supreme court of Connecticut, in an elaborate opinion, held a de facto officer is one who acts under color of a known and valid appointment, but has failed to conform to some precedent requirement,—as to take an oath, give a bond, or the like. Such is the holding in Texas, (Cox v. Railway Co., 68 Tex. 230, 4 S. W. Rep. 455; Thompson v. Johnson, 84 Tex. 554, 19 S. W. Rep. 784; McKinney v. O'Connor, 26 Tex. 14;) and so in other states, (see Petersilea v. Stone, 119 Mass. 465; Town of Plymouth v. Painter, 17 Conn. 585; Rice v. Com., 3 Bush, 14; Brown v. Lunt, 37 Me. 423; Gregg Tp. v. Jamison, 55 Pa. St. 468; Commissioners v. McDaniel, 7 Jones, [N. C.] 107; People v. White, 24 Wend. 539.) In the case of Margate Pier Co. v. Hannam, (decided in 1833,) 3 Barn. & Ald. 266, it was held that a justice's acts were valid as to third persons, though he had not taken the oath which the statute made a condition precedent to his right to act as such, and the same principle applies in respect to ministerial officers. Lisbon v. Bow, 10 N. H. 167; Merrill v. Palmer, 13 N. H. 184. In State v. Dierberger, where the constitution of Missouri requires all officers, before entering on the duties of their office, to take and subscribe an oath to support the constitution and faithfully demean themselves in office, and a deputy constable acted without taking the oath, it was held he was an officer de facto. 2 S. W. Rep. 287. If Edwards was an officer de facto, and he summoned deceased, John Bowers, to his assistance in arresting appellant, the latter was justifiable in obeying him. Bish. Crim. Law, § 464; Watson v. State, 83 Ala. 60, 3 South. Rep. 441. The evidence clearly shows a violation of law in the presence of the officer, who, believing it was his duty to arrest defendant, proceeded to do so, summoning deceased to assist him. Deceased was unarmed, and so was Edwards. It was shown that appellant was making a negro dance, by aiming a pistol at his feet. Some of the witnesses speak of him "as having fun with the negro," but such an amusement certainly demanded the interposition of the law. Appellant knew he was violating the law. He was told by Edwards that it was his duty to arrest him. He knew that he was in no danger of his life, or of serious bodily injury, yet he deliberately killed the deceased, and attempted to kill Edwards, to avoid being disarmed, although believing Edwards to be an officer of the law. Appellant insists the court should have charged the crime would be no higher than manslaughter, as the arrest was illegal. In the Miller Case, 20 S. W. Rep. 1103, (decided at this term,) this court lays down the doctrine that even in illegal arrests of an ordinary character the killing may be done under such circumstances of deliberation or cruelty as will render it murder upon express malice. But the record here shows that Bowers was killed in the discharge of duty as a citizen of this state. It surely cannot be maintained that citizens who are summoned to assist known and recognized officers in the discharge of their duties act...