HABPEB, Judge.
Appellant was convicted of murder and his punishment assessed at fifty years confinement in the State penitentiary.
J. J. Connell was constable of Lometa precinct in Lampasas County. Hugh Supple was his deputy. The Lometa Cedar Company had a number of men engaged in chopping cedar near Lometa, and appellant
had been in the employ, of the company. H. M. Levison was manager of the cedar company, and paid them on what was termed a “chopper’s ticket”
issued
by the superintendent when the cedar one had cut was checked. On the morning of the 7th of last April appellant presented to Mr. Levison a “chopper’s ticket” for $34.75, payable to H. S. McDonald, purporting to have been signed by Newel Graves. It is conclusively shown by this record that the ticket was a forgery. When appellant presented the ticket to Mr. Levison he represented that his name was H. S. McDonald and the ticket had been issued to him for timber cut. Mr. Levison, having his suspicions aroused, investigated and ascertained that the ticket was a forgery, and hunted up appellant and secured back the check, appellant having failed to cash it, although he had made several efforts to do so. The constable, Connell, and his deputy being made aware of these facts, went with appellant to the office of Mr. Levison to investigate the matter and ascertain if the check was really forged. Appellant did not go in the office, but stood just outside, while Connell was in the office making the investigation. The record would disclose that appellant was. not over ten or twelve feet from Connell and could and .probably did hear the conversation going on, for when the conversation had reached the point where it would become evident that the officers were being informed of facts that would show the ticket was a forgery, and he had passed it, assuming the name of H. S. McDonald, appellant fled. He was pursued by Supple, who was also on the outside, and Supple fired in the air to stop appellant. Appellant stopped, but when he turned it was with a sixshooter in his hand, and he forced Supple to abandon the pursuit and go back. Connell being made aware of the flight, got on his horse and pursued appellant, Supple informing him that appellant was armed. The above facts may be said to be undisputed, the conflict in the test!-, mony appearing in that portion relating to the final encounter.
The testimony of H. C. Wadlington and others shows conclusively that appellant knew Connell was an officer and constable of the precinct ; he also knew that he. was guilty of passing or attempting to pass a forged instrument, if in fact not guilty of forging the ticket. There can be no question in this case but that appellant knew the officers were attempting to arrest him, and for what crime they sought his arrest, and further, that he wilfully and intentionally resisted arrest. The officers had no warrant, and appellant insists the officers had no right to make an arrest without a warrant, or at least, the question was raised by the evidence that the officers had time to procure a warranty and, therefore, should not have attempted to arrest without procuring a. warrant. Article 262 of the Code of Criminal Procedure provides “that where it is shown by satisfactory proof 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 officer may, without warrant, pursue and arrest the person accused.” If the facts of any case ever brought it within 'the provisions of this article of the Code, this case is brought within its provisions. The constable did not arrest appellant upon
being informed of the facts, but goes with him to Mr. Levison to make an investigation, evidencing a desire not to unduly harass or annoy appellant by an arrest, if the facts did not justify an arrest, or if it should appear that appellant was acting in good faith in the premises. "When the officer gets ten or twelve feet from appellant, and is investigating the charge against appellant brought to his attention, appellant flees. Under such circumstances we think Constable Connell not only had the legal right to pursue and arrest appellant, but he would have been recreant to his duty as an officer if he had not done so. Hill v. State, 37 Texas Crim. Rep., 416.
When the case was called for trial appellant moved to postpone or ■continue the case, that his attorneys, who had been employed two days prior thereto, would have time to properly prepare for trial. If they were the only attorneys in the. case there might be merit in this contention, but the record before us discloses that when appellant was indicted he was brought into court on the 12th of April, and the cause set for April 19th. On the 12th, the court being informed that appellant had no counsel, the court appointed Mr. T. S. Alexander, an attorney of the Lampasas bar, to represent appellant, and from the record before us we do not think he was lax in the performance of his duties.
Appellant in the motion also stated that he desired the hat obtained by the officers when he was arrested, as it was the hat he was wearing •on the day Connell was shot, he contending that the hat would show Connell shot a hole through his hat. He also said, in addition to the other witnesses in attendance on court, he desired A. B. Mace,. sheriff ■of Lampasas County: Hugh Miller, sheriff of San Saba County; Sheriff Perkins of Bunnels County, and James Flint, also of Bunnels County. The attendance of all these witnesses was secured, and the hat also ■obtained and was introduced in evidence. The statutes of our State, article 557, gives only two days after copy of indictment has been served in which to prepare for trial, and if he desires more time than this he must state reasons why it is necessary that he be given more time in his motion for postponement. We have carefully considered this motion, in the light of the evidence adduced on the trial, and we would not feel authorized to hold that the court erred in overruling the motion. Mason v. State, 74 Texas Crim. Rep., 256, 168 S. W. Rep., 115; Conway v. State, 53 Texas Crim. Rep., 216, 108 S. W. Rep., 1185.
In bill of exceptions No. 2 the entire charge of the court is copied, together with appellant’s exceptions to the charge. As the court amended his charge so as to conform to exceptions Nos. 1 and 2, these should have been omitted from the bill of exceptions.
The third exception relates to that portion of the charge in which the court instructed the jury that a peace officer who is given information by a credible person that a felony has been committed and the •offender is about to escape, may arrest without warrant, and it is the duty of the officer to do so, and says the converse of this proposition should also have been given in charge. We think the converse of the
proposition was fully given as applicable to the evidence in this case. That appellant was guilty of a felony is made plain by this record;, that the officer had been so informed is also made manifest; it is also-proven beyond dispute that appellant, -when he ascertained that the officer was being made aware of these facts, fled. It was the duty of the officer to pursue and arrest him without warrant, for there was no-time to secure a warrant. If the officer had undertaken to secure a warrant, at the rate appellant was traveling, he could and would have-made his escape, as he subsequently did anyway.
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HABPEB, Judge.
Appellant was convicted of murder and his punishment assessed at fifty years confinement in the State penitentiary.
J. J. Connell was constable of Lometa precinct in Lampasas County. Hugh Supple was his deputy. The Lometa Cedar Company had a number of men engaged in chopping cedar near Lometa, and appellant
had been in the employ, of the company. H. M. Levison was manager of the cedar company, and paid them on what was termed a “chopper’s ticket”
issued
by the superintendent when the cedar one had cut was checked. On the morning of the 7th of last April appellant presented to Mr. Levison a “chopper’s ticket” for $34.75, payable to H. S. McDonald, purporting to have been signed by Newel Graves. It is conclusively shown by this record that the ticket was a forgery. When appellant presented the ticket to Mr. Levison he represented that his name was H. S. McDonald and the ticket had been issued to him for timber cut. Mr. Levison, having his suspicions aroused, investigated and ascertained that the ticket was a forgery, and hunted up appellant and secured back the check, appellant having failed to cash it, although he had made several efforts to do so. The constable, Connell, and his deputy being made aware of these facts, went with appellant to the office of Mr. Levison to investigate the matter and ascertain if the check was really forged. Appellant did not go in the office, but stood just outside, while Connell was in the office making the investigation. The record would disclose that appellant was. not over ten or twelve feet from Connell and could and .probably did hear the conversation going on, for when the conversation had reached the point where it would become evident that the officers were being informed of facts that would show the ticket was a forgery, and he had passed it, assuming the name of H. S. McDonald, appellant fled. He was pursued by Supple, who was also on the outside, and Supple fired in the air to stop appellant. Appellant stopped, but when he turned it was with a sixshooter in his hand, and he forced Supple to abandon the pursuit and go back. Connell being made aware of the flight, got on his horse and pursued appellant, Supple informing him that appellant was armed. The above facts may be said to be undisputed, the conflict in the test!-, mony appearing in that portion relating to the final encounter.
The testimony of H. C. Wadlington and others shows conclusively that appellant knew Connell was an officer and constable of the precinct ; he also knew that he. was guilty of passing or attempting to pass a forged instrument, if in fact not guilty of forging the ticket. There can be no question in this case but that appellant knew the officers were attempting to arrest him, and for what crime they sought his arrest, and further, that he wilfully and intentionally resisted arrest. The officers had no warrant, and appellant insists the officers had no right to make an arrest without a warrant, or at least, the question was raised by the evidence that the officers had time to procure a warranty and, therefore, should not have attempted to arrest without procuring a. warrant. Article 262 of the Code of Criminal Procedure provides “that where it is shown by satisfactory proof 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 officer may, without warrant, pursue and arrest the person accused.” If the facts of any case ever brought it within 'the provisions of this article of the Code, this case is brought within its provisions. The constable did not arrest appellant upon
being informed of the facts, but goes with him to Mr. Levison to make an investigation, evidencing a desire not to unduly harass or annoy appellant by an arrest, if the facts did not justify an arrest, or if it should appear that appellant was acting in good faith in the premises. "When the officer gets ten or twelve feet from appellant, and is investigating the charge against appellant brought to his attention, appellant flees. Under such circumstances we think Constable Connell not only had the legal right to pursue and arrest appellant, but he would have been recreant to his duty as an officer if he had not done so. Hill v. State, 37 Texas Crim. Rep., 416.
When the case was called for trial appellant moved to postpone or ■continue the case, that his attorneys, who had been employed two days prior thereto, would have time to properly prepare for trial. If they were the only attorneys in the. case there might be merit in this contention, but the record before us discloses that when appellant was indicted he was brought into court on the 12th of April, and the cause set for April 19th. On the 12th, the court being informed that appellant had no counsel, the court appointed Mr. T. S. Alexander, an attorney of the Lampasas bar, to represent appellant, and from the record before us we do not think he was lax in the performance of his duties.
Appellant in the motion also stated that he desired the hat obtained by the officers when he was arrested, as it was the hat he was wearing •on the day Connell was shot, he contending that the hat would show Connell shot a hole through his hat. He also said, in addition to the other witnesses in attendance on court, he desired A. B. Mace,. sheriff ■of Lampasas County: Hugh Miller, sheriff of San Saba County; Sheriff Perkins of Bunnels County, and James Flint, also of Bunnels County. The attendance of all these witnesses was secured, and the hat also ■obtained and was introduced in evidence. The statutes of our State, article 557, gives only two days after copy of indictment has been served in which to prepare for trial, and if he desires more time than this he must state reasons why it is necessary that he be given more time in his motion for postponement. We have carefully considered this motion, in the light of the evidence adduced on the trial, and we would not feel authorized to hold that the court erred in overruling the motion. Mason v. State, 74 Texas Crim. Rep., 256, 168 S. W. Rep., 115; Conway v. State, 53 Texas Crim. Rep., 216, 108 S. W. Rep., 1185.
In bill of exceptions No. 2 the entire charge of the court is copied, together with appellant’s exceptions to the charge. As the court amended his charge so as to conform to exceptions Nos. 1 and 2, these should have been omitted from the bill of exceptions.
The third exception relates to that portion of the charge in which the court instructed the jury that a peace officer who is given information by a credible person that a felony has been committed and the •offender is about to escape, may arrest without warrant, and it is the duty of the officer to do so, and says the converse of this proposition should also have been given in charge. We think the converse of the
proposition was fully given as applicable to the evidence in this case. That appellant was guilty of a felony is made plain by this record;, that the officer had been so informed is also made manifest; it is also-proven beyond dispute that appellant, -when he ascertained that the officer was being made aware of these facts, fled. It was the duty of the officer to pursue and arrest him without warrant, for there was no-time to secure a warrant. If the officer had undertaken to secure a warrant, at the rate appellant was traveling, he could and would have-made his escape, as he subsequently did anyway. Now the main conflict in the testimony is as to who fired the first shot, 'appellant or the-deceased. But all the witnesses show that Connell was a one-armed man, and could not and did not draw a pistol until his horse was stopped; that prior to this time appellant had drawn his pistol, and as Connell'got off of his horse, he was advancing on Connell with a pistol drawn, and we think the court's charge in presenting the converse of the above proposition, if anything, presented it more favorably than appellant was entitled to, for the court instructed the jury' if they believed Connell fired the first shot to acquit appellant. _ The court, at the instance of appellant, gave the following special charge in addition to his main charge:- “You are charged that if you believe from the evidence that the defendant attempted to escape and evade arrest by Hugh Supple, deputy constable of Lampasas County, and that the said Supple made an attack on the defendant from which it appeared to the defendant, viewed from his standpoint that the said Supple was about to kill him or do him serious bodily harm, and that the defendant continued his retreat in attempting to evade arrest and was pursued by said Supple and others, and that in a short time thereafter J.
J.
Connell pursuing the'defendant and intercepting him and from the acts and demonstrations, if any, of the said Connell as they appeared to the defendant'at the time, viewed from his standpoint, that the said Connell was continuing the attack made upon him by the said Supple and was about to inflict upon him death or'serious-bodily injury, then you are instructed that the defendant would have the right to shoot in his own defense and to kill the said J. J. Connell.”
There is no question of greater force being used than was necessary in this ease. When Supple pursued appellant/ he' drove Supple back at the point of a pistol. When Connell overtook him he had his pistol ready for instant use, and used it, therefore the issue Uf resorting to greater force than was necessary to efectúate the arrest does not arise in the case, and this exception to the charge presents no error.
The following paragraph of the charge of the court was exeepted to on the grounds named below: “If, however, the defendant did not resist the said J.
J.
Connell, but was merely attempting to escape or evade arrest, then the said Connell would have had no right to kill the defendant to prevent his escape and if you should find that the deceased first drew'his pistol and shot at the defendant to kill him in order to prevent his escape, then you'are instructed that the defendant had the right to defend himself from such attack by the suid J. J". Connell, and
if in defending himself from snch an assault he killed the said Connell, he would be justified in so doing, and yon should acquit him.”
[Behearjng denied December
22,
1915. — Beporter,]
The first insistence is that the charge intimates to the jury that if •appellant was resisting arrest, Connell would have the right to kill him. The charge is subject to no such criticism. The next criticism is that the charge limits the right of self-defense, in that it only justifies him if Connell shot at him to kill him, and “does not tell the jury what right the defendant had if it appeared to him that deceased was about to inflict on him serious bodily injury.’' In some character of eases this exception might be well taken. But the evidence, and all the evidence, shows that whoever fired the first shot, appellant and deceased •advanced towards each other continuing to shoot with deadly weapons until Connell had emptied his pistol; that then it was when Connell had thrown his pistol away and called to appellant not to shoot any more, that appellant fired the fatal shot. Connell was struck by only one bullet, this ball passing through the lower part of his heart. The doctor says such a shot produces instant death. In such a case the issue of inflicting serious bodily injury and not to kill does not arise, and the criticism is without merit under the evidence in this ease. If appellant had objected to this paragraph of the charge on the ground that it shifted the burden of proof, there might and would be merit in it, if the court had not given the special charge requested by appellant curing •such error.
The above are all the exceptions reserved to the charge of the court, •and the special charges requested and refused were fully covered by the court’s charge and special charge given, in so far as they presented the law of this ease.
The only other exception in the record is that the court erred in not permitting appellant to prove by Sheriff Mace that when he reached Lometa (after the homicide) there was great public excitement and a great many armed men hunting for appellant, counsel stating that they expected the answer to such questions to explain the flight of defendant. As it is manifest from the record that appellant had already fled before the sheriff arrived at Lometa, and had fled immediately upon the killing of Connell before any citizens had time to gather and begin a search, this action of the court presents no error. The court, in approving the bill, says: “The defendant had offered no testimony to show why he fled from Lometa after shooting deceased, he not testifying in his own behalf. It was not shown that the defendant knew either of the feeling at Lometa aroused by his acts, or that armed men were hunting him; however, the sheriff, Albert Mace, did testify that he and a large number of armed men were hunting for the defendant in the vicinity of Lometa.”
We have carefully reviewed each bill of exceptions and each ground of the motion for a new trial, and none of them present any matter which would call for a reversal of this case.
The judgment is affirmed. .
Affirmed.