Appellant was convicted of murder in the first degree, and his punishment assessed at death; hence this appeal.
Appellant filed a motion to quash the indictment on the ground that, he being a Mexican, members of his race were discriminated against in the organization of the grand jury which returned the indictment. We have examined the proof on that proposition, and the evidence fails to support the motion. We make the same observation with reference to the motion to quash the special venire, which is predicated on the same testimony.
Appellant also filed a motion to change the venue on two grounds; first, that there was so great a prejudice against him in Karnes County as that he could not expect a fair and impartial trial; second, that there existed a dangerous combination in said county, instigated by influential persons, by reason of which he can not expect a fair trial. Both appellant and the State offered evidence on said grounds. Some fifteen witnesses were introduced by appellant and ten for the State. It was shown that W.T. Morris, who was killed by appellant, was the sheriff of Karnes County, and was a popular citizen; and that appellant was a Mexican. It was also in evidence, that a day or two after the homicide, in Karnes County, he was charged with killing the sheriff and constable of Gonzales County; that an account of the killing of these parties was published in the local papers in Karnes County, of which there were three or four; and also in the Express, News and Post, Texas daily papers which had an extensive circulation in Karnes County; that in said publications appellant was charged with the murder of said parties, *Page 177 and in the local papers appellant was denounced both as a murderer and horse thief, and an account somewhat in detail was given in them of the killing of Sheriff Morris. It is also shown that some five or six hundred dollars was raised by subscription circulated among the citizens of Karnes County for the arrest of appellant for the killing of Morris; a great many citizens in all parts of the county subscribed to said fund, and this was supplemented by one hundred dollars reward, offered by the commissioners of said county for his apprehension. It is shown that, on account of the prominence of the deceased, as also because of the subsequent killing of Sheriff Glover, in Gonzales County, and Constable Snabel, the case was given great notoriety, and was discussed very generally among the citizens of Karnes County. It was also shown that deceased was a member of the Sheriff's Association of Texas, and that sheriffs from other counties, who were members of the association, attended the trial. It was also shown that on appellant's arrest he was not brought back to the county of Karnes, but was carried to jail in Bexar County for safe keeping; and there was some testimony showing some apprerension of mob violence. That immediately on the flight of appellant, posses were raised in the county, who scoured the county as well as adjoining counties in search of appellant. A number of witnesses who were introduced speak of some feeling against appellant immediately after the killing, but state that the feeling had very much subsided. A number of witnesses also state that it was the general opinion that appellant was guilty of killing Morris; and a number say they believe he was criminally guilty, and some of them speak of it in their testimony as a murder. A great majority of the witnesses state, both for appellant as well as the State, that they knew of no prejudice against appellant. Some of these were subscribers to the fund for appellant's apprehension, and some of them belonged to posses engaged in his pursuit; and some of them speak of the case as a murder, but they believed appellant could secure a fair trial in the county. We are bound to gather from this testimony that the case became notorious in Karnes County, and was generally known of and discussed by the citizens of all classes, and that a great majority of those liable to jury service must have formed an opinion as to the guilt or innocence of appellant, and if, as has been held, prejudice and prejudgment amount to the same thing, then, notwithstanding the conclusion drawn by some of the witnesses that no prejudice existed against appellant, we are constrained to believe that what the law terms prejudice, did exist. Randle v. State, 34 Tex.Crim. Rep.; Gallaher v. State, 40 Tex.Crim. Rep.; Meyers v. State, 39 Tex. Crim. 500; Faulkner v. State, 43 Tex.Crim. Rep., 3 Texas Ct. Rep., 575. We also believe that the evidence tends to show a combination of influential citizens in said county against appellant, which would render it difficult for him to secure a fair and impartial trial there. Some sixty or seventy influential citizens of the county subscribed to a fund to secure his *Page 178 arrest, and not only so, — the county as a whole through its commissioners court subscribed to the same fund. True, the testimony shows that this fund was not contributed for his conviction, but for his arrest. Ordinarily men do not contribute for the arrest of a man whom they believe innocent, but rather one whom they consider guilty. There is also in the record a suggestion that no lawyer in the county could be procured to defend appellant, but that a number were ready to volunteer to prosecute. We do not propose to criticise the citizens of Karnes County for subscribing to a fund to capture appellant, nor to censure the commissioners court for so doing, nor to find fault with members of the bar who refused to defend him, but were ready to volunteer to prosecute the case against him. These acts may be commendatory in the citizen. At the same time they do not show the existence in that county of a sentiment calculated to guarantee to appellant a fair trial by an impartial jury. Prejudice is a sinister quality; and the very persons whom it actuates may be unconscious of its existence. Hence, no fault is to be found with those who are willing to testify that, in their opinion, there was no such prejudice in the county as to deny appellant a fair trial. Doubtless they believed that a fair trial could have but one result. However that may be, it occurs to us that the evidence here detailed sufficiently indicates not only that there was a wide spread prejudgment of appellant's case in Karnes County, but that there also existed in said county a dangerous combination of influential persons; and we believe that the venue should have been changed on both accounts. What has been said on the question of the change of venue disposes of this case. However, as it is one of grave importance not only to appellant but to the State of Texas, and inasmuch as appellant has assigned a number of errors, some of which we believe are well taken, in view of another trial of the case we believe it proper to discuss them in order that they may not occur again.
Appellant insists that the court erred in refusing to permit him to prove by the witness Villareal that the mare he had traded a horse to defendant for was good property; that she had not been stolen, but had been in that neighborhood for more than a year. In view of the testimony offered by the State, which was evidently introduced for the purpose of showing that said mare was stolen, this testimony was competent. But as will hereafter be seen, the testimony offered by the State on this subject was not competent evidence, and this being excluded, the testimony offered by appellant as to his ownership of the mare will not be admissible.
There was no error in the action of the court refusing to permit appellant to prove by the witness Mayfield, that after the killing of Morris he heard expressions of citizens of Karnes County of a desire to mob or lynch defendant. There is nothing in the record indicating that appellant knew of such expressions, or that he was actuated by such expressions in anything that he did after the killing of Morris.
By assignments of error numbers 8, 9, 10 and 11, he criticises the *Page 179 action of the court admitting testimony of Sheriff Avant, Gonzales, Villareal and Martin. This evidence was introduced by the State in order to show that deceased (Morris) had been informed by a credible person that appellant was guilty of the theft of horses, and was about to escape, and that the officer did not have time to procure a warrant for his arrest; and that consequently he was authorized to make the arrest of appellant without a warrant. In order to have rendered said testimony admissible, it should have shown the circumstances or conditions under which Sheriff Morris, of Karnes County, was authorized to arrest appellant without a warrant, under article 250, Code of Criminal Procedure. Without reciting this testimony, we would state that it does not show by satisfactory proof that appellant and his brother Romaldo, one or both of them, had committed the theft of any person's horse or horses. Sheriff Avant did not know the name of the person he was pursuing, nor was any reasonable description given of him. That he was a medium-sized Mexican, with a big red broad-brimmed Mexican hat, might apply to any number of Mexicans. True, it was ascertained by the sheriff from Villareal that a Mexican by the name of Gregorio had passed that way with some horses about a month before the homicide. But this would not suffice to identify appellant, nor was it shown that he suited the description given. No person is shown to have had any horses stolen, much less that appellant was the guilty party. There was not enough testimony to have authorized an affidavit for the arrest of appellant; nor was it shown that Gregorio Cortez was about to escape, and there was no time to procure a warrant for his arrest. On the contrary, the evidence is to the effect that he was at his home in the county, engaged in making a crop, and that after the sheriff learned of his whereabouts, on the morning of the homicide, he was then within six miles of the justice of the peace, and could have obtained a warrant had he so desired. As stated above, taking this evidence altogether, it did not authorize an arrest without warrant, nor was appellant shown to have any knowledge of the facts related; consequently this evidence should have been excluded by the court, on the same principle that the court would have been required to refuse to admit a defective warrant for the arrest of appellant. This is not like the case of Jacobs v. State, 28 Texas Crim. App., 79, or Cortez v. State, 43 Tex.Crim. Rep., which followed the former case. In both of said cases appellants were shown to be fugitives from justice at the time of their attempted arrest; they were thereby charged with notice of the object of the officers in pursuing them. Not so here, as there was absolutely no testimony showing or tending to show that appellant was at the time a fugitive from justice, or was then endeavoring to escape. In regard to the attempted execution of the arrest, it will be observed that the statute does not appear to regulate the mode of arresting without warrant. Reasonably, however, the same rule would apply as in cases of arrest under a warrant; that is, if the official character of the officer is not known to the party to be arrested, this should be made known and *Page 180 the party also informed of the nature and character of the accusation against him. There is no evidence that the official character of Sheriff Morris was known to the accused. He simply informed him that he would arrest him and Romaldo for horse stealing. We think the sheriff should have disclosed his official character, and that it had been made known to him by satisfactory proof on the part of a credible person, naming him, that appellant and his brother had stolen the horses of some person, and that he arrested them on said account. Montgomery v. State, 43 Tex.Crim. Rep.. So it follows, that there being no authority for the arrest of appellant without warrant, and the method pursued in attempting said arrest not being in accordance with law, said arrest was illegal and all the testimony relating thereto should have been excluded by the court.
In this connection appellant complains of the charge of the court on self-defense, and particularly to subdivisions 36 and 37, which predicate appellant's right of resistance to an unlawful arrest on his knowledge that the attempted arrest was illegal. Inasmuch as the attempted arrest under the circumstances attending the killing are fully disclosed in the testimony of Boone Choate, who accompanied Sheriff Morris to the scene of the homicide, we will state his testimony substantially on this subject, as follows: That the sheriff, Trimmell and himself proceeded from Martin's to Thulemeyer's ranch; they left Trimmell at a gate about a half mile from the house at some pens, he getting out of the surrey there. Morris and himself went to the house where the Mexicans lived; arriving at the house, they stopped at the fence, about sixty feet from the house; they saw two Mexican men and a woman, and some children at the house; they were on the back gallery. Appellant was sitting on the floor on the back gallery at the left of the door, with his back to the wall. Romaldo, his brother, was sitting on the gallery, on the steps; he thought the woman was Leona, defendant's wife. When they drove up, witness said, "Good evening," and they replied, "Good evening," in Spanish. Romaldo came out to the fence. When he reached them, witness asked him if Gregorio lived there, and he said, "Yes;" and then told him, "I wanted to see him." Romaldo turned and walked about halfway back to the steps and spoke to appellant, who immediately got up and came out, Romaldo walking back ahead of him. Romaldo walked to the line of the fence, and stopped. Gregorio walked up about ten feet behind Romaldo, and stopped. Morris then told witness to ask defendant his name, and he answered "Gregorio." Then told witness to ask him his other name, and defendant said it was "Lira." Morris then told witness to ask Romaldo his name, and he answered "Romaldo Lira." Then asked him if they were brothers; and Romaldo answered yes. Then asked Romaldo, by request of Morris, if he had traded a horse to Andres Villareal about a month before; and he replied no. Then asked Gregorio if he had traded horses with Villareal, and he answered no. Then asked appellant if he owned any other horses, and he said *Page 181 he owned two horses and a mule, and that they were at work on the place, and were his; that he had bought and paid for them. During the conversation Morris and witness were sitting in the front seat of the surrey; no one was in the back seat. After the conversation was finished, Morris got out of the surrey and stepped over the fence to the right of the two men, and stopped there about twelve feet from them. He then told witness to tell them he was going to arrest both of them, which witness interpreted to them. Romaldo asked, "What for?" Witness replied, under the direction of Morris, "For stealing horses." At this juncture defendant pulled his pistol, and said, "Nobody can arrest me." Romaldo then kind of ran at Morris like he intended to catch him; then Morris pulled his pistol and shot Romaldo. Romaldo was about four or five feet from Morris when Morris fired, and Romaldo fell right at Morris' feet. Morris then turned and shot at defendant, and in a second after that defendant shot at Morris, and Morris commenced to reel and stagger, going down the wire fence towards the gate. Defendant followed him up; Morris fell and defendant ran up and shot him again. Witness further stated, that at the time Morris fired at defendant, defendant had his pistol in his hand bringing it up on a level towards Morris. Upon cross-examination witness stated that Morris shot twice before defendant shot; that he supposed Morris was the quickest man; that appellant began to pull his pistol, and after he had begun to pull his pistol, Morris got his out and shot before defendant got his ready to shoot; that he did not see Romaldo make any effort to draw any arms. Defendant did not ask what they wanted to arrest him for, nor ask for any writ; nor did Morris tell for the theft of what horse he arrested him. When Romaldo advanced on Morris, he was sorter in a stooping or bending position, and was coming directly towards Morris. Did not hear defendant say anything to Morris during the shooting. That after Morris fell, appellant shot at him, and then sorter straightened up and looked around; and at this witness left the place.
On this testimony the court should not have submitted to the jury the issue as to the legality of the arrest, but should have informed them that the attempted arrest of appellant and his brother Romaldo by Morris was illegal. This being true, what were appellant's rights in the premises? This question has been before the courts in this and other States a number of times, and has been much discussed; but the question is still frought with difficulty. Some of the authorities say that an attempted arrest without legal authority, though the want of authority is unknown to the party at the time, if a killing occur in resistance of such arrest, the offense will be of no higher grade than manslaughter. Goodman v. State, 4 Texas Crim. App., 349; Ross v. State, 10 Texas Crim. App., 456; Jones v. State, 26 Texas Crim. App., 1; Commonwealth v. Drew, 4 Mass., reported in the Harrigan Thompson's Cases of Self-defense, p. 705; 1 Bish. Crim. Law, sec. 868; 2 Id., sec. 699, subdivision 2. But in Ex parte Sherwood, 29 Texas Crim. App., 334, and Miller v. State,31 Tex. Crim. 699, the court expresses itself *Page 182 to the effect that a killing in resistance of an unlawful arrest is not necessarily no more than manslaughter, but that it may be manslaughter. It was held, "that an attempt to arrest an accused person unlawfully is esteemed a great provocation, and reduces the killing to manslaughter by producing such passion as would render him incapable of cool reflection. We have not held that a killing to prevent an unlawful arrest must of necessity be nothing greater than manslaughter. From the rule other matters become of the greatest importance. There must be an attempt to make the arrest. The attempt must be to make an unlawful arrest; the prisoner must know of the attempt, and he must know that the attempt is to make an unlawful arrest. Why? Because without such knowledge the provocation could have no effect upon him whatever, and hence without such knowledge it is absolutely certain that his passions, if any, were not caused by this provocation." And see Stockton v. State, 25 Tex. 772. We understand from these authorities, that in arriving at a correct conclusion in homicide cases the killing must be viewed from the defendant's standpoint; that is, we must ascertain as nearly as possible from the evidence the reasons or motives which moved or induced the accused to do the killing. The facts and circumstances of every case give character to it; and these may indicate, where the killing is in resistance to an unlawful arrest, that it was murder or manslaughter, as shown by the facts in each particular case. Of course, where the arrest is under legal authority there is only one contingency where such an arrest can be rightly resisted; that is, where the force used to secure it is excessive. But if the authority to make an arrest is wanting, the person attempting such arrest is in the wrong and a trespasser, and the person so arrested can resist him, regardless of his knowledge that the arrest was illegal, using such force only as is reasonably necessary to prevent the arrest or free himself from such illegal restraint. If he use no more force than is reasonably necessary to prevent the arrest or to free himself from such illegal restraint, he would be guilty of no offense. But if such person in resisting an arrest, or in endeavoring to free himself from an illegal arrest, uses more force than is reasonably necessary, he would be guilty at the least of manslaughter. It would not necessarily follow that his offense would be no more than manslaughter. The excessive force used might be so enormous as to suggest malice; or this, with other circumstances, might suggest a malicious killing. According to the rule laid down in Sherwood's case, the character of the homicide would be determined from the facts and circumstances surrounding it from defendant's standpoint. If, in the attempted arrest, deceased did no more than make a simple assault on appellant and his brother, or attempted to make such assault, and did not use a deadly weapon, and neither appellant nor his brother were put in danger of life or serious bodily injury, actual or apparent, and appellant in the first instance resorted to a deadly weapon and slew deceased, he could not set up self-defense. If Morris attempted an illegal arrest of appellant *Page 183 and his brother, and appellant drew his weapon merely as a precautionary measure, and not for the purpose of killing Morris because he had demanded his arrest, and Morris thereupon drew his pistol and shot Romaldo, and then shot at appellant, and appellant in turn shot and killed Morris, he would be guilty of no offense, for such killing would be in his necessary self-defense. Again, if appellant, from the acts and conduct of Morris in attempting to arrest him and his brother, reasonably apprehended that Morris would resort to a deadly weapon in order to accomplish the arrest, then he had a right to anticipate him and prepare himself by drawing a weapon to prevent being arrested. In such case he would not be required to permit his assailant to take the lead, and thereby give him the advantage, but if the surroundings indicated a resort to a serious or deadly conflict on the part of Morris, he could prepare to meet it; and if Morris then made any demonstration, either upon himself or his brother, showing an intent to inflict serious bodily harm upon either, he would be authorized to slay him. Ross v. State, 10 Texas Crim. App., 465. In this connection we would also refer to the evidence of Leona Cortez, the wife of appellant, who testified that appellant did not pull his pistol and present it at deceased until deceased had drawn his pistol and shot Romaldo. In accordance with this theory, if deceased attempted an illegal arrest of appellant or his brother, and in the first instance, before any hostile demonstration on the part of either defendant or Romaldo, resorted to a deadly weapon and shot and killed Romaldo, and appellant then drew a pistol to protect his brother or himself, and deceased, after shooting Romaldo, shot at appellant, and appellant then shot deceased, and he did so in order to protect himself, in such case he would not be guilty of any offense.
The charges as given by the court on this subject are numbered subdivisions 33 to 37 inclusive. Some of them are not in accord with the views herein expressed. We have not attempted to lay down any form for such charge, but have merely suggested the principles which should govern a charge predicated on the evidence embodied in this record, and as a criterion by which the court should be governed in the subsequent trial of the case, should the evidence be the same. For the errors discussed, the judgment is reversed and the cause remanded.
Reversed and remanded. *Page 184