When the opinion was handed down I could not agree with the affirmance. I do not purpose here to enter into a lengthy discussion of the case. In the first place, I believe the court should have granted the continuance or delay of the trial in order that the attorneys might inform themselves of the case as a necessary step to enable them to defend their client. I need not make any further statement than was made by Judge Harper in the opinion affirming. Where the Constitution guarantees the right to an accused person to be heard by himself or his counsel, it evidently means ample time for preparation to try the case on the law and the facts. Messrs. Matthews Browning were employed in the case to assist Mr. Alexander, who had been appointed by the court. Mr. Alexander had been busy, and had not practiced criminal law to any extent. Messrs. Matthews Browning had been employed just a day or two before the case was to be tried and had not time to look into the case and examine into it and see the witnesses and find out exactly what the case was. It could have injured the State in no way to have postponed the case a few days that these gentlemen might look into the case and see that their client had a fair trial such as the law and facts would indicate or guarantee. The fact that they may have had two days in which to prepare and file pleadings as authorized by the statute, does not meet this question, and in fact, in my judgment, has but little or no bearing upon it. The accused is entitled to the two days service and copy of indictment in which to file pleadings and matters of that sort, but that does not pertain to the general preparation of the case for trial before the jury, except as incidental to the main trial. Those are but steps of preparedness in filing pleadings. It does not preclude, nor was it intended to operate upon the question that defendant ought to be granted sufficient time to understand his case and find out what the facts were so he might prepare the case and properly present it to the court and jury.
The next question is one of considerable importance to the defendant, as the question of manslaughter was very fully and elaborately in the case. The theory of the State was that appellant had forged the document mentioned in the prevailing opinion and had presented it to the manager of the Lometa Cedar Company in the town of Lometa. This was known to the officers some time before the difficulty came up. They talked to defendant about it, and went around to the office of the head man of this company and defendant accompanied them. It seems to have been an hour or more after they ascertained it, and most of this time they were with defendant or about him. The justice of the peace lived within telephone call and close by the little town of Lometa where these matters occurred. He could have been called up by phone and gotten to town in fifteen minutes or less time. It seems they had an hour or more in which to prepare affidavits or affidavit as a basis for warrant of arrest. This was not done or attempted to be done. The justice of the peace was not even notified. Mr. Connell, the deceased, went into the house where the manager of the cedar company *Page 399 was and talked with him about the matter. Supple, another officer, was on the outside, as was defendant, standing somewhere in the neighborhood of the house, and while standing there appellant walked away. Supple drew his pistol, and he says fired up in the air to scare appellant. There is nothing to indicate appellant knew he was shooting in the air, for his back was to him as he was walking away. He reached for his pistol and told Supple to stop, not to do that, or he would kill him, and continued walking away perhaps with the intention of escaping, and we might be warranted in concluding such was his purpose. Upon hearing the shot Connell, the constable, came out, Supple being his deputy. He instructed Supple to follow the defendant while he, Connell, would head him off. Connell was a one-armed man, and jumped on his horse and undertook to get ahead of appellant, and succeeded. The shooting began between them with the result that Connell was killed.
The State's theory is that appellant fired the first shot. Defendant's theory is that Connell fired the first shot. Inasmuch as the jury and this court in affirming the judgment took the view of the State, it is unnecessary to discuss that phase of it. The defendant's theory along this line was about this, and he introduced witnesses to prove it: That as Connell approached him horseback he (Connell) had his pistol in his hand, and one or more of the witnesses swear that Connell fired first, and that appellant returned the fire. One or two witnesses testified something was said between them but they did not hear it. If there was anything said between them it is not detailed in the testimony, because it was not heard by any of the witnesses. The details of the fight and the shots and all that occurred between them at the time I deem unnecessary for what I care to state. Suffice it to say, there was a sharp issue as to who fired the first shot. There is testimony enough, had the jury believed it, and from witnesses who seem to be unimpeached in any way, that Connell did fire the first shot.
This brings up sharply the question of illegal arrest. If Connell had the time to have had the presence of the justice of the peace, or gone to his house, a mile or so from town, and made affidavit and secured a warrant for his arrest, then he had no right to make the arrest without a warrant. He made no attempt to file affidavit or secure one. All the efforts he made are based upon the idea that as the defendant had forged the instrument or was passing the instrument, he had the right to arrest him, even though he had time to secure a warrant. This is not the law. He made no attempt to secure a warrant. Under those circumstances the question of illegal arrest was raised from that viewpoint, and that would predicate the basis for manslaughter. But another phase is, if Connell followed the defendant and became the aggressor and fired the first shot, then appellant had the right to resist, even to taking the life of Connell, clearly and unequivocally, under the law, both statutory and the decisions. Mr. Connell had no right to shoot at him until appellant had resisted in such manner as to justify Connell in shooting. Another phase of it is this, *Page 400 that although he may have had the authority and right, legally speaking, to have arrested appellant without a warrant, yet the law is plain and unequivocal in this State that where the right of arrest exists in the officer and he undertakes to do it in an illegal, harsh or arbitrary manner not justified or warranted by law, he becomes the aggressor and not the person he is undertaking to arrest. An officer has no right to arrest in an unwarranted, illegal or harsh manner. Another proposition in this connection is, so far as I recall the record, Mr. Connell never even made a demand on appellant to surrender, and from either the defendant's or State's standpoint, he had no right to shoot until he had made that demand and the appellant had forcibly resisted. Of course, the other man may have been the aggressor and fired before Connell had time to make that demand of the appellant, but the State's side of it was given fully to the jury. I am only speaking now in this connection of legal rights under those circumstances that should have been stated to the jury in the charge of the court as a basis for their finding as well as under the facts. I do not deem it necessary to follow this matter or cite authorities. These questions are settled by the decisions in the history not only of Texas jurisprudence but, so far as I am aware, wherever our Anglo-Saxon jurisprudence and our constitutional provisions and statutory requirements are in existence.
There are some other matters but I do not care to follow this matter. Briefly stated, I file these as some of my reasons for not agreeing with the affirmance of the judgment.