George Lacy v. The State, 7 Tex. Ct. App. 403

Winkler, J.

It is shown by bill of exceptions that the defendant placed on the stand and had sworn a witness by whom he proposed to prove that the witness had had a sorrel horse stolen from his possession and from his residence, in Bell County, on the twenty-ninth day of March, 1877, and that after the first day of April, 1877, the day on which the deceased was killed by the defendant, he, the witness, heard of his horse as having been in the possession of the deceased when he was killed; that the witness came to Bosque County, found his horse, proved his property in the animal, and took it home; and that the defendant would by other evidence connect the deceased with the theft of the animal; which proof the defendant was not permitted to make, the testimony being ruled out by the court on objection by the State, and the ruling saved by bill of exceptions.

The view of the judge in making the ruling .is expressed in the eighth paragraph of the general charge to the jury, and which is complained of as being erroneous and upon the weight of the evidence.

The paragraph is as follows:— “ You are instructed that any person who has committed a felony (and the theft of a horse is a felony) may be arrested by any citizen under the following circumstances, and no other: Where a felony is committed in the presence of a citizen, or within his view, such citizen may arrest the offender without a warrant of arrest, and he may adopt all the means necessary to effect such arrest which the law authorizes to be adopted by a sheriff or other peace-officer.

But no citizen is authorized by law to arrest a person on suspicion,—that is, on the bare belief that an offence has been committed; and if a citizen attempt the arrest of a person on mere suspicion, without a warrant of arrest, such citizen does so on his own responsibility, and in law is bound by the consequences of his unlawful act.” The ninth paragraph of the charge inculcates the same idea of the law of the defence, and instructs the jury as to the legal consequences which follow a homicide committed in an attempt at an illegal arrest.

It is not necessary that we go to the common law or to the decisions of the courts of other States in order to ascertain the circumstances under which a private person or an officer of the law may arrest for crime without warrant, for the reason that in this State the whole subject is regulated by the Constitution and the statute law.

By art. 209 .of the old Code of Criminal Procedure, and art. 226, Revised Code of Criminal Procedure, it is provided that a peace-officer or any other person may without warrant arrest any offender when the offence is committed in his presence, or within his view, if the offence is one classed as a felony, or as an “offence against the public peace.” This article, and others relating to the subject of arrests, must be construed in harmony with and in subordination to the Bill of Rights, the ninth

section of which declares as follows: “The people shall be secure in their .persons, houses, papers, and possessions, from all unreasonable seizures or searches, and no warrant to search any place or seize any person or thing shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.” Besides art. 226, articles from 227 to 231, inclusive, are on the same subject of arrest without warrant.

From the whole tenor of these articles of the Code, it is to our minds apparent that the whole authority given to arrest without warrant is founded in the law of necessity, —- a necessity for prompt action in order to arrest or detain the offender, so as to prevent his escape by delaying the time necessary to procure a warrant for his arrest. The whole question here presented depends upon the proper construction and application of art. 226, copied above, and of that portion of the

article which-is in these words, “ When the offence is committed in his presence, or within his view,” as applicable to the present inquiry. It is argued with force and ability, but without authorities to support the argument, that horse-stealing is a continuing offence and a felony, and that any citizen who might see a person passing through the country and having an animal of the horse kind in possession, under such circumstances as to awaken suspicion that the animal was stolen, that then it would be within the spirit and meaning of the law which authorizes an arrest without warrant.

It is true that when property is stolen in one county and carried off by the offender to another, he may be prosecuted either in the county where he took the property, or in any other county through or into which he may have carried the same (Code Cr. Proc., art. 218); but this provision is not that a new offence has been committed, but that the offender may be prosecuted either in the county where he took the property, or through or into which he may have carried it.

Hence our construction of art. 226 is, that, to entitle either a peacp-officer or any other person to arrest without warrant, two things must concur: first, that the person sought to be arrested has committed an offence classed as a felony, or as an offence against the public peace; and, secondly, that the offence must have been committed in his presence, or within his view; and as to one passing through the country under suspicious circumstances, or even if common rumor had been circulated that a felony had been committed, any person, be he peace-officer or private citizen, who should attempt his arrest without warrant, would be liable to all the consequences resulting from an illegal arrest.

In the case before us there is no pretence that the defendant, or any other person acting with him, was clothed with a warrant for the arrest of the deceased. We are therefore of opinion that the court, in the paragraph of the charge copied above, gave to the jury a charge applicable to the facts proved, and substantially correct in law, and that the testimony excluded was irrelevant and inadmissible under the law, as the testimony developed the defence. We find no error in the charge to the prejudice of the defendant.

The various instructions given to the jury, though perhaps more voluminous than necessary to give the jury the law arising upon the facts proved, are believed to be sufficiently expressed to submit to the jury the material points of inquiry. We cannot say that there was not a sufficient amount of legal testimony to warrant the jury in their finding, either as to the guilt of the defendant or the identity of the person killed with the person named in the indictment.

The sufficiency of the verdict is called in question, and a photographic copy is attached to the transcript; but this is not identified as any part of the -record, so as to entitle it to consideration. There is no objection to the form of the verdict as recorded, on the minutes of the court. Verdicts are not subject to strict rules- of

interpretation ; so they are intelligible, the law is satisfied. After a careful examination of the whole case as made by the record, in the light of able oral argument and brief by counsel for the appellant, we find no such error as required the granting of a. new trial in the court below, or as would warrant a reversal of the judgment; and.it is affirmed. Affirmed.