The Annotations are prepared by the following Editors and Assistants: Hon. George M. Dallas, Editor. Assistants: Ardemus Stewart Department of CONSTITUTIONAL LAW. Prof. Christopher G. Tiedeman, Editor. Assistants: Wm. Draper Department of MUNICIPAL CORPORATIONS. Hon. John F. Dillon, LL. D., Editor. streth. Department of Equity. Assistant: Mayne R. Long Richard C. McMurtrie, LL. D., Editor. Assistants: Sydney G. Department of Torts. Melville M. Bigelow, Esq., Editor. Assistants: Benjamin H. Lowry, Alex. Durbin Lauer, Patrick C. B. O'Donovan. DEPARTMENT OF CORPORATIONS. Angelo T. Freedley, Esq., Editor. Assistants: Lewis Lawrence Department of CARRIERS AND TRANSPORTATION COMPANIES. Charles F. Beach, Jr., Esq., Editor. Assistants: Lawrence Godkin, Owen Wister, Victor Leovy, Cyrus E. Woods. Department of ADMIRALTY. Morton P. Henry, Esq., Editor. Assistant: Horace L. Cheyney. Department of COMMERCIAL LAW. Frank P. Prichard, Esq., Editor. Assistants: H. Gordon Mc- Department of INSURANCE. George Richards, Esq., Editor. Assistants: George Wharton Department of CRIMINAL LAW AND CRIMINAL PRACTICE. Department of PATENT LAW. George Harding, Esq., Editor. Assistant: Hector T. Fenton. Department of PROPERTY. Hon. Clement B. Penrose, Editor. Assistants: Alfred Roland Department of MEDICAL JURISPRUDENCE. Hon. Marshall D. Ewell, LL. D., Editor. Assistants: Thomas Department of WILLS, EXECUTORS AND ADMINISTRATORS. H. La Barre Jayne, Esq., Editor. Assistants: George S. Patterson, DEPARTMENT OF CRIMINAL LAW. EDITOR-IN-CHIEF, PROF. GEORGE S. GRAHAM, Assisted by E. CLINTON RHOADS, MIERS v. STATE.' C. PERCY WILLCOX. COURT OF CRIMINAL APPEALS OF TEXAS. A person illegally arrested, even though he has acquiesced in the arrest, may use such force as is necessary to regain his liberty, and if there is reasonable ground to believe that the officer intends to shoot to prevent his escape, may shoot the officer in self-defense. WHEN THE KILLING OF AN OFFICER WHO IS MAKING AN ILLEGAL ARREST IS JUSTIFIABLE. The general principle is that where the deceased had the authority to make the arrest and was resisted and killed while in the proper exercise of such authority, the killing will be murder, but where the arrest was illegal, and the killing was done in the passion caused by such illegal taking into custody, the offence is reduced to manslaughter: Foster, 270, Hale's P. C. 465, and Rafferty v. People, 69 Ill. 115 (1873). Where the process was regular the defendant should have submitted, and the law will not excuse him for taking life, but where an officer attempts to put an illegal restraint upon the defendant, even if "attempted in a manner free from violence or the exercise of harsh measures in effecting it," the law considers such circumstance, though it fall short of a justification, as establishing such a provocation as may, on account of the excitement occasioned thereby, so far excuse the act as to reduce the crime to manslaughter: R. v. Patience, 7 C. & P. 775 (1837); R. v. Chapman, 12 Cox C. C. 4 (1871), and Briggs v. Com., 82 Va. 554 (1886). 1 Reported in 29 S. W. Rep. 1074. In this class of cases it will be seen, by reading the authorities, that the person arrested or attempted to be arrested, made use of more force than was necessary to obtain his liberty and that the killing of the officer was not at all requisite to the attainment of the object desired. In the principal case, however, the deceased, who was a constable, was killed by the defendant while the latter was attempting to escape from an illegal arrest and at a time when he believed that he would be shot by the deceased, who was pointing a loaded gun at him, if he did not fire first. The decision seems to be in consonance with the authorities, which are not numerous, and with sound reason. The deceased had made an arrest which he had not the least authority to do and, having taken the prisoner into custody, was endeavoring to prevent the latter from exercising that right of liberty which is inherent in all men and which cannot be abridged except by due process of law. This attempt of the officer was backed up by a deadly weapon and was resisted in a like manner with the result as noted above. In other words, the defendant merely presented "force to force." The judge of the court below in his charge to the jury had said, "But if a person submit to arrest and acquiesces in the "authority of the officer to make the arrest, he waives every “objection or right he may have made to any irregularity or "illegality in the same on the arrest; and if thereafter he "breaks away from the officer he acts unlawfully and, in a "conflict between him and the officer consequent thereon, he, “in law, would be the aggressor." This charge was held by the Court of Appeals to be not only "Not law, but an outrage upon law. A citizen is illegally "arrested without resistance. He attempts to regain his "liberty by flight. He is the aggressor if he should shoot "the trespasser to save his own life-shoot and kill, the very man who was and had been in the very act of killing him, "because he was attempting to release himself from the, in "law, real aggressor." Continuing the court said that "Being wrongfully and "illegally deprived of his liberty, appellant had the same right "to regain it, and right to use the same means, force or "resistance, as he had in preventing an illegal arrest. Being "falsely imprisoned he had the right to his liberty, and, for the "purpose of obtaining it, could use all force necessary for that "purpose, taking care to use no more than was required. "What degree of violence is necessary always depends upon "that used or attempted by his adversary. To illustrate: "A. is illegally arrested, and attempts to regain his liberty. "His adversary proposes to prevent this by the use of deadly "weapons. A. may resort to such weapons. A. flees from "such arrest. The officer presents in a shooting position, his “gun, demanding him to halt. A. can shoot if it reasonably "appears to him that the officer will shoot." This is in accordance with the law as laid down by the court in Alford v. State, 8 Tex. Ap. 566 (1880), where it was said that the right of resistance is not limited to the actual caption, but continues to the cessation of the unlawful detention, and the party detained or some other person in his behalf can, under such circumstances, use all the force adequate to resist the aggression and effect the liberation, even to the extent of taking life, if that be essential; and a homicide perpetrated for that purpose alone cannot be regarded as culpable." In Wharton on Homicide, § 227, it is said, that if A. unlawfully attempts to arrest B., the latter is justified in resisting, and if he is so pressed by A. as to make it necessary to choose between submission and killing A., then the killing is not even manslaughter. So, if A.'s assault has mixed in it a felonious intent, then B., if necessary to avert the danger, may take A.'s life. And in Creighton v. Com., 83 Ky. 142 (1885), and State v. Underwood, 75 Mo. 230 (1881), we find it stated that a person who is being illegally arrested has a right to take the life of the person so attempting, if it is necessary to save his own life or his person from great bodily harm. In other words, if the arrest be without lawful authority and the resistance is only such as is provoked by, and in due proportion to the assault, and the killing is not malicious, it would not be criminal: State v. Noles, 26 Ala. 31 (1855); State v. Oliver, 2 Houston, 604 (1863), and State v. Scheele, 57 Conn. 307 (1889). We will now review a few of the authorities which seem to support the decision in the principal case. In Ross v. State, 10 Tex. Ap. 455 (1881), the deceased, who was a town marshal, endeavored illegally to take a gun from the defendant under the pretense that it was contrary to law to carry one, and, when prevented from doing so, fired a shot. Defendant then shot at deccased and killed him. HART, J., in delivering the opinion of the court, said, "The 'citizen has the right to maintain his liberty at all hazards, "against any and all persons who attempt to invade it unlaw"fully, taking care not rashly to use or resort to greater "violence than is necessary to its protection. Again, being "in the right, he is permitted to anticipate the aggressor and "prepare himself by drawing a weapon, or making any other "preparations, and if his life is imperiled or he is in danger of "serious bodily harm, to use every means in the defence of "his person or liberty. He is not required to permit his “assailant to take the lead, and thereby give him the advan"tage, but, if the surroundings indicate a resort to a serious or "deadly conflict on the part of the adversary, he can prepare 'to meet it, and if the adversary makes demonstration upon "his life or liberty, or shows an intent to inflict serious bodily “harm upon him, he can kill him and be held blameless by 'the law of the land." In Jones v. State, 26 Tex. Ap. 1 (1888), the deceased, who was a deputy sheriff of Llano county, went into San Saba county to serve a warrant on the defendant. Defendant was in bed, and deceased called to him and said he had a paper for him. Defendant came down stairs in a few minutes and deceased said, "shall I read the paper, or shall you read it." Defendant said he would read it. Upon reading it he said to deceased that he would not go with him, when deceased said "You won't?" and threw up his pistol and fired. Defendant immediately fired at deceased and killed him. The shots were almost simultaneous. Held, that the sheriff had no right to serve a warrant out |