Kelley v. State , 80 Tex. Crim. 257 ( 1916 )

I disagreed with my brethren on the affirmance. They held the charge was sufficient, and the case correctly tried. The evidence demonstrates that appellant after midnight in the "wee small hours of the morning" was at his hotel in his room retired for the night; that he was aroused by someone at his door. He asked if that was his friend and companion calling his name. He was informed that the caller was the friend mentioned. He opened the door to admit him and was confronted by three strangers in citizens' or "plain clothes," who testified on the trial they were officers in "plain clothes." They were entire strangers to him. They had no warrant for the arrest of appellant. They went to his room at that late hour of the night on information they had received of his whereabouts. It seems that some time early the same night appellant and his friend had committed robbery in Oak Cliff, and officers were seeking his arrest. One of the "plain clothes" officers undertook to enter; they were armed and the shooting began. One of the officers was wounded. I can not agree with my brethren that appellant knew that these parties were officers and he was trying to make his escape. They had no warrant for his arrest and misled him by making the statement that the speaker was his friend. This was not true and admitted by the witnesses in testifying to be untrue. They were all strangers to appellant. They knocked at his door long after midnight, with nothing to indicate to him their official rank or why they were there. They did not notify him at any time of their official rank or their purpose, but misled him by the speaker telling him that he was his looked for friend. The majority seem to place this upon the theory that the officers were authorized to pursue and arrest appellant without a warrant or to notify him of the fact that they were officers at his room at that time of the night. This is not the law in Texas. There is nothing to indicate that he was escaping or trying to escape. He was in bed locked in his room for the night with no purpose indicated in this record of getting out of that room or bed. He had left the place of the alleged robbery in Oak Cliff and had come to Dallas, and retired for the night. This was not indicative of flight or seeking to escape. If appellant knew they were officers we might have a different proposition, but there is nothing to indicate that he so knew. In fact, the evidence demonstrates the contrary. Not only so, but until he opened the door he believed otherwise. There was nothing to indicate to him the purpose of the visit of three men and they did not disclose their purpose. So far as he is concerned they may have come to him as robbers or people intending to do him violence, and he could readily have so believed. The last and most remote conjecture that would come to his mind was that they were officers. They had ample opportunity to so inform him but not only did not but misled him by stating what was not true. It is but a natural conclusion, first, that the spokesman was his friend; second, that he was intentionally misled; third, that he was not hailed by officers as such; fourth, that strangers coming to his room at an unseemly late hour were bent on purposes unknown but suspicious to appellant; fifth, those strangers had as much time to inform appellant why they were there and their mission and who they were as they did to mislead and falsify as to who they were and why they were there; sixth, it is evident he was misled and did not know who they were, but believed the speaker to be his friend; seventh, these officers could have as readily and easily told him the truth as to who they were and their mission as they did to mislead him; it would have taken no more time and brought less trouble; eighth, the statute requires officers to notify appellant of their presence and official character and purpose; ninth, the law did not and does not authorize officers to misinform and mislead, but it does require them to give notice of their reasons for calling at night under such circumstances as indicated in this record. That there may be no mistake about it I quote article 289, Vernon's Criminal Procedure, page 843: "In case of felony, the officer may break down the door of any house for the purpose of effecting an arrest, if he be refused admittance, after giving notice of his authority and purpose." Apropos of this, they did not notify appellant of their mission for arrest; he did not refuse them admittance, thinking they were his friends; nor did the officers give notice of their authority or purpose; but, on the contrary, told him they were somebody else. Article 290 may also be cited here: "In executing a warrant of arrest, it shall always be made known to the person accused under what authority the arrest is made; and, if requested, the warrant shall be exhibited to him." There was no warrant in the hands of the officers in this instance, and, of course, none exhibited, and not only that but appellant was not aware of the fact they were officers, because they misled him as to their identity and purpose. While the court charged in a general way that if appellant knew they were officers, he had no right to resist. The State's contention was, after the shooting was over he ran to a window to get out and get away and that he discovered some officers on the outside dressed in official clothes, and dating back from that discovery they charged him with notice of the fact he knew who the three men at the door were. This is rather a violent presumption against the facts and against the law and against the innocence of the accused. The accused is to be tried from his standpoint of view. There was nothing to indicate the officers could not obtain a warrant before his escape, because the man was in bed, and was not trying to escape; but the court charged that if the defendant was not aware, or if there was a reasonable doubt of the fact that he was not aware they were officers, he would not be guilty of resisting arrest. This was a direct thrust at his right of defending himself from his bedroom at night against unknown trespassers or men he believed to be trespassers, and in charging the law it must be favorably given to defendant as he viewed it. If appellant was not aware that these officers come to arrest him, or there was a doubt about it, he had the right to resist. These officers could have informed him of their mission but did not. They had ample time to do so, and this is demonstrated by the fact that they called twice to appellant before he answered, and when he did answer they misled him as to who they were, and obtained entrance to his door under the theory that he was admitting his friend and associate. It would hardly justify discussion to arrive at the conclusion that the officers had as much time to notify him they were officers and wanted to arrest him, and, therefore, ask admittance, as they did to mislead him as to who they were. I do not care to pursue this matter further.

There are other matters in the record, but I do not understand how this defendant has had a fair trial under this record and under the statutory laws of this State. I can not, therefore, agree to the affirmance. I do not believe the decision correct. I respectfully enter my dissent.