Crow v. State , 152 Tex. Crim. 586 ( 1948 )

The state presents a motion for a rehearing in which it claims that we erred in holding that the evidence was insufficient to sustain appellant's conviction for the offense of an aggravated assault upon the Sheriff of Coleman County while in the discharge of his official duties.

The pertinent facts, as disclosed by the record, are sufficiently set forth in the original opinion as a basis for the disposition of the questions presented in the motion for a rehearing. The state contends that the testimony of the County Treasurer to the effect, "that the Sheriff asked appellant to leave town, then go home. Appellant replied that he hadn't caused any disturbance and he wasn't ready to go, or something to that effect. Thereupon, the Sheriff said, if you don't go home, I will take you to jail and started to his car with him." There is not any evidence from any source that appellant was disturbing the peace which would authorize his arrest by the Sheriff without a warrant although he may have been intoxicated.

Art. 212, C. C. P., authorizes the arrest of a person without a warrant when the offense is committed in his presence or within his view, if the offense is one classed as a felony or as an offense against the public peace. The sheriff's and constable's authority to arrest without a warrant is prescribed and limited by the foregoing article. See Bennett v. State, 136 Tex. Cr. R. Rep. 192 (124 S.W.2d 359); Heath v. Boyd, 141 Tex. 569 (175 S.W.2d 214); and Pratt v. Brown, 80 Tex. 608 (16 S.W. 443), where the subject is fully discussed.

Moreover, there is not any evidence from any source that it was known or made known to appellant that the person he is charged with having assaulted was an officer in the discharge of an official duty.

From what we have said, it follows that the state's motion for a rehearing should be overruled, and it is so ordered.

Opinion approved by the Court.