Vera, Jr. v. State , 111 Tex. Crim. 85 ( 1928 )

Offense, aggravated assault; punishment, a fine of $50.00.

A disturbance occurred at a Mexican dance attended by appellant and his brother, Jose P. Vera, the latter being at the time a justice of the peace. Appellant was commissioned by his brother to keep the peace and arrested prosecuting witness, Briomes. Briomes testified:

"He placed me under arrest and hit me over the eye. I was standing when he arrested me and he hit me with a pistol."

Witness Rivera testified:

"Briomes was standing doing nothing when the defendant hit him with the pistol. I do not know why defendant hit Briomes."

Appellant's testimony showed he hit prosecuting witness in self-defense.

It is vigorously contended that since the record shows that appellant was either an officer de facto or de jure that the evidence is insufficient and he should have been acquitted. Appellant's proposition must rest necessarily in its last analysis, upon the hypothesis that an officer has a legal right to assault a prisoner in his charge. This because the quoted testimony above shows an unprovoked assault by appellant, disputed of course by appellant, but the Court heard this issue and decided it with the State, thus concluding this fact question before this Court and leaving only, as we view it, the bare question above stated. That a commission to a peace officer is not a license to commit an assault is not open to controversy. If there was ever any question about so plain a proposition, it is foreclosed by the terms of Art. 241, C. C. P., which provides:

"In making an arrest, all reasonable means are permitted to be used to effect it. No greater force, however, shall be resorted to than is necessary to secure the arrest and detention of accused."

Many cases are cited in Vernon's C. C. P. (1925) under Art. 241 in support of the announcement that an officer "can use violence only in his necessary self-defense."

It is further contended that the County Judge trying this case had a direct personal and pecuniary interest in same and that his judgment was therefore void. The reason given is that the judge is entitled to a fee of $5.00. The exact point has been decided against appellant's contention in the recent case of Richardson v. State, 4 S.W.2d 79. Appellant relies upon the Tumey case by the United States Supreme Court. That case is clearly distinguishable from the instant case. This is made plain in a more recent opinion by the Supreme Court of the United States in which under facts very similar to the instant case it held the trial judge was not disqualified. See Dugan v. Ohio, U.S. Supreme Court Advance Opinions, June 1, 1928. We endeavored to point out in the Richardson case, supra, the distinction between the disqualifying facts which existed in the Tumey case and those pertaining to the disqualification of a county judge in Texas. We regard the reasoning of the United States Supreme Court in the Dugan case, supra, recently decided, as fully sustaining the conclusion we reached in the Richardson case. The Austin Court of Civil Appeals in the case of Joseph v. Travis County, 8 S.W.2d 741, has recently quoted with approval the Richardson case, supra, and in that case expressly decided that a county judge had no disqualifying interest such as is claimed by appellant in this case.

Finding no errors in the record, the judgment is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.