74 S.W. 28 | Tex. Crim. App. | 1903
Appellant was charged with resisting T.J. Tomlinson, constable of precinct No. 3 of Gonzales County, by throwing said Tomlinson to the ground and taking his pistol; that appellant and others were charged with a "misdemeanor of gaming," and were engaged in said game in the presence of said Tomlinson just prior to said resistance, "and was commanded by said Tomlinson to consider themselves under arrest."
Motion was made to quash the information for several reasons. It will be noticed on the face of the pleadings that the only violation of the law referred to or attempted to be charged was "a misdemeanor of gaming," and that said parties, including defendant, "were engaged in said game in the presence of said Tomlinson just prior to said resistance." The pleadings do not state directly and affirmatively that the officer was arresting under warrant or without warrant, the inference being that it was without warrant, but the pleading is defective in not stating the authority by which the officer undertook to make the arrest. Another ground urged is that appellant and his associates were not guilty of a violation of the law in the presence or view of the officers which authorized an arrest without warrant. We believe these propositions are well taken; that it does not sufficiently describe the offense. See Fulkerson v. State,
Further, in our judgment, the evidence would not support a conviction for resisting an officer in attempting to make an arrest. The facts tend to show that Tomlinson had stated to one of appellant's associates to consider himself under arrest, and he had acceded by saying "all right." *96 They had started from the scene of the purported arrest, and the prisoner asked why he was arrested, and the others not. That brought up a discussion between the prisoner and the officer. It seems further, that the officer undertook to search his prisoner, which culminated in resistance on his part, and in the scuffle Tomlinson was thrown to the ground, with the prisoner on top. Tomlinson immediately called for a friend of his standing some distance away to come to his assistance. He replied that he could not come, the evidence showing appellant had grabbed this friend of Tomlinson, and for this reason he could not go to Tomlinson's assistance. This is the substance of the testimony which indicates the real merits of the question as to whether or not appellant was resisting arrest. If this testimony be true, it shows that the prisoner, having trouble with Tomlinson, had already been placed under arrest, in so far as to comply with the officer's request, and had accompanied him some distance. If there was an arrest at all, under the circumstances, it had been accomplished. The arrest by Tomlinson was illegal and the prisoner had the right to resist either arrest or the illegal detention. If Tomlinson had authority to search his prisoner it is not shown by the testimony. There is no evidence indicating that the prisoner Tomlinson had in charge was trying to escape, and that appellant was aiding him either directly or indirectly to do so. The prisoner was simply trying to keep Tomlinson from searching his person. The complaint and information should have been quashed; and, in our opinion, the evidence is not sufficient to support the conviction. The judgment is reversed and the prosecution ordered dismissed.
Reversed and dismissed.
