78 S.W.2d 631 | Tex. Crim. App. | 1935
It was charged against appellant by complaint and information that he resisted Robert Natho, a constable, in arresting or attempting to arrest Fred Monse without a warrant, it being alleged that Fred Monse had been guilty in the presence of the officer of the offense of disturbing the peace.
Upon the trial appellant was convicted and his punishment assessed at a fine of $25.00. Prosecution is under Art. 339, P. C.
The evidence shows that on Armistice Day in 1933 a dance was in progress at the Rifle Club in Orange Grove; that Fred Monse was present at the dance and was under the influence of intoxicating liquor. He was a World War veteran and was celebrating Armistice Day. He was talking loud, and making considerable noise. The record fails to show that any one at the dance made any complaint to the constable, in regard to the conduct of Fred Monse, but the constable sent some of his friends to Monse requesting him not to be so noisy. Fred appeared not to respond to this request. The constable then went in the house, took Fred by the arm and they walked out some thirty or forty feet in front, of the club house and were engaged
In view of the Constable’s admission that he never at any time advised Fred that he was placing him under arrest, or attempting to do so, and that he never informed appellant that he had any such intention, in connection with other testimony of the State, as hereinbefore set out, we think the State has wholly failed to make out a case against appellant.
The judgment is reversed and the cause remanded.
Reversed and remanded.