41 Tex. 46 | Tex. | 1874
It appears from the recitals in the judgment rendered in this cause that the court treated the indictment as charging two separate and distinct offenses: one an aggravated assault, and the other for resisting an officer in the lawful discharge of the duties of his office. So regarding it, the District Attorney was put upon his election as to which one of the charges he would prosecute. Having declined to prosecute for the aggravated assault, he decided to prosecute for resisting the officer; and thereupon the court quashed the indictment on the grounds stated in defendant’s motion, and ordered that he should be discharged from custody; to which the District Attorney excepted, and gave notice of appeal.
The motion to quash contained the ground upon which the court acted in holding the indictment insufficient, and the further ground that the indictment did not show that the defendant was attempting to execute a lawful warrant of arrest.
From an inspection of the indictment it will be seen that it was not framed in reference to a first and second count alleging distinct offenses, as seems to have been supposed, and upon which the court based its ruling in sustaining the motion. The indictment, as we think, does not charge separate offenses, and the District Attorney should not have been required to make an election upon the supposition that it did.
The offense charged is an aggravated assault, and the allegations that the defendant resisted, hindered, and obstructed the officer, Bridges, in the discharge of his duties, may be regarded as surplusage.
The Criminal Code (art. 2150) makes an assault or battery aggravated “when committed upon an officer in the
The allegations of the indictment meet this requirement. It avers an assault on Bridges, a peace officer, he being constable for the corporation of the town of Sulphur Springs, in Hopkins county, and that he was in the lawful discharge of the duties of his'office, and that his character as such was known by defendant.
The chapter “ relating to the arrest and custody of prisoners” defines an “ officer” in the meaning of that chapter to be “ a sheriff, deputy sheriff, constable of a beat, marshal or constable of a city or town, or any person specially authorized by warrant to arrest.” (Art. 1964.) And under the chapter entitled “ Of arrest without warrant” it is provided: “ A peace officer, or any other person, may, without warrant, arrest an offender 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.” (Art. 2677.)
The indictment does not charge the defendant with resisting process, but he is charged with making an assault on Bridges as a peace officer in discharging the duties of his office.
The indictment follows the statute; and if we look to the form, (if forms were required,) it follows Wharton’s Precedents of Indictments, and there was error in sustaining the defendant’s motion to quash; for which the judgment is
Revebsed and cause bemanded.