Brown v. State

• Decision Date: 16 January 1901
• Parties: BROWN v. STATE.
• Court: Texas Court of Criminal Appeals

60 S.W. 548

BROWN v. STATE.

Court of Criminal Appeals of Texas.

January 16, 1901.

Appeal from Collin county court; J. H. Faulkner, Judge.

C. E. Brown was convicted of an assault, and appeals. Reversed.

Davis & Wilcox and Garnett, Smith & Merritt, for appellant. D. E. Simmons, Acting Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of an aggravated assault, and his punishment assessed at a fine of $25, and prosecutes this appeal.

The indictment charges the assault to have been committed by appellant on one A. T. Robertson, "an officer, to wit, a deputy sheriff of Collin county, Texas, and then and there in the lawful discharge of the duties of said office, and the said C. E. Brown then and there being informed and knowing that the said A. T. Robertson was then and there an officer discharging an official duty," etc. The facts proven show that A. T. Robertson in January, 1899, received an appointment in writing as deputy sheriff from the sheriff of Collin county, Tex.; but it was not shown that the constitutional oath of office was taken by said Robertson, and it was not shown that he complied with article 4896 of the Revised Statutes, with regard to having his appointment recorded in the office of the county clerk. The evidence further tends to show that the alleged assault was committed by appellant on Robertson while said Robertson was arresting one Proffet for a breach of the peace, and while he had said Proffet and appellant in custody, having previously arrested appellant for interfering in the arrest of Proffet.

Appellant contends that subdivision 1, art. 601, Pen. Code, making an assault on an officer engaged in the discharge of his duty an offense, refers to officers de jure, and not de facto; and he objects to the testimony of the state introduced for the purpose of showing that Robertson was a de facto officer. He further objected to the charge of the court, which instructed the jury that Robertson was an officer, within the contemplation of the statute, insisting that inasmuch as the testimony did not show he was an officer de jure, but at the most only a de facto officer, this matter should be left to the jury, under appropriate instructions. We cannot agree to either of these contentions. The cases of Alford v. State, 8 Tex. App. 545, and Blair v. State, 26 Tex. App. 393, 9 S. W. 890, which are relied upon by counsel, do not determine this question in favor of appellant. In Alford's Case the character claimed by the officer was that of a deputy marshal of Ft. Worth, or bailiff of the grand jury. The court say there is no such office as deputy marshal of a city or town, and the temporary office of bailiff of the grand jury expired when the grand jury was previously discharged, so that the claim of White, the deceased in that case, as an officer, to arrest appellant, could not be sustained. He was neither a de jure nor a de facto officer. Moreover, the decision appears to be based upon the illegality of the warrant. In Blair's Case, appellant was charged with carrying a pistol, and attempted to justify as an officer. The proof shows that he formerly lived in Val Verde county; that some two years before he had an appointment from the sheriff of Val Verde county as a deputy sheriff or guard; that he was at the time of the alleged offense living in Kinney county, and had been employed seven or eight months prior to his arrest as a clerk in a mercantile establishment in the latter county. There was no claim here that he was ever an officer of Kinney county, either de jure or de facto, nor that he was in Kinney county in the discharge of any duty as deputy sheriff of Val Verde county when he was carrying the pistol. In this case the court say: "Evidently appellant was not a deputy sheriff, and could claim no authority to carry a pistol by virtue of the paper introduced in evidence." As stated, neither of the cases is authority for the contention of appellant in this case. The decisions indicate that, before one can be a de facto officer, there must be some office which he could hold de jure. However, this is not a new question in this state. In Weatherford v. State, 31 Tex. Cr. R. 530, 21 S. W. 251, which in its facts is much like the present case, the court, after discussing the authorities, expressly hold that a de facto officer was authorized to make an arrest and to summon a posse to aid him; that while so engaged such officer could not be held to act at his own peril or outside his duties because of a defective or non record of the officer's right or title to his office. And see Dane v. State (Tex. Cr. App.) 35 S. W. 661. The court, as stated above, instructed the jury that Robertson was an officer. Evi...