Nickerson v. State

• Decision Date: 26 February 1913
• Parties: NICKERSON v. STATE.
• Court: Texas Court of Criminal Appeals

154 S.W. 992

NICKERSON v. STATE.

Court of Criminal Appeals of Texas.

February 26, 1913.

Rehearing Denied March 26, 1913.

Appeal from Grayson County Court; J. Q. Adamson, Judge.

Ed Nickerson was convicted of aggravated assault, and appeals. Affirmed.

B. L. Jones, Hamp P. Abney, and J. W. Hassell, all of Sherman, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was convicted in the county court of an aggravated assault, and prosecutes this appeal.

The facts would show that Nannie Nickerson called Deputy Sheriff Hamilton over the telephone and reported to him that appellant was causing trouble, and requested his arrest. The officer went to their home, found appellant in bed, and arrested him. Appellant got up, put on his clothes, and asked the officer what he was going to do with him, when the officer told him he was going to take him to jail for the row he had with his wife. Appellant went with the officer a short distance, and then the officer says appellant straightened up and remarked, "All the officers in this town are God damn sons of bitches," when the officer struck him; appellant grabbed the officer, threw him down, and, the officer says, "struck him several times about the head, badly cut his lip, skinned and bruised up his head, and badly bruised and beat his face." Another officer came up, when appellant and Officer Hamilton were parted.

It is unquestioned that the officer had no warrant when he made the arrest, and the offense against appellant's wife was not committed in his presence nor in his view. The information contained two grounds alleging aggravated assault: One that appellant committed an aggravated assault in and upon an officer in the lawful discharge of his duties. If this was the only ground alleged, the conviction could not be sustained, because the evidence shows that the officer had no warrant, and the offense for which appellant was arrested was not committed in the presence of the officer. Williams v. State, 142 S. W. 899. But the complaint also charges that "appellant did then and there unlawfully strike, wound, and bruise the said W. T. Hamilton, and did thereby inflict upon the said Hamilton serious bodily injury against the peace and dignity of the state."

It is unquestionably the law of this state, as contended by appellant, that a person illegally or unlawfully arrested has a right to use all necessary force to effect his release, when the force is used for that purpose; but one, even though illegally arrested, would not have the right to maliciously assault an officer any more than any other citizen. Does the evidence in this case suggest that the assault was made by appellant to effect his release from an unlawful arrest? Appellant did not testify nor offer any evidence. The only testimony in the record is that of Officers Hamilton and Stark, and their testimony does not even remotely suggest that appellant was actuated by that motive in making the assault on Hamilton. The officer says when he arrested appellant he offered no protest or objection, but went quietly with him a short distance, and then, without provocation, uttered the abusive epithet, when Hamilton struck him. The officer should not have struck his prisoner, and it may be that he is guilty of an offense for so doing; but he is not on trial in this case.

However, as appellant used language that...