Skidmore v. State

• Decision Date: 01 January 1875
• Citation: 43 Tex. 93
• Parties: OSCAR SKIDMORE v. THE STATE.
• Court: Texas Supreme Court

43 Tex. 93

OSCAR SKIDMORE

v.THE STATE.

Supreme Court of Texas.

1875.

APPEAL from Collin. Tried below before the Hon. Silas Hare.

Craig & Garnett, for appellant.

A. J. Peeler, Assistant Attorney General, for the State.

ROBERTS, CHIEF JUSTICE.

The indictment charges the defendant with having committed an aggravated assault and battery upon one McCautz, by striking him with a pistol and inflicting upon him a serious injury.

The evidence showed that McCautz was drinking, and at Turbitt's grocery, in the city of McKinney, and wishing to go out at the rear door, he asked Skidmore, the defendant, who was there playing billiards, (being a deputy marshal and policeman,) to open the door. Skidmore told him to open it himself, and went out of the front door; after which McCautz cursed him, for which Turbitt ordered him out of his house, and while in the act of forcibly putting him out McCautz attempted to strike him, about which time Skidmore, coming along the street, stepped in the house and told McCautz to go along with him, that he, defendant, would arrest him. McCautz refusing to go, was dragged out into the street by Skidmore and Turbitt, and being carried on some distance towards the calaboose by Skidmore, stopped and said he wanted to go to see some one to stand on his bond, or to get money to keep him out of the calaboose, refusing to go any further. Thereupon Skidmore put his hand behind him, pulled out his pistol, a six or a five-shooter, and struck McCautz on the head with it, cutting a gash an inch long, drawing blood, when McCautz went on with him, was put in the calaboose, and was afterwards fined, for what offense does not appear. When Skidmore struck him with a pistol there were two men within the distance of eighty-four feet from him, upon whom he could have called for assistance to carry the drunken man to prison.

The code provides that in making an arrest no greater force shall be resorted to than is necessary to secure the arrest and detention of the accused. (Paschal's Dig., art. 2697.) An officer on board of a man-of-war, in a storm or in a battle, may be justified in enforcing his orders by striking a sailor with a pistol, when necessary to make him go, if he stops and refuses to go in the discharge of his duty.

The laws of Texas do not fix the relations as to the right of command and the duty of obedience to orders of a deputy marshal of a quiet country town in time of peace, and a drunken prisoner in his custody, upon the same footing with an officer in the navy and a sailor under him, in a storm or in a battle. The officer, if he had a right to arrest and carry him to the calaboose, may have the right to use him roughly, if necessary, in the act of carrying him along, and he had a right to get assistance in doing so, if he needed it; but that does not embrace the right to punish him, to assault and beat him with a pistol to make him or to induce him to go when he stopped. There is a very broad distinction between the two means of getting the prisoner to the calaboose.

This is the distinction sought to be drawn by the court in the charge, which says that “an officer who has charge of a prisoner may, as stated, use all reasonable means to secure his detention, but...