Appellant contends the court was in error in affirming the judgment at the recent Tyler Term, and that the judgment should be reversed. A sufficient statement of the case is found in the original opinion.
Appellant contends that he had the right to arrest and deliver to the sheriff the alleged injured party, because he (appellant) was surety on his bond for his appearance before the district court, and under article 318, Code Criminal Procedure, that it was not necessary for him to obtain a warrant of arrest, or to take any other steps than simply arrest his principal and deliver him to the sheriff. It is true that article 318, Code Criminal Procedure, provides that the sureties on a bail bond many surrender their principal and be released; but under subsequent articles of the Code it is provided that wherever the surety desires to surrender his principal he must make affidavit and obtain a warrant. Appellant urges, and cites some cases which he contends support his proposition, that the surety may arrest his principal for the purpose of surrendering him without warrant. An examination of those authorities in our judgment do not sustain the contention. It may be conceded that if the surety could induce the principal to accompany him for the purpose of being surrendered that a warrant is not necessary; but this does not authorize the surety to forcibly arrest and take the principal and surrender him, unless he is armed with proper legal authority. As we understand the record, it may be here stated that there was no attempt on the part of appellant to arrest his principal. He assigns more than one reason for having the pistol; one that he desired to arrest his principal and surrender him; and another that he was informed his principal had stolen cotton from him (appellant) and he also wanted *Page 472 to arrest him for that reason. However, the facts show that as he approached his principal (who was riding ahead of him in a wagon) he jumped out and began going away, when appellant drew his pistol and fired in the air. There was no demand for surrender. This seems to be about all that was done, except that his principal fired at him and fled. This ended the transaction. We are of opinion that where the surety proposes to surrender his principal he can do so, if the principal will accompany him to the sheriff willingly. If not, he must make the affidavit and secure the warrant of arrest. This seems to be our statutory provision.
We are further of opinion that the evidence does not show that he was undertaking to arrest Johnson. The only evidence that he intended to arrest the principal was not communicated to him, but was developed on the trial of the case for carrying the pistol, when appellant testified that such was his reason for having the pistol. We do not believe this evidence shows any legal reason why appellant was armed.
A statement in the opinion in regard to the evidence is criticised, wherein it was said that appellant was en route to town when he overtook his principal and exhibited and fired his pistol. The statement of appellant himself is authority for that language in the opinion. He stated he desired to arrest his principal "and carry him on to town" with him. We think the criticism of that part of the opinion is hypercritical. If he was "going on to town," as stated, he certainly was en route to town. We believe the court's charge presented every issue in the case fully and favorably to appellant in every aspect. The motion for rehearing is overruled.
Overruled.
Henderson, Judge, absent.