This is an appeal from a conviction of assault with intent to rape, the punishment being assessed at three years confinement in the penitentiary.
On the evening of the 11th day of October, 1901, the jury was completed, impaneled and sworn. Subsequent to the impanelment of the jury J.B. Brockman, appellant's only attorney, and who alone was familiar with the facts of the case, and who had prepared himself for the trial, was arrested on a warrant from the justice court, charging him with having advised one Sid Preacher that should the police force of Houston attempt to arrest him unlawfully that he (Preacher) would have the right to resist such unlawful arrest with such force as might *Page 612 be necessary to prevent the unlawful arrest; even to the extent of taking life, should that degree of force be necessary to prevent the unlawful arrest. The killing of the policeman by Preacher occurred on the evening of the 11th, after the impanelment of the jury, and Brockman's (appellant's) attorney was placed in jail. On the morning of the 12th no counsel appearing for defendant, W.F. Tarver, an attorney of the Houston bar, was appointed to proceed with the case. He strenuously objected, and asked that Brockman be brought into court and allowed to proceed with the trial, because he alone was familiar with the case, was the regularly employed attorney, and no reason existed why said Brockman should not be permitted to proceed with the trial; and further that there was no legal ground for his detention. Brockman was kept in jail until the end of the trial, and the cause proceeded with the appointed counsel, Tarver, representing appellant. About the termination of the trial, or just afterwards, Brockman was released from custody. Effort was made to have appellant's case postponed until the charge against Brockman could be disposed of, to the end that Brockman might appear as appellant's counsel. These matters were refused by the court, and Brockman did not appear for defendant. The case should either have been withdrawn from the jury and continued, or the trial postponed until Brockman's case could have been disposed of by the trial court, to the end that he might appear in appellant's behalf. Viewed in the light of the record, under the subsequent action of the court in regard to Brockman, he had been guilty of no violation of the law; and under the circumstances these matters should have been disposed of, and if there was no case against Brockman, as subsequently shown, he should have been discharged, so that he might defend his client, and his client was entitled to the defense of his attorney. Or, if the facts developed were sufficient to hold Brockman under bail, he should have been granted bail; and to this end the trial of the case should have been postponed. Brockman was not under indictment, nor under conviction; and we gather from the facts stated, that he was arrested as an accomplice to Preacher, who had engaged in a difficulty with a policeman, for having given the legal advice stated above. This necessitates a reversal. The judgment is accordingly reversed and the cause remanded.
Reversed and remanded.