In a well-prepared motion for a rehearing, appellant insists that we erred in the original disposition of this case in holding that Dick Self, the injured party, was an invitee and, therefore, not a trespasser.
The State's evidence is to the effect that the injured party was called by Mrs. Vera Pritchett, the owner of the premises, to send someone out to quell a disturbance. This was controverted by appellant's witnesses. It will be noted that this raised an issue of fact which appellant might have been entitled to have submitted to a jury had he requested it. We observe from the court's charge that he did instruct the jury generally that if they believed that the injured party was a trespasser, as that term is defined, then appellant had a right to use such force as appeared to him to be necessary to eject Dick Self * * *. If appellant had desired a more explicit instruction on the subject, he should have requested it. This court being an appellate tribunal is not authorized to usurp the functions of the jury and decide issues of fact.
Appellant next contends that we erred in holding that a *Page 438 mayor of an incorporated town or city is a magistrate within the meaning of the law and therefore had the right to verbally order the arrest of appellant or anyone else who commits a breach of the peace within his view or presence. See Art. 33, Vernon's Ann. C. C. P. A peace officer may lawfully arrest without a warrant when a breach of the peace has been committed in his presence or view of the mayor who verbally orders the arrest of the offender. We think this is the law notwithstanding the emphatic insistence by appellant that it is not.
We know that the trial court instructed the jury relative to the elements constituting a breach of the peace and then submitted to the jury the issue of whether or not appellant was guilty of a breach of the peace at the time and place in question. The jury decided this issue adversely to appellant and having so decided it, it follows that the verbal order of the mayor directing the night watchman to arrest appellant was justified under the law.
Appellant next complains because we did not discuss his Bill of Exception No. 22 wherein he complains of the action of the trial court in declining to submit his special requested charge to the effect that an officer must make known his identity as an officer to the person about to be arrested by him regardless of whether or not the person sought to be arrested knew his identity as an officer. We think such an instruction would have required the officer, who was known to the person about to be arrested, to perform a useless act. The law does not require the doing of a useless act. In the instant case, appellant knew Dick Self to be the Mayor of the City of Honey Grove. We note from the court's charge that he did instruct the jury that an officer about to arrest a person must make it known that he is an officer, unless such fact is already known to the person sought to be arrested.
Appellant seriously complains about the acts of the mayor and night watchman in entering upon his premises at nighttime, and attempting to arrest him without a warrant. These issues were all submitted to the jury as well as his right of self-defense and his right to eject trespassers, if they were trespassers. The jury having determined these issues adversely to him, their decision precludes any review thereof by this court.
Believing that the case was properly disposed of on original submission, the motion for a rehearing is overruled.
Opinion approved by the Court. *Page 439