dissenting.
A review of the evidence shows that the arresting officers acted prudently and in accordance with Article 14.04, Y.A.C.C.P., in making the arrests in question. The record reflects that the victim was abducted at 3:00 a. m. and released by his captors at approximately 2:00 p. m. that afternoon. He then related his ordeal to the police. The interview with police was concluded between 3:15 and 3:30 p. m. The police thereafter had one officer immediately place the house under surveillance until backup officers could arrive. The arrests were carried out at 4:15 or 4:20 p. m.
The victim testified:
“Q. Did any of the persons seated in the courtroom ever make any statements to you about leaving the jurisdiction of this county?
“A. Yes, sir.
“Q. And who was that?
“A. All of them did.
“Q. Okay. And when was this?
“A. It was during the night that I was held at the house.
“Q. And what did they say?
“A. They all just said that they was leaving.
Some of them said they was going back to California. And Martinez — when he took me home that day, he said that he was going to leave just as soon as he got back.
“Q. Just as soon as he got back?
“A. Just as soon as he got back and packed his stuff up, he was leaving.
“Q. Okay. Did you tell the police officer that they were planning to leave for California?
“A. Yes, sir.”
On cross-examination, he testified:
“Q. So, between the hours of 3:00 a. m. and 2:00 o’clock, when Martinez dropped you off, they — the four defendants had collectively, at one time or another during the morning, or during the day had told you they were going back to California?
“A. Yes, sir.
t< * * *
“Q. ... As best you can recall, what were the words you told them (police) about what they were going to do after they had let you off?
“A. I just said every one of them was going to move out of the house and leave, and some of them were talking about going back to California.
“Q. Did they give you any time frame of when they were going to do that?
“A. That day.
“Q. That same day?
“A. Yes, sir.
“Q. Each of them told you that?
“A. Yes, sir. They all said they was moving out that day.”
An examination of the officer’s testimony reveals the following:
“Q. At that time, did you believe that you had time to procure an arrest warrant for the persons you believed had assaulted and robbed Robert Herdman?
*472“A. No, sir.
“Q. Why was that?
“A. Because they had talked of, in front of the complainant, leaving for California immediately; and I presumed they were preparing to leave.
“Q. Did you also have information that the persons in that house were armed?
“A. Yes, sir.”
As soon as backup officers arrived, the arrests were made. On cross-examination, the arresting officer testified:
“Q. So, would that be Sergeant B. F. Fowler that you talked to?
“A. Yes, sir.
“Q. Did you discuss with him the availability of a City Magistrate on that telephone conversation?
“A. I said to him, ‘I don’t think that we have got time to try to find a Judge and get a warrant, do you?’ And he said, ‘No, I don’t.’
“Q. Was that the extent of your conversation?
“A. Just about.
“Q. Was there anything else, if you can possibly recall, about the availability of a Magistrate?
“A. We talked about briefly in just about those words that I gave you— that it was Saturday afternoon, that there’s not going to be a Judge available, and we just had to do what we had to do.
And he said, ‘That sounds fine. You’re exactly right. I will send you the man I have got here. Just do what you have to do.’
a sfc * *
“... I told him that I didn’t have time to get a warrant, that I had some dangerous people in the house, who needed to be arrested.
He concurred that there was not enough time to get a warrant, and said to go do what I had to do.
“Q. Okay. Now, what was there about—
From your viewpoint of observing that house, what was there about the situation, from your point of observation, that causes you to say that there was not enough time to secure a warrant?
“A. Because I have secured many warrants, and it takes a great deal of time in even locating a Judge on Saturday afternoon. It can take hours to get one.
I did not have hours to sit out there and wait for those people to leave. I felt they were dangerous people and that the community would best be served if I arrested them at that time, rather than try to seek a warrant. Knowing the situation and how hard it is to get a Judge on Saturday afternoon, that was the best thing to do, considering the totality of the circumstances.”
Article 14.04, V.A.C.C.P., provides:
“Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the accused.” (Emphasis added)
The majority says that the mere assumption by an experienced police officer that a magistrate would not be readily available carries little weight. However, in Rose v. State, 470 S.W.2d 198 (Tex.Cr.App.1971), as here, the officer’s assumption of the nonavailability of a magistrate was sufficient. There has never been a requirement that an attempt be made to contact a magistrate before an Article 14.04, supra, arrest can be made. Further, even if a magistrate had been readily available, the time to be taken in driving to the magistrate, setting out the probable cause, having it reviewed, and proceeding to the arrest might well have resulted in the escape of the suspects. When an armed offender is preparing to escape, time is of the essence. The statute reflects this. Even if the delay had been only thirty or forty-five minutes, such delay may have been critical. The majority seems to ignore *473this factor. The officer assumed a magistrate would not be readily available. But even if one had been available, the officer could not have afforded the delay in making the arrest when he had reason to believe the offenders would be leaving at any moment.
The majority says that the assumption that a magistrate was unavailable is shown to be incorrect because the appellants later received magistrate warnings. However, this was between 8:00 and 9:00 p. m., not at the time of arrest.
Next, the majority claims that the record reflects that the victim testified that he told the officers that when he was released three of the four abductors were asleep or passed out and, therefore, the officers should have known there was no exigency in making the arrest. However, the record shows the victim testified as follows:
“Q. Did you tell the officers that three of them were passed out on the floor and one of them brought you back?
“A. I believe so, yes, sir. I don’t know.”
It seems that such answer is different than that reported by the majority as a reason for not finding any exigency.
The majority points out that when the officers made their raid, three of the defendants were asleep or passed out. However, it is settled that questions concerning the legality of an arrest must be examined as the situation appeared to the officer at the time and not as it appears by hindsight, Talbert v. State, 489 S.W.2d 309 (Tex.Cr.App.1973).
Finally, the majority points out that an officer had the house and car under surveillance and that no defendants were seen leaving the house prior to the arrest. It has never been held that a defendant must be in the process of escaping before Article 14.04, supra, is applicable. The statute itself reads “about to escape." If the State were required to show that the defendants were in the midst of their escape, the statute would have said “and that the offender is escaping.” All the State must do is show that the officer had reason to believe that the offender is about to escape. Certainly that was done in this instance when the officer was told that afternoon that all of the offenders had said they would leave that day and one had indicated his leaving was imminent. This Court in Tarpley v. State, 565 S.W.2d 525 (Tex.Cr.App.1978), in upholding a warrantless arrest on the basis of Article 14.04, stated, “Contrary to appellant’s contention, the fact that he and Hudson were not in the act of escaping at the time of the arrest is immaterial.” 565 S.W.2d at 530. In that case, as here, the officers were told facts that led them to believe that the defendants were about to escape though there was no showing that the defendants had commenced the escape. Such was held sufficient to authorize a war-rantless arrest. If an officer were forced to wait until the escape by armed and dangerous persons was commenced, the lives of the offenders, police, and innocent bystanders could be endangered. The statute does not require such a result, and, before today, neither had this Court. See Rose v. State, supra; Maloy v. State, 582 S.W.2d 125 (Tex.Cr.App.1979).
Rutherford v. State, 104 Tex.Cr.R. 127, 283 S.W. 512 (1926), was a reversal in which this Court, in interpreting the predecessor to Article 14.04, said that the officer must obtain a warrant unless he knows or is advised that the offender is about to escape. That is the situation confronted here by the police. The officer had been advised by the victim that the offenders were about to escape.
Maloy v. State, supra, is a case extremely similar to the instant case. There the police, apparently late at night and after obtaining probable cause to arrest, had been told that the defendant was going to “bug out” soon. There was, as here, testimony that a magistrate was not readily available. There was no showing an attempt was made to locate a magistrate. This Court upheld the warrantless arrest of the defendant in his residence pursuant to Article 14.04 on the basis that the officers had information that he was about to escape. Again, there was no showing that the de*474fendant was escaping, only that the officers had information that the defendant was about to escape. If the majority is going to reverse the instant case, Maloy should be distinguished or overruled.
In Loving v. State, 559 S.W.2d 363 (Tex.Cr.App.1977), the officer, after obtaining probable cause to arrest the defendant, apparently failed to seek an arrest warrant. This was at approximately 9:00 p. m. or shortly thereafter. Instead, he put out a pick-up order and resumed patrol. He then saw the suspects driving about, evidently in the same area. There is no indication that the suspects attempted to flee. During the search incident to arrest, inculpatory evidence was found. This Court, citing Article 14.04, upheld the arrest because it occurred only a few hours after the crime. The opinion was silent concerning the availability of a magistrate or any attempt to obtain a warrant.
In Rose v. State, supra, police officers were stopped by the victim of a robbery. The victim told the officer who had committed the robbery and where it occurred. The victim also stated that the suspect had left the premises or would be leaving soon. The officers later arrested the defendant. The officers testified that they did not believe they had time to attempt to procure a warrant. There is no indication an attempt was made to secure a warrant. When arrested, the defendant was in his house and had not begun to escape. Citing Article 14.04, this Court upheld the warrantless arrest. This Court distinguished that case from another warrantless arrest case, Vinson v. State, 138 Tex.Cr.R. 557, 137 S.W.2d 1048 (1940), in which the arrest was invalid. The Court held that the fact that the officers had been told by the victim that the offender would soon be escaping justified the warrantless arrest. The Court said:
“In the present case the officers testified that Jefferies (victim) told them that Rose (defendant) was about to leave. The specific words ‘about to escape’ do not have to be used to show that such an arrest may be authorized without a warrant under Article 14.04, supra.” 470 S.W.2d at 200.
The distinction present in Rose is likewise present here.
In Thornton v. State, 451 S.W.2d 898 (Tex.Cr.App.1970), the defendants were arrested in an apartment without a warrant. This Court justified such arrest under Article 14.04 because there was no time to secure a warrant even though in that case no one had told the officers that the defendants were leaving. There the officers simply feared that the defendants might leave the location where they had been spotted. The officer, who first located the apartment where the defendants were, waited for backup support before making the arrests. The defendants had not yet commenced any escape at the time of the arrest.
Virtually indistinguishable from the case at bar is Flanagan v. State, 465 S.W.2d 755 (Tex.Cr.App.1971). In that case the police received word that the defendants were in a certain apartment and were about to leave town. The officer testified that he did not believe he had time to obtain a warrant. No showing was made that he made any attempt to contact a magistrate. This Court upheld the warrantless arrest pursuant to Article 14.04.
This case presents a far stronger argument for a warrantless arrest than O’Neal v. State, 416 S.W.2d 433 (Tex.Cr.App.1967). There the defendant claimed his arrest was illegal because there was no evidence he was about to escape. This Court said:
“In his fourth ground of error, appellant insists that the court erred in admitting the pair of shorts (state’s exhibit 9), in evidence because they were obtained as the. result of a search following an illegal arrest.
“The facts presented by the state relative to the arrest show that about 7 o’clock on the evening following commission of the offense, Deputy Sheriff J. N. Dechman received information from a businessman whom he considered to be credible that one of the three men being sought for the rape was named Lynwood and that one was named Alexander. Between 8 and 9 p. m., the officer had *475ascertained the name of Lynwood O’Neal and a description of his car. The officer also had information that appellant would be in a certain general area and felt that if he took the time to try to find a magistrate to obtain an arrest warrant appellant might leave the area. At 10 p. m., he found appellant talking to another officer who had no intention of arresting him. The car meeting the description given was parked nearby. He then arrested appellant. Officer Dechman testified that it would have taken at least forty-five minutes for him to have gone after an arrest warrant and he felt that, had he done so, appellant might escape.
“Under the record, the officer was authorized to arrest appellant without a warrant, under the provisions of Art. 215, Vernon’s Ann.C.C.P. of 1925, now Art. 14.04 of the 1965 Code, upon receiving information that the felony offense had been committed and fearing that appellant would escape. See: Price v. State, Tex.Cr.App., 410 S.W.2d 778, and cases therein cited.” 416 S.W.2d at 435.
The Court concluded that the arrest and subsequent search were legal.1 There was, however, as here, no showing an attempt was made to locate a magistrate. See also, Sutton v. State, 495 S.W.2d 912 (Tex.Cr.App.1972); Washington v. State, 518 S.W.2d 240 (Tex.Cr.App.1975); Price v. State, 410 S.W.2d 778 (Tex.Cr.App.1967); Jones v. State, 565 S.W.2d 934 (Tex.Cr.App.1978).
The majority cites only two cases in discussing the legality of the arrest under Article 14.04, supra. These are both cited for the proposition that the right to a war-rantless arrest is controlled by statute. I have no quarrel with such proposition. However, the majority does not bother to cite one case in exairiining whether the arrest in question was valid. The majority simply overrules, sub silentio, numerous cases previously decided by this Court.
Second, even if the search violated Article 14.04, any error in admitting the seized evidence was harmless beyond a reasonable doubt. The victim testified positively that the appellants were the ones who had beaten and tortured him over an eleven hour period. His fiancee testified that she recognized two of the appellants as the persons who had attempted to burglarize the victim’s apartment after he had been abducted. The fiancee got the license number of the car driven by the appellants. The car was found parked outside the house where they were arrested. Pictures of the house were identified by the victim as the place he was held. The entire tenor of the defense approach in cross-examination was not to cast doubt upon the identification of the appellants, but rather was an attempt to imply that the appellants believed that the victim precipitated the incident by stealing money from one of the appellants.
In Holcomb v. State, 484 S.W.2d 938 (Tex.Cr.App.1972), cert. denied 410 U.S. 940, 93 S.Ct. 1404, 35 L.Ed.2d 606 (1973), this Court held that, where the victim testified positively as to the defendant’s identity, any error in admitting certain evidence seized as a result of an illegal arrest was harmless.
For the above reasons, I dissent.
. The concurring opinion notes that the Fifth Circuit granted O’Neal relief. However, the Fifth Circuit granted relief only because they found that the officer lacked sufficient probable cause to arrest O’Neal. That issue is entirely separate from the issue before us today and from the quoted excerpt from O’Neal v. State, supra. Surely my brother Clinton does not contend that there was a federal constitutional requirement for a warrant in the O’Neal case. See United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). Just as surely there can be no serious argument made here that the police lacked probable cause. The distinction between probable cause for arrest and belief that a person is about to flee, both of which are required for a warrantless arrest, should not be confused.