Appellant, in his motion for a rehearing, complains of various statements in our original opinion as not justified by the record. We have again reviewed the record in the light of the objections addressed thereto, but remain of the same opinion as originally expressed by us. He first criticizes the following statement in our opinion: "The above testimony shows that the deceased was informed that J. W. Rickman had committed a felony and that the deceased was acquainted with Rickman, and that he was a fugitive from such felony. If that be true, and surely if he knew Rickman, he recognized him when he saw him in the car, then under Art. 215 Cow. C. P. he would have the right to pursue and arrest the accused."
Appellant asks where there is any evidence that a felony had been committed? If a car was stolen, where is there any evidence to show such constituted a felony? We quote from the testimony given by Alex Burke as follows: "I know that on the afternoon of Wednesday, March 2, 1938, Marion Taylor knew that the officers were looking for J. W. Rickman for a felony committed in Hunt County on the night before. At that time Marion Taylor gave me a description of J. W. Rickman."
It occurs to us that this testimony alone justified the statement complained of in our original opinion. His second criticism is addressed to the following statement in our opinion: *Page 201
"A second ground justifying this arrest, so we think, is the fact that appellant was at the time in possession of a pistol, which pistol he held in the back of the cab driver all the way from Dallas to McKinney, and which he still had when accosted by the deceased on the first time in the streets of McKinney, and which he still had at the time of the killing."
He then asks where there is any proof that appellant still had the pistol when accosted by the deceased for the first time on the streets of McKinney and which he still had at the time of the killing?
We quote from the testimony of Henry Lee Jackson, the cab driver: "He then continued to keep that gun stuck in my back, that pistol. That was the defendant, J. W. Rickman who did that. All the time I was coming from Dallas to McKinney, he had his gun between my shoulders, touching my body. The defendant had this gun in my back all the time I was coming up that highway."
That he shot the deceased, a city policeman, with a pistol when he undertook to arrest him is not even questioned. Consequently he still had the pistol at that time. Here we have testimony that appellant was, by the use of a pistol, a prohibited weapon, making an assault upon the taxi driver, which is a felony in this State, and for which the deceased was justified in arresting appellant.
In his motion appellant also asks for proof that the deceased actually saw the pistol in the hands of the appellant. Of course the deceased, who is dead and whose lips were closed by the fatal wounds inflicted upon him by appellant, was the only person who knew this, but we may look to the circumstances testified to by others and if these circumstances logically lead to such a conclusion, the requirements of the law have been met. The deceased had eyes; he was looking at the occupants of the car; the windows of the car were down and there was nothing to obstruct his view; hence the only reasonable conclusion to be drawn from the circumstances is that the deceased saw appellant making an assault upon the cab driver with a prohibited weapon, which authorized him to make an arrest. Therefore it is obvious that several reasons existed for the arrest of appellant.
To answer each of the various arguments in appellant's motion would extend this opinion to great length and serve no useful purpose. We deem it sufficient to say that in view of the fact that the extreme penalty was assessed against him, we have gone over the entire record with great care, but see no *Page 202 good reason for receding from the conclusions reached by us on original submission.
The motion for a rehearing is overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.