In our opinion dated June 24th, 1932, granting appellant's motion for rehearing, we said the arresting officer had taken appellant away "from his dwelling and placed him in jail." In the state's motion for rehearing the inaccuracy of that statement was called to our attention. We should have said that appellant had been taken away "from his dwelling and placed in custody of another officer." The original opinion has been corrected in accordance with the facts.
In the state's motion for rehearing it is strenuously urged that the arrest of appellant was legal. Article 215, 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 toescape, so that there is no time to procure a warrant, such peace officer may without warrant pursue and arrest accused." It is not necessary to discuss whether circumstances discovered by a peace officer himself, and which led him to believe that a party has committed a felony, may be substituted for the provisions of the statute which says that the information must reach the officer upon representations of a credible person. That part of the statute which says that "the offender is about to escape" is indispensable. That such condition did not exist in the present case seems to be without dispute in fact. At the time the officer went to appellant's house, appellant was partially undressed and in bed. In Cortez v. State,44 Tex. Crim. 169, it was said that it was not shown that Cortez was about to escape, but: "* * * on the contrary, the evidence is to the effect that he was at home in the county, engaged in making a crop, and that after the sheriff learned of his whereabouts, on the morning of the homicide, he was then within six miles of the justice of the peace, and could have obtained a warrant had he so desired."
We think nothing is to be gained by a further discussion of whether evidence of the empty shell being found on appellant's porch was harmful. The matter was given careful consideration when appellant's motion for rehearing was before us. Our minds have not been changed in regard to the question. *Page 119
The state's motion for rehearing is overruled.
Overruled.
JUDGE LATTIMORE adheres to the views expressed in his dissenting opinion at the time appellant's motion for rehearing was granted.