In his motion for rehearing appellant apparently concedes that, under the circumstances reflected by the record, we were correct in holding in the original opinion that Mr. Harrison, who was a policeman of the City of Marshall, had the authority to arrest appellant without a warrant. However, appellant insists that he had the right to resist the arrest because of the fact that the officer failed to make known his authority and the reason for the arrest.
Adverting to the testimony, it is observed that we were in error in stating in the original opinion that the officer commanded appellant to go home, At this juncture we quote from the testimony of Mr. Harrison, as follows: "I did have an opportunity to see and observe Jim Bennett on this occasion. Yes, sir, he appeared to be intoxicated. What I did and what I said when I got to him was I told him to come on and go with me, that he had too much liquor to be on the street. * * * Yes, sir, I said that I had known the defendant, Jim Bennett, some four, five or six years. Yes, sir, I know him by name as well as by appearance. Yes, sir, he knew me also. I was dressed in my uniform. Yes, sir, the regulation, police uniform on that date. * * * When I told him to come and go with me he said that he was going to the ball game and protested about being arrested. I told him that there was no need to act that way and the young fellow that was with him told him the same thing. I don't know whether he told me that he had not done anything to be arrested for. No, sir, I didn't tell him somebody had filed a complaint against him. Yes, sir, he told me that he wanted to go to the ball game and not to jail."
It is obvious that appellant knew Mr. Harrison was a police officer and acting in his official capacity at the time he arrested him. Also it is clear that the officer advised appellant, in effect, that he was too drunk to be on the street. In short, we think the testimony shows that the officer sufficiently apprised appellant that he was arresting him for drunkenness. It would thus appear that he had met all of the requirements of the law in making the arrest. We quote the rule announced in *Page 198 Plasters v. State, 1 Tex.Crim. Rep., as follows:
"Whilst it is the duty of an officer attempting to arrest to make known his purpose and the capacity in which he acts, if, however, that purpose and capacity are known to the party when an arrest is attempted, and the arrest is otherwise lawful, submission to arrest is a duty, and resistance is unjustifiable." See, also, Branch's Ann. Tex. P. C., page 1116 and Tiner v. State, 44 Tex. 131.
The motion for 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.