Appellant was charged with an assault with intent to commit murder and assessed a penalty of two years in the state prison.
The facts are contradictory to some extent. Mr. Dick Self was the mayor of the City of Honey Grove, and the victim of this alleged assault. On the night of May 29, 1947, Mr. Richard Allen was a policeman and night watchman of such city. According to the testimony of Mr. Self, the appellant's wife 'phoned him and said that there was a disturbance at her home and she seemed to be in need of assistance by reason thereof. The Mayor then went in search of the Chief of Police. Being unable to find him, he found Mr. Allen, who did not drive a car. The Mayor and the night watchman then proceeded to the home of appellant and his wife. They saw Mrs. Pritchett therein with evidence of having been beaten on her face. They talked to her awhile and eventually appellant came from around behind the house. Upon being asked what the disturbance was about, he answered the Mayor rather shortly and profanely. Appellant had evidently been drinking some intoxicating liquor. He did some loud talking and cursing in their presence, whereupon the Mayor ordered the night watchman to take appellant into custody. A difficulty then ensued in which the Mayor was struck on the head with some kind of a blunt instrument which crushed his skull and caused unconsciousness, which necessitated a serious operation for the removal of the bones and trephining the area of the brain damaged by the stroke and many hours of suffering and danger therefrom. The above is a synopsis of the State's testimony.
The appellant's testimony shows that his wife had unbraided him for drinking and he had probably pushed her around some, but they had made up and he had helped her with her household duties. However, appellant's fourteen-year-old stepdaughter had gone to the Mayor's office and reported some trouble at this house just prior to his visit thereto; that the Mayor and the night watchman came to appellant's house and inquired relative to the matter and were told that there was no trouble; that they then began to abuse and belittle the wife; that a fight then ensued; that no weapons were used by appellant; that his wife was struck in the melee. Appellant escaped and remained away for about a week and was finally captured. He was going under an assumed name at the time. One of appellant's hammers was found near the scene of the difficulty. *Page 435
There are 42 bills of exception in the record, the majority of which seem to be concerned with the proposition that Mayor Self and his night watchman were trespassers at the appellant's home and that appellant had a right to eject them therefrom. That proposition was met by the State's claim that such persons were primarily invitees of Mrs. Pritchett, which fact was shown by the testimony of the Mayor as well as that of the appellant's stepdaughter.
It was shown that Honey Grove was an incorporated city and that Self was its Mayor and that appellant knew him as such. Article 33, C. C. P. provides that the mayor of an incorporated town is a magistrate; and Art. 34, C. C. P. provides that it is the duty of a magistrate to preserve the peace by the use of all lawful means, and to issue all process to aid in preventing and suppressing crime. Article 212, C. C. P. provides that any person may arrest without a warrant anyone who commits an offense against the public peace in the presence of such person. Article 213, C. C. P. provides for the arrest by any peace officer when a breach of the peace is committed in the presence or view of a magistrate; and such magistrate may verbally order the arrest of the offender.
The testimony of the State shows that appellant was cursing, swearing and disturbing the peace at the time the Mayor ordered his arrest, which order the Mayor had a right to issue; and it then became the duty of the appellant to submit thereto. The fact that appellant was charged with a disturbance of the peace on his own premises would not excuse him from liability therefor. See Bumgarner v. State, 142 S.W. 4, 64 Tex. Crim. 165.
The knowledge upon the part of appellant as to the official character of the Mayor and his officer was present with appellant according to the testimony introduced by the State, and such was properly presented to the jury in the trial court's charge. It was not necessary that their official character should be stated at such time if the jury were convinced that appellant was already possessed of such information. See 22 Tex. Jur. pp. 458-459, sec. 48. And it is worthy of note that in appellant's written statement taken after his apprehension and arrest, he stated that he knew Mayor Self and that he was the Mayor of Honey Grove at the time of the difficulty.
It was appellant's duty, as shown by the State's testimony, to submit himself to the order of the Mayor; and again, it is shown that in an endeavor to escape such custody, he struck *Page 436 the Mayor, evidently with a carpenter's hammer, and caused a dangerous wound on the Mayor's head and one that could have produced death, causing paralysis and a long drawn-out recovery, part of the skull being removed and the wound being trephined. It is further shown by the testimony that the wound was very serious and would doubtless have resulted in death had it not been for the eary surgical attention which he received.
Complaint is made relative to the introduction in evidence before the trial court only of an ordinance of the city of Honey Grove containing in substance the provisions of Art. 214, C. C. P., relating to the authority of a municipality to establish certain rules pertaining to an arrest without warrant of certain persons found therein who were committing a breach of the peace or threatening to do so. Under the testimony of the Mayor, as well as that of appellant's stepdaughter, we think the ordinance was admissible. Surely no error could be predicated thereon, however, since the record shows that such ordinance was never read to the jury.
Evidently of benefit to the State were the following excerpts from the statement of appellant made some days after the occurrence, some portions of which appellant denied while upon the witness stand:
"On Thursday, May 29th, 1947, I was working in Commerce, Texas, as a carpenter's helper on the music hall at the College. I got off about 4:30 P. M. and went by my mother's and got some milk and butter. I was there just a little bit, and then left. Between the time I left my mother's house and the time I arrived at my home in Honey Grove I had gotten hold of some whiskey and drank quiet a bit. I guess I drank between 1 1/2 and two pints. When I got home my wife scolded me about coming in home when I had been drinking. We then had a little family quarrel. * * *
"A little while later Mr. Dick Self and another big fellow that I am not acquainted with came down there. My wife was in the front of the house, and I was in the back part of the house. I went out the back for something, I don't remember what. I took another drink of whiskey while I was out there. In a little bit Dick Self and the big fellow came around to where I was. I don't remember what all was said. I decided that the big fellow was a little rough, so I picked up something that was there on the ground and hit at the big fellow. I missed the big fellow and hit Mr. Self. I don't know what it was I hit him with. * * * *Page 437
"My wife was standing there, but she wasn't in any scuffle with any of us at that time. I didn't hit my wife at that time. After I hit Mr. Self I became scared and turned and ran. I don't remember what I did with the thing I hit Mr. Self with. I've known Mr. Self since I've been in Honey Grove, and I've seen him at the City Hall where we pay our water bill. I knew that he was the Mayor of Honey Grove. He didn't treat me rough that night that I can recall."
The careful trial court, in an exhaustive charge on the law, seems to have submitted every defense raised for appellant under the law and the facts, and we express the opinion that the charge fully and fairly sets forth the law as it exists, and as applied to the facts shown herein.
It would serve no useful purpose to write seriatim on each of the bills of exception, but would unduly prolong this opinion and not further add to the jurisprudence of the state.
We think this case has been properly tried, and finding no error therein, the judgment is affirmed.
ON MOTION FOR REHEARING.