McGrew v. State

17 Tex. Ct. App. 613, 1885 Tex. Crim. App. LEXIS 42

• Court: Court of Appeals of Texas
• Decided: March 11, 1885
• Docket: No. 1761
• Status: Published

Opinion

Willson, Judge.

Article 222 of the Penal Code, under which the conviction in this case was had, provides: “ If any party against whom a legal warrant of arrest is directed in any criminal case resist its execution when attempted by any person legally authorized to execute the same, he shall be fined,” etc. It is not alleged in the information that the legal warrant, the resistance of the execution of which is charged, was a warrant of arrest. It might have been a legal warrant as alleged in the information, and yet not have been a legal warrant of arrest, and if it was not a legal warrant of arrest there was no offense against the law under this article. Hor does the information allege that said warrant was directed to said officer in any criminal case. It might be inferred from the information that it was a warrant of arrest against the defendant in a criminal case in which he was charged with an affray; but we are not at liberty to resort to inferences to supply essential allegations in an indictment or information. We are of the opinion that the information is fatally defective, for the reasons above stated.

We are further of the opinion that the evidence does not show such conduct on the part of defendant as constituted resistance to the officer. His name was misspelled in the warrant, and he objected to being arrested under said warrant because of that irregularity, but, upon being informed that he could not for this reason question the authority of the officer to make the arrest, he at once surrendered himself and went with the officer, obtained sureties and executed a bail bond.

Because of the defects in the information the judgment is reversed and the prosecution is dismissed.

Reversed and dismissed.

[Opinion delivered March 11, 1885.]