Reynolds v. State

Court of Criminal Appeals of Texas

Reynolds v. State

280 S.W. 592, 103 Tex. Crim. 227, 1926 Tex. Crim. App. LEXIS 164

CourtCourt of Criminal Appeals of Texas

DecidedFebruary 17, 1926

DocketNo. 9883.

StatusPublished

This text of 280 S.W. 592 (Reynolds v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Reynolds v. State, 280 S.W. 592, 103 Tex. Crim. 227, 1926 Tex. Crim. App. LEXIS 164 (Tex. 1926).

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Opinion

HAWKINS, Judge.

Appeal is from a conviction for resisting arrest, the punishment being by fine of twenty-five dollars.

It is alleged in the indictment that the arrest was without warrant but authorized nevertheless because appellant in the presence and hearing of the officer went “into and near a certain public place, to-wit: The White House Cafe, * * * and

did then and there use loud, profane and vociferous language in a manner calculated to disturb the inhabitants of said public place.” The evidence shows that the language used, the arrest and resistance occurred in a street or passway separated from the cafe named by two intervening buildings. The owner of the cafe testified to the public character of his place of business, but gave no evidence that the language attributed to appellant was heard by him or any one else in the cafe. There is no testimony suggesting that appellant on the occasion under investigation was in the cafe or nearer to it than the point in the street where the disturbance and arrest occurred. Under Articles 474 and 475 Penal Code (1925 Revision) the pleader might have averred that the disturbing language was used in the public street, but having chosen to allege that it occurred in or near the cafe the state is bound to meet it with corresponding proof. The failure to do this was called to the trial court’s attention by exception to the evidence because of the variance mentioned.

The judgment must be reversed because of the state’s failure to prove its case as alleged.

The judgment is reversed and the cause remanded.

Reversed and remanded.

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HAWKINS, Judge.

Appeal is from a conviction for resisting arrest, the punishment being by fine of twenty-five dollars.

It is alleged in the indictment that the arrest was without warrant but authorized nevertheless because appellant in the presence and hearing of the officer went “into and near a certain public place, to-wit: The White House Cafe, * * * and

did then and there use loud, profane and vociferous language in a manner calculated to disturb the inhabitants of said public place.” The evidence shows that the language used, the arrest and resistance occurred in a street or passway separated from the cafe named by two intervening buildings. The owner of the cafe testified to the public character of his place of business, but gave no evidence that the language attributed to appellant was heard by him or any one else in the cafe. There is no testimony suggesting that appellant on the occasion under investigation was in the cafe or nearer to it than the point in the street where the disturbance and arrest occurred. Under Articles 474 and 475 Penal Code (1925 Revision) the pleader might have averred that the disturbing language was used in the public street, but having chosen to allege that it occurred in or near the cafe the state is bound to meet it with corresponding proof. The failure to do this was called to the trial court’s attention by exception to the evidence because of the variance mentioned.

The judgment must be reversed because of the state’s failure to prove its case as alleged.

The judgment is reversed and the cause remanded.

Reversed and remanded.

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Bluebook (online)

280 S.W. 592, 103 Tex. Crim. 227, 1926 Tex. Crim. App. LEXIS 164, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reynolds-v-state-texcrimapp-1926.