Toliver v. State

Court of Criminal Appeals of Texas

Toliver v. State

24 S.W. 286, 32 Tex. Crim. 444, 1893 Tex. Crim. App. LEXIS 308

CourtCourt of Criminal Appeals of Texas

DecidedNovember 8, 1893

DocketNo. 712.

StatusPublished

Cited by3 cases

This text of 24 S.W. 286 (Toliver 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

Toliver v. State, 24 S.W. 286, 32 Tex. Crim. 444, 1893 Tex. Crim. App. LEXIS 308 (Tex. 1893).

Pincite

Opinion

DAVIDSON, Judge

Appellant was indicted for a violation of articl222 of the Penal Code. The warrant for his arrest issued from the Justice Court, and his resistance is alleged to have been made with the intent to murder the officer seeking to execute it. His trial resulted in his conviction, and his punishment was assessed at a term of years in the penitentiary.

The warrant is set out in the indictment, and was directed to the “sheriff or any constable of-county,” etc. It is urged that the omission of the name of the county in the direction of the warrant renders it invalid, and a motion to quash the indictment on this ground was overruled. This ruling is assigned as error. In this State, a warrant of arrest can not be executed beyond the county of its issuance, except in cases specially enumerated in articles 237, 238, Code of Criminal Procedure. In none of these exceptions can a justice of the peace order a warrant executed beyond the limits of his county. The warrant, when issued by the magistrate, must be directed to some suitable officer of his county. Failing in this, the warrant is not a legal one. Code Crim. Proc., arts. 232-234, 237, 238, 905; Archb. Crim. Plead, and Prac., 108, 109. We are of opinion the motion to quash should have been sustained, and the indictment quashed.

The testimony does not sustain the conviction. It does not establish the fact that defendant made an assault upon the officer with an intent to murder him, or even to kill him. The warrant being illegal, the officer was not authorized to execute it, and the defendant was not required to submit to arrest. His resistance, however, must not be made in an unwarrantable or illegal manner, and if he does so he would be responsible for his acts, but not under this bill of indictment. It is unnecessary to enter here into a discussion of the questions involved in such state of case. They have been frequently discussed in this State.

The judgment is reversed, and because the indictment is insufficient, the prosecution is dismissed.

Sever sed and dismissed.

Judges all present and concurring.

Free access — add to your briefcase to read the full text and ask questions with AI

DAVIDSON, Judge

Appellant was indicted for a violation of articl222 of the Penal Code. The warrant for his arrest issued from the Justice Court, and his resistance is alleged to have been made with the intent to murder the officer seeking to execute it. His trial resulted in his conviction, and his punishment was assessed at a term of years in the penitentiary.

The warrant is set out in the indictment, and was directed to the “sheriff or any constable of-county,” etc. It is urged that the omission of the name of the county in the direction of the warrant renders it invalid, and a motion to quash the indictment on this ground was overruled. This ruling is assigned as error. In this State, a warrant of arrest can not be executed beyond the county of its issuance, except in cases specially enumerated in articles 237, 238, Code of Criminal Procedure. In none of these exceptions can a justice of the peace order a warrant executed beyond the limits of his county. The warrant, when issued by the magistrate, must be directed to some suitable officer of his county. Failing in this, the warrant is not a legal one. Code Crim. Proc., arts. 232-234, 237, 238, 905; Archb. Crim. Plead, and Prac., 108, 109. We are of opinion the motion to quash should have been sustained, and the indictment quashed.

The testimony does not sustain the conviction. It does not establish the fact that defendant made an assault upon the officer with an intent to murder him, or even to kill him. The warrant being illegal, the officer was not authorized to execute it, and the defendant was not required to submit to arrest. His resistance, however, must not be made in an unwarrantable or illegal manner, and if he does so he would be responsible for his acts, but not under this bill of indictment. It is unnecessary to enter here into a discussion of the questions involved in such state of case. They have been frequently discussed in this State.

The judgment is reversed, and because the indictment is insufficient, the prosecution is dismissed.

Sever sed and dismissed.

Judges all present and concurring.

Cite This Page — Counsel Stack

Bluebook (online)

24 S.W. 286, 32 Tex. Crim. 444, 1893 Tex. Crim. App. LEXIS 308, Counsel Stack Legal Research, https://law.counselstack.com/opinion/toliver-v-state-texcrimapp-1893.

Opinion

Related

Cite This Page — Counsel Stack