IV. Authority to Arrest without Warrant, 474. A. In General, 474. B. When Authorized, 475. 1. By Officers, 475. a. Felony, or Breach of Peace, in Presence of Officer, 475. d. Suspicion or Reasonable Grounds for Belief That Offense Has e. Prevention of Escape of Felon, 478. f. Power Conferred upon Municipalities to Authorize Arrest without Warrant, 478. g. Power Conferred on Election Judges to Keep Peace, 479. 2. By Private Persons, 479. V. Authority under Warrant, 479. VI. Place of Arrest, 480. A. Under Warrant, 480. B. Without Warrant, 481. VII. Mode of Making Arrest, 481. VIII. Time of Making Arrest, 483. IX. Custody and Disposition of Prisoner, 483. X. Property in Possession of Prisoner, 483. XI. Rearrest, 483. XII. Second Arrest, 484. CROSS REFERENCES. See the titles ACCOMPLICES, ACCESSORIES, AIDERS AND ABETTORS, ante, p. 8; ASSAULT AND BATTERY; BAIL AND RECOGNIZANCE; BURGLARY; CONVICTS; CRIMINAL LAW; ELECTIONS; ESCAPE AND RESCUE; EXTRADITION; HABEAS CORPUS; HOMICIDE; MALICIOUS PROSECUTION; OBSTRUCTING JUSTICE; PRISONS. As to examination by magistrate after arrest, see the title CRIMINAL LAW. As to the necessity of imprisonment of accused pending appeal without bail, see the title CRIMINAL LAW. As to whether or not resisting arrest is evidence of consciousness of guilt, see the title EVIDENCE. As to killing in the attempt to make an illegal arrest, see the title HOMICIDE. I. Definition. In criminal cases an arrest is the apprehending or detaining of a person in order to be forthcoming to answer an alleged or a suspected crime. Ex parte Sherwood, 29 Tex. Cr. App. 334, 336, 15 S. W. 812. "A person is said to arrested be when he has actually been placed under restraint, or taken into custody, by the officer or person executing the warrant of arrest." Conoly v. State, 2 Tex. Cr. App. 412, 419. Illustrations-Facts Constituting Arrest. While defendant was in a barroom, violating a city ordinance, the notified, city marshal was and he thereupon summoned a posse, and confined defendant in a neighboring crib. Held, that defendant was under arrest. Grosse v. State, 11 Tex. Cr. App. 364. Actual Contact Unnecessary. The reading of a warrant to accused, who was sick in bed, and informing her that she would have to give bond or go to jail, constitutes an arrest, since actual contact is not necessary. Shannon v. Jones, 76 Tex. 141, 148, 13 S. W. 477. Facts Not Constituting Arrest.The fact that an officer armed with a warrant for defendant's arrest went to him, and, without producing the warrant, simply told him to proceed to the office of a justice who wished to see him, did not constitute an ar fense," as used in the clause "or if In the revision (Code Cr. Proc. 1895, art. 114) the only change in such article is the omission of the word "such" in the clause "or that if any Ex Code Cr. Proc. 1895, art. 42, providing that it is the duty of every magistrate to preserve the peace within his jurisdiction, to issue all process to aid in preventing and suppressing crime, and to cause the arrest of offenders, that they may be brought to punishment, gives a magistrate no authority to cause the arrest of one who is charged with intent of committing an offense against the laws of the state. Ex parte Muckenfuss, 52 Tex. Cr. App. 467, 107 S. W. 1131. III. The Warrant. See the title CRIMINAL LAW. rest. Conoly v. State, 2 Tex. Cr. App. IV. Authority to Arrest without 412. Warrant. II. Grounds and Purposes in A. IN GENERAL. General. See post. "Rearrest," XI. Meaning of Arrest without Warrant. -When it is said that an arrest may be made without a warrant it is intended that issuance of warrant is unnecessary. Cabell v. Arnold, 86 Tex. 102, 107, 23 S. W. 645, reversing 22 S. W. 62. Code Cr. Proc. 1895, art. 114, provides that, whenever a magistrate is informed on oath that an offense is about to be committed against the person or property of the informant or of another, "or if any person has threatened to commit an offense," he must issue a warrant for the arrest Upon What Founded. "The whole of accused. Held, that the word "of-authority given to arrest without war rant is founded in the law of necessity -a necessity for prompt action in order to arrest or detain the offender, so as to prevent his escape by delaying the time necessary to procure a warrant for his arrest." Lacy v. State, 7 Tex. Cr. App. 403, 412. What Constitutes Presence of Officer. The fact that an officer is within seeing and hearing distance of a criminal act is not sufficient to make it in his presence, but he must also be able to detect it by sight and hearing as the act of accused. (Civ. App.), Brown v. Wallis, 101 S. W. 1068, certified questions answered (Sup.), 101 S. W. 1070. Taking Cattle.-A judgment debtor openly and under a claim of right retook cattle levied on. The officer Conferred and Controlled by Statute. The authority to arrest without warrant is conferred and controlled in this state by statutory provision, which must be construed in subordination to the constitutional guaranty against unreasonable searches and seizures. making the levy and the judgment Lacy v. State, 7 Tex. Cr. App. 403. creditor saw the debtor drive the catLegality a Question of Law. tle from the inclosure where the offiWhether an arrest was legal or illegal is a question of law, and a matter for the court to decide, and so instruct the jury. Earles v. State, 52 Tex. Cr. App. 140, 106 S. W. 138. B. WHEN AUTHORIZED. 1. By Officers. cer had placed them. They expected to find them at the debtor's residence. Held, the officer could not arrest him without a warrant, either on the theory that a theft was committed in his view, or on the theory that stolen property was found in possession of a. Felony, or Breach of Peace, in the debtor, authorizing an arrest un Presence of Officer. At common law, peace officers have the right to arrest, without warrant, all persons guilty of breach of peace, or violations of other penal laws, in their presence; but the arrest must be at the time of the offense. Pratt v. Brown, 80 Tex. 608, 612, 16 S. W. 443. Present Rule.-Arrest without warrant is authorized by statute when, the offense being a felony, or an offense against the public peace, it is committed in the presence or view of an officer. Ross v. State, 10 Tex. Cr. App. 455; Giroux v. State, 40 Tex. 97, 103; Newby v. Gunn, 74 Tex. 455, 12 S. W. 67; King v. Brown, 100 Tex. 109, 94 S. W. 328, reversing 41 Tex. Cr. App. 588; Lacy v. State, 7 Tex. Cr. App. 403, 413; Brown v. King, 41 Tex. Civ. App. 588, 93 S. W. 1017; Beville v. State, 16 Tex. Cr. App. 70; Weaver 2. State, 19 Tex. Cr. App. 547, 570; Lynch v. State, 41 Tex. Cr. App. 510, 57 S. W. 1130; Miller v. State, 15 Tex. Cr. App. 125; Staples v. State, 14 Tex. Cr. App. 136. der the express provisions of Code Cr. Proc., art. 364. Martin v. State, 49 Tex. Cr. App. 526, 95 S. W. 501. for a Selling Railroad Ticket.-An ordinance authorizing a policeman to make an arrest without a warrant when a city ordinance or state law is violated in his presence is to be construed in connection with Code Cr. Proc. 1895, art. 247, allowing a police officer to make an arrest without a warrant only felony or for an offense "against the public peace;" so that it does not authorize arrest without a warrant for selling a railroad ticket a certificate of without authority, which Pen. Code 1895, art. 1010c, makes an offense subject to penalty provided. Missouri, K. & T. Ry. Co. of Texas v. Warner, 49 S. W. 254, 19 Tex. Civ. App. 463. Embezzlement of Less than Dollar. -Code Cr. Proc. 1895, art. 247, permitting a peace officer to arrest, without warrant, for a felony or breach of the peace committed in his presence, does not authorize the arrest without war rant of a person who, in the presence of the officer, embezzled property of the value of one dollar. San Antonio & A. P. Ry. Co. v. Griffin, 48 S. W. 542, 20 Tex. Civ. App. 91. Stealing Ride on Train.-The offense of trespassing in a railroad yard, and entering a car therein for the purpose of stealing a ride, is neither a breach of the peace nor a felony, and an officer can not arrest the offender without a warrant. Texas & N. O. R. Co. v. Parsons (Cr. App.), 109 S. W. 240, judgment affirmed, 113 S. W. 914; Freeman v. Costley (Cr. App.), 124 S. W. 458. themselves under arrest. Held, insufficient, the inference being that the arrest was without warrant, and, if card playing was the offense referred to by "gaming," an arrest without a warrant, which is limited to felonies and breaches of the peace, not being authorized. Lee v. State, 45 Tex. Cr. App. 94, 74 S. W. 28. C. Information by Credible Person That Felony Has Been Committed. "Penal Code, art. 322, authorizes an arrest without warrant, not only when the offense is being committed within the presence and within the knowledge b. Felony, or Breach of Peace, in Pres- of the officer, but also when the ofence of Magistrate. When the offense, being a felony or breach of the peace, is committed in the presence or view of a magistrate, he may verbally order the officer to make the arrest without a warrant. Ross v. State, 10 Tex. Cr. App. 455; Newby v. Gunn, 74 Tex. 455, 12 S. W. 67; Staples v. State, 14 Tex. Cr. App. 136. ficer is informed by a credible person that the offense is being committed, although the offender, at the time of such information may be in a distant portion of the county, and although the arrest may not be immediately attempted. This is a special provision, and is not controlled by other statutes relating to arrests. It does not prescribe the time within which the arrest shall be made or attempted. It does not require that a warrant of arrest shall be obtained, where there is time and opportunity to obtain it. We think it authorizes an arrest without warrant, upon the information of a credible person that a violation of art. 318 or 320 of the penal code is being committed, although the person committing such violation is not at the time present, or even within reach of the officer, and although there may be time and opportunity to obtain a warrant of arrest." Jacobs v. State, 28 Tex. Cr. App. 79, 12 S. W. 408, 410; San Antonio, etc., R. Co. v. Griffin, 20 For Card Playing.-An information Tex. Civ. App. 91, 48 S. W. 542, 548, for resisting an officer in making an affirmed in 93 Tex. 694, no op. See arrest alleged that defendant and also, Giroux v. State, 40' Tex. 97; others were charged with a "misde- Newby v. Gunn, 74 Tex. 455, 12 S. W. meanor of gaming," and were engaged 67; Morris v. Kasling, 79 Tex. 141, 15 in said game in the presence of the S. W. 226; Johnson v. State, 5 Tex. officer just prior to the resistance, and Cr. App. 43; Ross v. State, 10 Tex. were commanded by him to consider Cr. App. 455; Montgomery v. State, Threat to Take Life of Another.Under Code Cr. Proc., arts. 107-112, empowering peace officers to prevent threatened injuries, by the means to which the person about to be injured might resort, and providing that if, within the hearing of a magistrate, one person shall threaten to take the life of another he shall issue a warrant for the arrest of the person making the threat, a city marshal has no right to arrest without warrant a person threatening to take the life of another. Allen v. State (Cr. App.), 66 S. W. 671. 43 Tex. Cr. App. 304, 65 S. W. 537; Allen v. State (Cr. App.), 66 S. W. 671, 674; Staples v. State, 14 Tex. Cr. App. 136; Ricen v. State (Cr. App.), 138 S. W. 403. The law presumes a citizen to be a credible person. Miller v. State, 32 Tex. Cr. App. 319, 20 S. W. 1103. To authorize an arrest without a warrant upon the information of some credible person, it is not required that the offense is being committed at the time the officers are informed thereof. Miller v. State, 32 Tex. Cr. App. 319, 20 S. W. 1103. Cr. App. 319, 20 S. W. 1103. See, also, Hodges v. State, 6 Tex. Cr. App. 615; Ex parte Sherwood, 29 Tex. Cr. App. 334, 15 S. W. 812; Morawietz v. State, 46 Tex. Cr. App. 436, 80 S. W. 997; Allen v. State (Cr. App.), 66 S. W. 671, 674; Manger v. State (Cr. App.), 69 S. W. 145; Garner v. State, 50 Tex. Cr. App. 364, 97 S. W. 98; Saye v. State, 50 Tex. Cr. App. 569, 99 S. W. 551; Hull v. State, 50 Tex. Cr. App. 607, 100 S. W. 403. Shooting Pistol on Public Road.One who was shooting off a pistol on a country road held, under Pen. Code 1895, arts. 338, 342, to have been properly arrested without a warrant. Ricen v. State (Cr. App.), 138 S. W. 403. Seduction.-See, generally, the title Guilty Party Must Be Made Known. -It is not official duty of a peace officer to arrest under art. 229, Code Crim. Proc., unless the guilty party be made known as well as the fact SEDUCTION. that a felony has been committed. Morris. Kasling, 79 Tex. 141, 147, 15 S. W. 226. An arrest by an officer for seduction, without a warrant, was illegal. Earles v. State, 47 Tex. Cr. App. 559, 85 S. W. 1. Horse Stealing-Character of Officer Unknown.-Where a sheriff, making an arrest without warrant, merely stated to the one whom he was attempting to arrest that he arrested him for horse stealing, and the character of the officer was not known to defendant, the arrest was illegal. Cortez v. State, 69 S. W. 536, 44 Tex. Cr. Attempted Correction of Former Warrant.-Code Cr. Proc. art. 229, authorizing a peace officer, on satisfactory proof and the representation of a credible person that a felony has been committed, and the offender is about to escape, so that there is no time to procure a warrant, to arrest the person accused without a warrant, does not authorize an officer to arrest without a warrant one charged with App. 169. robbery, where it appears that the robbery was committed a long time be- d. fore the arrest, and a warrant was procured under a wrong name, and when the officer discovered the mis- An officer may arrest one found untake, instead of procuring another der circumstances indicating that he warrant, he attempted to cure the de- has committed a felony, though in fact fect by erasing the name and insert- he has not done so. Sheehan v. Holing the proper one, without any show- comb, 1 White & W. Civ. Cas. Ct. ing that accused was about to escape. App. § 463. Newburn v. Durham, 10 Tex. Civ. App. 655, 32 S. W. 112. Carrying Weapons. It is the duty cf an officer to make an arrest of a person who, he is informed is carrying weapons, and he may do this without a warrant. Miller v. State, 32 Tex. Suspicion or Reasonable Grounds for Belief That Offense Has Been Committed. No one can arrest a person passing through a county, without a warrant, on suspicion that a felony has been committed. Lacy v. State, 7 Tex. Cr. App. 403, 413. A sheriff, sued for false imprisonment for arresting plaintiff without a |