Hurt, Judge.
Appellant, Young Pierce, was prosecuted to conviction for wilfully opposing and resisting an officer in attempting to execute a lawful warrant for the arrest of Jeff Pierce, his brother. It appears from the indictment that Jeff Pierce was charged with theft of a horse,— a felony. The resistance is charged to have been made by the use of arms, to wit, shot-guns and pistols.
Appellant moved to quash the indictment because it failed to allege definitely and affirmatively that Jeff Pierce was accused or charged with a felony. Upon this matter the indictment alleges that one W. T. Blythe, being then and there a justice of the peace, as such justice “ then and there, on the 3d day of June, 1883, issued a certain warrant directed to the sheriff or any constable of Hopkins county, and which said warrant was in words and figures following, that is to say: 6 The State of Texas, Hopkins county. To the sheriff or any constable of Hopkins county, greeting. You are hereby commanded to arrest the body of Jeff Pierce, and him safely keep, so that you have him at my office in Sulphur Springs, instanter, then and there to answer the State of Texas on a charge of theft of a horse, founded on the affidavit of W„ L. Johnson,’ ” etc.
Article 224, Penal Code, provides that a warrant legally issued, an indictment or an information, or a complaint to a magistrate, are all examples of accusations, and that a person proceeded against by either of these is said to be accused.
How, while it is true that a warrant which sets out the accusation, if copied in and made a part of the indictment, as in this case, may be a sufficient affirmative allegation or averment of the fact that Jeff Pierce was charged with felony, the writer is of the opinion that, for it to be so, the science and logic of criminal pleading require that the indictment must allege facts which clearly show that the warrant issued legally.
When may a magistrate issue warrants of arrest? This we learn from article 234, Code Criminal Procedure. “ Magistrates may issue warrants of arrest in the following cases:
“ 1st. In all cases in which they are by law authorized to order verbally the arrest of an offender.”
“ 2d. When any person shall make oath before such magistrate that another has committed some offense against the laws of the State.”
“ 3d. In all cases named in this Code where they are specially authorized to issue such warrants.”
Art. 235. “The affidavit made before the magistrate, which charges the commission of an offense, is called a complaint.” And by article 236 the complaint, to justify the issuance of the warrant of arrest, without regard to form, “ must state the name of the accused, if known, and if not known must give some reasonably definite description of him.”
2. “It must state that the accused has committed some offense against the laws of the State, naming the offense, or that the affiant has good reason to believe, and does believe, that the accused has. committed such offense.”
3. “ It must state the time and place of the commission of the offense, as definitely as can be done by the affiant.”
4. “ It must be in writing, and signed by the affiant, if he is able to write his name; otherwise he may place his mark at the foot of the complaint.”
It is clear upon principle, to the writer, that before the warrant can be legally issued the facts must exist which would authorize á verbal arrest; or the facts must present a case in which the magistrate is specially authorized to issue the warrant; or there must be made by some person, before a magistrate, a complaint charging the commission of an offense, said complaint containing the requisites required in article 236, Code Criminal Procedure. And if therein existed facts which authorized a verbal arrest, or which presented a case in which the magistrate was specially authorized to issue the warrant of arrest, the indictment must set out these facts. Why must this be done? Because by the very terms of the article of the Code (219) under which appellant stands convicted, the warrant must be a lawful warrant. This does not mean merely that the warrant must be in lawful form, but that it must have been lawfully issued.
But it may be urged by the State that the indictment alleges that a complaint was made by W. L. Johnson, and that said complaint was, and appears from the indictment, sufficient authority for the lawful issuance of the warrant of arrest. Upon this subject, what is the allegation in the indictment? All bearing upon this subject is contained in the warrant, and is as follows: “Then and there to answer the State of Texas on a charge of theft of a horse, founded on the affidavit of W. L. Johnson.” Before .whom did Johnson make affidavit or complaint? Who was charged in said complaint with the commission of an offense against the laws of the State, and of what offense was he charged by said complaint? Was said complaint in substance such as authoi’ized the magistrate to issue the warrant of arrest? To answer these questions favorably to the sufficiency of the indictment, we are driven to inferences and presumptions not to be tolerated in indictments; it being a well settled rule that when the guilt of a citizen depends upon the existence of facts, the facts must be alleged directly and affirmatively, and not be left to inferences.
I have given my views upon the question briefly, from which would result the conclusion that the indictment, upon the ground above indicated, is bad; but, testing the indictment by the great weight of authority, we must hold it, so far as this objection is concerned, sufficient.
Appellant objects to the charge of the court because there is no mention of arms contained therein. If the resistance is made without arms, in case of felony, the punishment is not less than two nor more than five years. If with arms, not less than two nor more than seven years. In this case evidently arms were used, and the learned judge could have very properly charged the jury that, if the resistance was made by the use of arms, the punishment should not be less than two nor more than seven years. This, however, was not done, his honor below preferring the milder punishment, and hence the jury were confined by the charge to two and not less than five years’ punishment. Of this, certainly, appellant cannot complain.
Before leaving the charge of the court, we desire to observe in relation thereto that, as applicable to the charge contained in the indictment, and the facts — each and every phase of the facts — this charge is an admirable statement of the law. It is clear, correct, concise and easy of comprehension.
Is the verdict sustained by the evidence? Becton, the constable, testified that when he went to the house, Jeff Pierce and John Pierce were on the gallery, and that in a moment Young Pierce (appellant) came out on the gallery. They all had guns. He told Jeff Pierce that would never do; that he came to arrest him on a charge of theft of a horse, and had a warrant for him. That Jeff replied, among other things, that he would never go to jail again; that he would die first. During this conversation they were standing on the gallery with their guns. That appellant left the gallery for the horse lot to catch a horse, but carried his gun with him. As he passed Gregg, he was asked what kind of a gun that was. Ho replied, “ Look down the muzzle and see.” Gregg then asked him howfar it would shoot. He replied, “ A thousand or fifteen hundred yards.” After this, Jeff, John and appellant got on their horses and rode off down the lane.
This evidence discloses that, in the presence of appellant, Jeff Pierce was informed by the constable that he was charged with theft of a horse; and that he, the constable, had a warrant for his arrest for this offense; and that it was his intention to execute the warrant by arresting him. That Jeff refused to be arrested, and was determined not to be arrested, being furnished with deadly weapons to prevent the same. And that during all that occurred between the constable and Jeff Pierce, appellant was present and armed with a gun. It is true that he took no part in the conversation between the constable and Jeff, and it may also be true that his gun was not loaded; still it does not follow that his acts, under the surrounding circumstances, were not intended as aid to his brother in resisting the arrest. They certainly were calculated to encourage him in his resistance, and were, no doubt, calculated to induce the constable to believe that, if he attempted the arrest of Jeff, he would certainly have appellant, as well as Jeff, to overpower before he could accomplish the arrest of Jeff. That appellant was present, armed with a gun for the purpose of giving aid and encouragement to his brother, or overawing the constable, is strongly corroborated by the fact that he carried the gun with him to the lot, and that they all left together, etc.
We have given the evidence a most thorough examination, and do not feel that the verdict of the jury should be disturbed, espe- 1 cially when viewed in the light of the charge of the court. For it was a very clear statement of the law, not only to the case as a whole, but especially so with relation to every phase of the case which tended to the innocence, or called in question the guilt of the appellant.
We find no error in the judgment, and it is affirmed.
Affirmed.
[Opinion delivered November 29, 1884.]