
    Ozell Brooks v. State
    No. 27,274.
    February 9, 1955
    State’s Motion for Rehearing Denied (Without Written Opinion) March 30, 1955
    
      
      Leon Lusk, Houston, for appellant.
    
      Dam, Walton, District Attorney, Eugene Brady, Assistant District Attorney, Houston, and Wesley Dice, State’s Attorney, Austin, for the state.
   MORRISON, Presiding Judge.,

The offense is assault with intent to murder; the punishment, 15 years.

Two officers of the city of Houston, operating in plain clothes in an unmarked automobile, observed a Pontiac automobile traveling at a fast rate of speed. They overtook the Pontiac and found it to contain the appellant and two women, and informed them that they were police officers. They then asked for appellant’s identification, and the appellant asked, “What are you going to do with me — what are you going to do now?” The officer testified that, even though they intended only to give the appellant a ticket for speeding, they did not tell him so and, to the contrary, told him that they were going to put him in jail. It was after the appellant was so informed that he committed the assault which constitutes the basis for his prosecution.

The trial court refused, over the appellant’s objection, to charge the jury upon the duty of a peace officer arresting a citizen for the offense of speeding to give such person a ticket or summons to court for such offense and not to further arrest him or put him in jail, unless he refuses to receive such summons and signs a promise to appear in response thereto, as provided by law. Such is the holding of this court in Montgomery v. State, 145 Texas Cr. Rep. 606, 170 S.W. 2d 750. The jury was entitled to an explanation of the law relating to the right of the officers and the limitation placed upon them in connection with the arrest, such being relevant on the issue of malice, if not upon the intent to kill; and the trial court fell into error in refusing such a charge.

The judgment is reversed and the cause remanded.  