
    Kenneth M. Masden v. State
    No. 25588.
    December 19, 1951.
    
      Hon. David McGee, Judge Presiding.
    
      Raymond Wilson, Fort Worth, for appellant.
    
      George P. Blackburn, State’s Attorney, Austin, for the state.
   MORRISON, Judge.

The offense is aggravated assault upon the person of a peace officer; the punishment, 30 days in jail and a fine of $50.00.

Two police officers of the city of Fort Worth, responding to a call in the early morning hours, met two women who reported that an assault had been committed on one of them by a man who lived in Room 9 of á certain hotel.

The officers went immediately to the hotel and to Room 9 therein. Their knocks upon the door were not answered, and they finally got a bell boy to let them in the room. Inside, they found appellant undressed and in bed. In resisting an arrest by the officers, appellant planted a blow in the officer’s groin with his knee, which assault became the basis for this prosecution.

It may be seen from the testimony of the officers that they acted upon the information that a misdemeanor had been committed, and upon this and nothing more they invaded the home of appellant without a warrant and arrested him. This was an illegal arrest and justified appellant in attempting to extricate himself from such custody. There is no question of excessive force having been used by appellant.

The officers did not bring the arrest of appellant within the terms of Article 212, Code of Criminal Procedure, or within the terms of the city ordinance of the city of Fort Worth introduced in evidence, both of which authorize arrests without a warrant in certain cases but not under the facts of the case at bar. See also Rodriguez v. State, 146 Tex. Cr. R. 206, 172 S. W. (2d) 502, and cases cited there.

Appellant’s challenge to the sufficiency of the evidence must be sustained.

Judgment of the trial court is reversed and the cause remanded.  