
    CHILDRESS v. STATE.
    (No. 10834.)
    Court of Criminal Appeals of Texas.
    April 13, 1927.
    Rehearing Denied May 18, 1927.
    1. Criminal law <&wkey;4 090 OR)- — Refusal of special charge in criminal ease will not be reviewed in absence of exception.
    In prosecution for assault with prohibited weapon, refusal of special charge will not be reviewed in absence of exception.
    On Motion for Rehearing.
    2. Assault and battery <&wkey;>96(3) — Charge that one with reasonable grounds to believe property stolen may arrest offender and seize property held proper in prosecution for assault with prohibited weapon (Code Cr. Proc. 1925, art. 325).
    In prosecution for assault with prohibited weapon, charge that person having reasonable grounds to believe property stolen may arrest offender and seize property held proper under Code Cr. Proc. 1925, art. 325, as against objection that it failed to instruct as to defendant’s right to defend against assault and that it told jury prosecuting witness had right to assault defendant.
    Commissioners’ Decision.
    Appeal from Criminal District Court, Travis .County; James R. Hamilton, Judge.
    Douglas Childress was convicted of assault with a prohibited weapon, and he appeals.
    Affirmed.
    Warren W. Moore and Shelton & Shelton, all of Austin, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   BETHEA, J.

The appellant was convicted of the offense of assault with a prohibited weapon, and his punishment assessed at two years’ confinement in the state penitentiary.

The record contains no bills of exception. There is but one special charge requested by appellant, and it was refused by the trial court. The refusal of said special charge was not excepted to and for this reason is not entitled to consideration by this court.

We have examined the learned trial judge’s charge and find that the same amply and correctly presented the law applicable to this case and is not subject to the objections and exceptions made to same. The indictment sufficiently charges the offense, and the evidence abundantly supports the verdict. Finding no errors in the record, the judgment of the trial court is affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

HAWKINS, J.

Daughdrill parked his automobile on the public street in the city of Austin and went away for a short time to transact some business. As he was returning to the car he noticed appellant apparently searching it.- Upon being asked to explain his conduct he said some one had told him there was whisky in the car and that he was looking for it. Daughdrill charged him with stealing things from the ear and took hold of his arm and insisted that appellant go with him. Appellant took some socks, handkerchiefs, and other things from his pocket, placed them on the seat and importuned Daughdrill to let him go. These articles had been ta'ken from a grip which was in the car. Appellant had also taken Daughdrill’s pistol out of the grip, and had it in his possession at the time, which fact was then unknown to Daughdrill. When the latter refused to pass the matter up, and insisted that appellant go with him, appellant broke loose, cursed him, drew and presented the pistol, and temporarily made his escape, taking the pistol with him. The court charged the jury that “any person having reasonable grounds to believe that property is stolen may arrest the offender and seize the property whether he is an officer or not.” Upon the trial appellant contended that Daughdrill’s act in taking hold of him and insisting that he accompany him was illegal and an assault upon appellant. He excepted to the charge of the court because it failed to instruct the' jury that appellant had a right to defend himself against an assault, because he claimed the court had in effect told the jury that the prosecuting witness had a right under the circumstances to commit an assault upon appellant. He renews these contentions in his motion for rehearing. We cannot construe the charge as being subject to the criticism urged. It was evidently based upon Article, 325, C. C. P., which reads:

“All persons have a right to prevent the consequences of theft by seizing any personal property which has been stolen, and bringing it, with the supposed offender, if he can be taken, before a magistrate for examination, or delivering the same to a peace officer for that purpose. To justify such seizure, there must, however, be reasonable ground to suppose the property to be stolen, and the seizure must be openly made and the proceedings had without delay.”

This provision of law has been in our statutes for many years and has received construction in English v. State, 34 Tex. Cr. R. 194, 30 S. W. 233; Porez v. State, 29 Tex. App. 618, 16 S. W. 750; Luera v. State, 12 Tex. App. 257. The charge complained of seems to have been applicable under the facts and justified by the authorities.

Believing the case to have been correctly decided, the motion for rehearing is overruled.

MORROW, P. J., absent. 
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