
    HARPER v. STATE.
    (No. 5150.)
    (Court of Criminal Appeals of Texas.
    Oct. 30, 1918.
    On Motion for Rehearing, Dec. 4, 1918.)
    1. Assault and Battery <S=>92 — Aggravated Assault — Serious Bodily Injury — Evidence.
    In prosecution of town marshal for aggravated assault, evidence held sufficient to sustain a finding that a “serious bodily injury” was inflicted.
    2. AsSault and Battery <§=364 — Officers Making Arrest — Use oe Force.
    An officer making a lawful arrest may use reasonable means necessary, taking care that the force used is commensurate with the necessity, under Pen. Code 1911, art. 1014, subd. 5.
    3. Arrest <§=>63(3) — Necessity for Warrant.
    An officer may make an arrest without a warrant, where a felony or an offense against the public peace is committed in his presence, under Code Cr. Proc. 1911, arts. 25t-260.
    4. Arrest <§=>63(3) — Necessity jtor Warrant —Town Marshals.
    A town marshal may make an arrest without a warrant for a felony or an offense against the public peace committed in his presence, where the ordinances of the city confer such authority, under Code Cr. Proc. 1911, art. 261.
    5. Assault and Battery <§=>92 — Aggravated Assault by Officer — Forcible Resistance-Evidence.
    In a prosecution of a town marshal for aggravated assault and infliction of serious bodily injury, evidence held to sustain a finding that the injured party was not making a forcible resistance to arrest.
    6. Criminal Law ©=>1170(1) — Harmless Error-Exclusion or Evidence.
    In a prosecution of a town marshal for aggravated assault while making an arrest for violation of a traffic ordinance, there was no reversible error in rejecting evidence that the injured party had violated a traffic ordinance on a previous occasion; issue being whether a forcible resistance was being made.
    On Motion for Rehearing.
    7. Criminal Law ©=>101(2) — Conviction in County Court — Necessity for Showing Jurisdiction.
    Where a prosecution for a misdemeanor was begun by an indictment returned to the district court, which did not have jurisdiction, a conviction in county court cannot be sustained where the record does not show that the cause was transferred to the county court by order of the district court as required by Vernon’s Ann. Code Cr. Proc. 1916, arts. 4S3, 485.
    Appeal from Garza County Court; A. R. Anderson, Judge.
    A. E. Harper was convicted of aggravated assault, and he appeals.
    Reversed and remanded.
    W. P. Kelly, of Post, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was assessed a fine of $25 on conviction for aggravated assault under an allegation that, he inflicted serious bodily injury upon J. W. Lovelady.

The appellant struck the injured party with a policeman’s “billy,” an instrument about 12 inches long, made of leather wrapped around shot or metal of some kind. Erom the state’s evidence it appears that appellant was a man about 30 years old, weighing 200 pounds, and Lovelady was about 63 years of age and was standing at a water cooler with a glass of water in his hand about to take a drink of water when he was struck the blows complained of. Lovelady said that—

“The blows were on the left side of my head, and he knocked the life out of me, and cut the skin to the skull bone in two places. The other blow was sorter across my neck and did not break the skin. * * * I was laid up a couple of weeks, and suffered from the cuts on my head a great deal. Could not wear my hat for about two weeks.”

A doctor described the wounds as apparently having been made with some blunt instrument cutting through the flesh to the skull bone. “The injuries were painful, but not necessarily serious. I make this answer in view of the fact that I know how the patient turned out afterwards.”

We think the evidence was sufficient to sustain the finding of the jury that the injured party received a “serious bodily injury.” Housley v. State, 55 Tex. Cr. R. 372, 116 S. W. 816; Bruce v. State, 41 Tex. Cr. R. 27, 51 S. W. 954.

While there is no bill of exceptions properly preserving it, we find that appellant, requested the court to instruct the jury that the burden was upon the state to prove-an intent to injure. The charge was also objected to because it does not put this burden upon the state;-appellant in his brief insisting that article 1009 of the Penal Code, which provides that when an injury is caused by violence to the person the intent to injure is presumed, is without application for the reason that appellant was an officer engaged in making an arrest and the injury inflicted in the exercise of this lawful purpose would not create the presumption named. See subdivision 5-, art. 1014, Penal Code. It is true that in making an arrest an officer may use reasonable means necessary, taking care that the force used is commensurate with the necessity. Skidmore v. State, 43 Tex. 93; Michie’s Digest, Texas Crim. Laws, vol. 1, p. 481, and cases cited. The law throws this protection around him, however, only while he is making a lawful arrest. Carter v. State, 30 Tex. App. 551, 17 S. W. 1102, 28 Am. St. Rep. 944; Rasberry v. State, 1 Tex. App. 664; English v. State, 34 Tex. Cr. R. 190, 30 S. W. 233. He may make an arrest without a warrant where a felony or an offense against the public peace is committed in his presence. Articles 254r-260, C. C. P. This authority may be exercised by a town marshal where the ordinances of the city confer such authority upon him. 'Article 261, C. C. P. Such ordinance is not shown. It seems quite doubtful whether these provisions would authorize the appellant, the town marshal of Post City, to arrest the injured party without a warrant for driving on the wrong side of a guide post. Mundine v. State, 37 Tex. Cr. R. 5, 38 S. W. 619. The record shows, however, that the court instructed the jury that appellant would not be culpable unless he used more force than was necessary in arresting- Lovelady. Appellant claimed to have acted in self-defense on apparent danger. This issue was also submitted, and the decision of the jury against him, is supported by the testimony of á number of eyewitnesses to the effect that the injured party was making no forcible resistance to the arrest, but was making a verbal protest; he having gone into a restaurant to eat his dinner and stated that he would go to the police station as soon as he had finished.

As the record is presented, we think there was no reversible error in rejecting the proffered testimony that the injured party had violated a traffic ordinance on some previous occasion.

The judgment is affirmed.

On Motion for Rehearing.

Our attention is called to the fact that this prosecution for a misdemeanor is begun by an indictment returned to the district court of Garza county. That court being without jurisdiction to try the cause, the statute required that it should, by order of court, be transferred to a court having jurisdiction. Vernon’s O. O. P. art. 483.

The record before us contains nó order of the district court transferring the case to the county court, and, the county court being without power to receive an indictment from the grand jury, there ⅛ a failure in the record to show facts necessary to disclose the jurisdiction of the county court to try the case. Richardson v. State, 57 Tex. Cr. R. 285, 122 S. W. 560; Harris v. State, 57 Tex. Cr. R. 84, 121 S. W. 1116; C. C. P. art. 485.

The motion for rehearing is granted, the af-firmance set aside, and the judgment is reversed and remanded. 
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