Jones v. State (294 S.W.2d 828, 1956)

MORRISON, Presiding Judge.

The offense is driving while intoxicated; the punishment, 30 days, in jail and a- fine of $50.

The sole question presented for review is the legality of the arrest of the appellant and the admissibility of the evidence of those who observed him following the arrest.

The arrest was' made by an agent of the Treasury Department- of the United States Government. He was not acting in his official capacity or in connection with his employment. He had no warrant authorizing appellant’s arrest.

Attracted by the manner in which appellant was driving his automobile, the arresting party decided to arrest him, in the belief that he was in no condition to drive the car. All thé evidence showing appellant’s intoxication at the time of the arrest was the resiilt of and by reason of the arrest.

It is insisted that the arrest was illegal.

This identical contention was overruled in McEathron v. State, No. 27, 739, Tex.Cr.App., 294 S.W.2d 822.

Finding no reversible error, the judgment of the trial court is affirmed.

DAVIDSON, Judge

(dissenting).

The arresting party was not a peace officer under the laws of this state. His act, then, in- effecting -appellant’s arrest was that of -a private citizen. ;

In my opinion, thé arrest of appellant was without authority of law and in open violation of the constitutional guarantee, both state and federal, prohibiting unlawful arrests.

What I said in the dissenting opinion in McEathron v. State, No. 27,739, Tex.Cr.App., 294 S.W.2d 822, applies here.

I respectfully dissent to the affirmance of this case.