Whitmore v. Allen , 33 Tex. 355 ( 1870 )

Walker, J.

The appellant has furnished the court with no brief in his case.

But the record furnishes abundant reasons for reversing the judgment.

A conspiracy may be proven as well by the acts of the conspirators, as by anything they may say, touching what they intend to do, or after the objeet of conspiracy has been carried out.

■ We as a eourt of justice can recognize no power in a government, at most only a de facto government, to authorize its agents to deprive any citizen of his liberty without due process of law.

Even the authorized agents of a de jure government, must confine themselves in their treatment of the citizen, to the scope of their legal authority, and the moment they transcend it they become liable for their acts in damages at the suit of the injured. Such damages when the outrage is gross, and the injury great to person, property or reputation, should be punitory, not merely compensatory.

The appellees appear to have acted as an independent organization of cavalry, under authority of the Confederate States. They kidnapped the appellant, and dragged him away from his family and home, put him first in prison in Tyler, Smith county, Texas, where he was locked up in an iron cage, and kept there seven days and nights ; taken thence to a place called Camp Ford, where he was kept in a stockade for a period of several months; was thence removed to a place in Cherokee county, called Camp Martin, and kept for several months longer, making a period of something near twelve months, during which time he was subjected to such insult, outrage and indignity, as would have rendered death preferable. Nor does any cause appear for all this maltreatment, nor are any charges even preferred against him in all this time.

The verdict is not merely against the weight of evidence, but is against all the legal evidence in the case.

The charge of the court, though mainly corred, was so given as to mislead the jury, if they had intended to, render an honest verdict.

But it is not correct law to> say that one who. has no just power or control over the liberty of another can authorize a third party to restrain and take away that liberty.

The judgment is reversed as to all the appellees, except Dr.

Francis, against whom there is no, evidence; as to him it is affirmed, and the case is- remanded to be proceeded with in accordance w ith this opinion-

Reversed and remanded.