State v. Hedrick , 35 Tex. 485 ( 1872 )

Walker J.

This was an indictment against a sheriff for permitting a prisoner to escape. The court quashed the indictment for the reason set forth, that it does not, upon its face, show that the arrest of Long (the escaped prisoner), was legal, nor that he had been placed in the custody of the sheriff by legal authority.

It does appear to us that it would be difficult to find the same number of more utterly futile objections than are here thrown together. The sheriff is an officer of the law, a conservator of the peace, and may make arrests in certain cases without any other authority than that which the law imposes upon him. The indictment does declare that the sheriff had the prisoner Long in his' legal custody. It was not only unnecessary, but it would have been improper, and only could have been treated as surplusage, had the pleader averred the particulars of Long’s crime and arrest, trial, etc. The language of the indictment is that of Article 313, Penal Code, Paschal’s Digest, 1938, “Any sheriff, or other officer who has the legal custody of any person accused or convicted of a felony,” etc. But the indictment does set out that Long was accused of a theft of a pocket-book, and U. S. currency, of the value of $400, “the property of, and from the possession of, him the said J. W. Hedrick,” etc. As to the motion to dismiss the appeal in this case, it is overruled for the reason given in the case of The State v. Wall.

The judgment of the district court is reversed, and the cause remanded.

Reversed and remanded.