Moseley v. State , 25 Tex. Ct. App. 515 ( 1888 )

Willson, Judge.

I. It was not error to refuse defendant’s application for a continuance. Sufficient diligence to secure the attendance at the trial of the absent witnesses was not shown. Furthermore, the allegations as to the facts expected to be proved by ,said witnesses, in so far as said alleged facts are material, are vague and indefinite, and are merely negations of the State’s testimony, which, if they had been in proof, could not properly have influenced the jury in its finding.

II. This conviction is under article 136 of the Penal Code, which reads: “If any sheriff, or other executive or peace officer, shall accept or agree to accept a bribe offered as mentioned in articles 133, 134 and 135, he shall receive the same punishment as is affixed to the offense of giving or offering a bribe in the particular case specified.” And article 133, applicable to this case, reads: “If any person shall bribe, or offer to bribe, any sheriff or other peace officer, to permit any prisoner in his custody to escape, he shall be punished by imprisonment in the penitentiary for a term not less than two nor more than five years.”

The facts of the case are, as shown by the evidence, that the defendant was constable of precinct number four of Johnson county. As such officer he arrested and had in his custody as a prisoner one John Gable. He arrested and held said prisoner without a warrant, upon the verbal and unsworn statement of one Thomas, charging said prisoner with the theft of a pair of shoes. L. F. Gable, the father of the prisoner, learning of the arrest and custody of his son, went to the defendant and proposed to release the prisoner from custody by giving bail for him. The defendant replied to this proposition that he would have to place the prisoner in jail, as the justice of the peace was absent, etc. He then proposed to the father, L. F. Gable, that if he would pay him (the defendant) twenty-five dollars, the prisoner should be released. This proposition was accepted by the father, and he paid the defendant said sum, whereupon the defendant released the prisoner from custody. The foregoing are the facts as testified to by L. F. Gable, and his testimony is strongly corroborated by other witnesses who testified on the trial, and there was no evidence adduced on the trial even tend - ing to question the truth of the facts above recited.

Opinion delivered June 6, 1888.

It is insisted by counsel for defendant that the arrest and custody of John Gable by the defendant was without authority of law, and that, therefore, it was no offense for the defendant to accept a bribe to release him. We do not so understand the law. It was by .virtue of his official authority that the defendant arrested and held John Gable. It matters not whether the arrest and custody were legal or illegal, the said Gable was a prisoner in the custody of the defendant, a peace officer, and was permitted by the defendant to escape, in consideration of money paid him to effect such escape. We are of the opinion that, in a prosecution for this offense, it is not permissible for the defendant to question the legality of his custody of the prisoner. Such an issue is irrelevant and immaterial. The moral obliquity of this offense is the same where the custody of the prisoner is illegal as where it is legal, and the injury to public justice is the same. (Florez v. The State, 11 Texas Ct. App., 102.) The law abhors even a tendency to official corruption, and it is official corruption that this statute is intended to punish, and not the illegal arrest and detention of a citizen. There are other provisions of the code which protect the citizen in his liberty. We hold that the facts of this case bring it within articles 133 and 136 of the Penal Code, and that there is no error in this conviction.

We have considered other questions presented in the record, but deem them unimportant and without merit.

The judgment is affirmed. Affirmed,