| Tex. | Jul 1, 1878
The first ground of complaint against the charge, is that it “ assumed certain facts as proved, without leaving the finding of the same to the consideration of the jury.” The specifications under this head are not to that part of the charge where the jury are told, that if defendant, being then sheriff, did certain acts, then to find for plaintiff, but refer to subsequent portions of the charge on the subject of the measure of damages. Of -course, the question of the amount of damages could only arise after it had been decided that there was an illegal arrest, and therefore some damage. The charge on the mode of estimating damages assumes that the jury, in the course of their investigation, have reached that question, but does not so assume the illegality of the arrest as to interfere with the right of the jury to pass upon that issue.
Another objection taken to the charge, is that it withdrew from the consideration ’ of the jury the motive in making the arrest. An examination of that part of the charge first objected to on this ground, shows that the proposition laid down, is that it was no defense that the sheriff supposed he had a capias. This is unquestionably the law. If the defendant wished the jury further instructed, that they might, in fixing the amount of damages, consider whether the sheriff acted under the mistaken belief that .he had a capias, he should have asked a charge to that effect. He cannot avail himself here of the failure to give an instruction which might have been appropriate, but which he did not, at the right time, suggest to the court.
A second specification, under the same objection, is that the court charged as follows: “Neither is drunkenness of the officer any excuse, but may be received by the jury as an aggravationproceeding: “ but the jury will consider the
It is to be observed that the defendant, on the trial, asked no instructions. He comes into this court relying on legal errors in the charge as given. Examining this charge critically, there is in it no error of law. Drunkenness in an officer is certainly no legal defense for making an illegal arrest, and it may be, if the jury think proper, even regarded as an aggravation. The jury are not told that the drunkenness of the officer is, as a matter of law, an aggravation of the illegal act, but that they may so receive it; and in the same sentence are instructed to consider the whole facts. If the defendant regarded this as an imperfect presentation of the law, and wished the jury instructed, that, in considering his motives and the amount of punitory damages, they were at liberty to consider Ms intoxication in connection with other facts, he should have asked such a charge. As given, the charge seems to be strictly the law; and if it be open to criticism, as incomplete, that is no ground for reversal.
In a supplemental brief, referring to the cases in this court on the subject of exemplary damages, appellant denies that such damages should be allowed for false imprisonment, that being an indictable offense. We regard this question as settled by the decisions to which counsel himself refers; especially since'the principle has been recognized and applied in the Constitution of 1869 and 1870, and the present Constitution. (Const. 1869, art. 12, sec. 30,-2 Paschal’s Dig., 1129; Const., art. 16, sec. 26.)
The judgment is affirmed.
Affirmed.