40 S.W. 488 | Tex. Crim. App. | 1897
Appellant was convicted for offering to bribe Joe Glazener to permit him (appellant), being a prisoner, to escape, and his punishment assessed at two years in the penitentiary; hence this appeal. The indictment alleges that "Glazener was a deputy constable of precinct number two of Tarrant county, Texas; a peace officer, and guard of the defendant." The statute under which this conviction was obtained reads (Art. 138, Penal Code, 1895): "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 *637 in the penitentiary for a term of not less than two nor more than five years." If Glazener was a peace officer, having the custody of the prisoner, he was subject to bribery. The indictment alleged that he was a peace officer. Now, to determine whether he was a peace officer or not, we must first ascertain who axe peace officers. Art. 43, Code Crim. Proc., 1895, defines peace officers. It reads as follows: "The following are peace officers: The sheriff and his deputies; constables; marshal, constable and policemen of any incorporated town or city, and any private person especially appointed to execute criminal process." It is not contended that Glazener was a sheriff, deputy sheriff, constable; marshal, constable, or policeman of any incorporated town or city. It appears from the record — and there is no conflict about the testimony, so far as this point is concerned — that the constable of Precinct No. 2 of Tarrant County had arrested appellant upon a charge of felony. Appellant desired to see his friends in order to make a bond. The constable placed him in charge of Glazener, a citizen. Glazener accompanied the prisoner to several places in the town of Arlington, in said precinct. While at the rear of a saloon, appellant proposed to give Glazener $50 to let him run. This offer was rejected by Glazener. Glazener being neither a sheriff, deputy sheriff, constable, marshal, constable, or policeman of an incorporated town, was he a private person specially appointed to execute criminal process? If so, he was the subject of bribery, because he was a peace officer. He was not executing any criminal process, the process having been executed by the constable. He was not appointed to execute any criminal process, as is provided for by Art. 266, Code Crim. Proc., 1895. He was not a guard, within contemplation of the Code, because the statute directs how guards shall be appointed. See, Art, 4898, Rev. Stat., He was simply a private citizen placed in charge of a prisoner without any authority of law known to us. He was not a peace officer, because he does not come within the statutory definition of such an officer. He was not, therefore, subject to bribery, under Art. 140 of the Penal Code. The indictment alleges that Glazener was a deputy constable. The constable testified that Glazener was neither sheriff, deputy sheriff, constable or deputy constable, nor policeman of any incorporated town, at the time he turned defendant over to him. The town of Arlington, situated in said Precinct No. 2, contains a population of not more than 1200 people. But concede that it contained over eight thousand inhabitants; Glazener was not appointed deputy constable. This is established beyond all question by the evidence of the constable. As before stated, the indictment charges that Glazener was a deputy constable, and interweaves in this connection that he was a peace officer and guard. We are at a loss to know whether he was a peace officer by virtue of being a deputy constable, or independent of his deputation as such. But this is altogether immaterial, because he is neither a constable nor deputy constable, nor was he a person deputized to serve criminal process, as before stated. We are of opinion that the conviction *638 is wrong; that appellant violated no law of this State in offering to bribe a citizen to let him escape. The statute having defined peace officers — making it an offense to bribe such officer — to convict, the party must be brought within the provisions of the statute. We are not now discussing the question of de facto officers, Glazener being neither an officer de juro or de facto. He could not be a de facto deputy constable, because the law does not permit the appointment of such deputy in a city containing a less population than 8000. See, Art. 4908, Rev. Stat., 1895. The judgment is reversed and the cause remanded.
Reversed and Remanded.
