Moseley v. StateMoseley v. State
I. It was not error to refuse defendant’s application for a continuance. Sufficient diligence to secure the attendance at the trial of thе absent witnesses was not shown. Furthermore, the allegations as to the facts еxpected 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 аccept or agree to accept a bribe offered as mеntioned 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 shаll bribe, or offer to bribe, any sheriff or other peace officer, to рermit any prisoner in his custody to escape, he shall be punished by imprisonmеnt in the penitentiary for a term not less than two nor more than five years.”
The fаcts 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 arrestеd and held said prisoner without a warrant, upon the verbal and unsworn statement of
It is insisted by counsel for defendant that the arrest and custody of Jоhn 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 defendаnt, 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 offensе, it is not permissible for the defendant to question the legality of his custody of the рrisoner. Such an issue is irrelevant and immaterial. The moral obliquity of this offense is thе 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 abhоrs 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 а citizen. There are other provisions of the code which proteсt 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,