State v. Currie

| Tex. | Jul 1, 1872

Walker, J.

This is an appeal taken by the State to 'the judgment of the District Court of Houston county, quashing an indictment in which the appellee is charged ¡as the county attorney with receiving a bribe. The indictment charges that E. Currie, on the thirtieth day of December, in the year of our Lord one thousand eight hundred and seventy, was acting as county attorney for the county of Houston, in the State of Texas, duly ■elected and qualified as said county attorney. On the 'trial the appellee excepted to the sufficiency of the "indictment, and filed the following special exceptions, .to-wit:

1. Because the said bill of indictment nowhere charges this defendant to have held and been in the exercise of the duties of any legislative, executive, or judicial office, under the State of Texas.

2. Because it does not appear from said bill of indictment that the office of county attorney was a legislative, executive, or judicial office.

3. Because the said bill of indictment nowhere charges .any offense against the general laws of this State.

4. Because said indictment is too vague and uncertain to hold this defendant to plead.

5. Because of other errors and defects apparent on the face of the said bill of indictment.

Upon some one or all of these exceptions the indictment was quashed. The crime for which the appellee is indicted, as well as the punishment affixed by law, are ■defined in Article 1870, Paschal’s Digest. Article 1871 enumerates who are executive, legislative and judicial officers ; county attorneys are not named in Article 1871, but district attorneys are. The act to which these articles belong was passed on the twenty-eighth of August, 1856, at a time when, the office of county attorney was not yet known to our judicial system. The act authorizing the appointment of county attorneys was passed on the twenty-fifth of October, 1866, and is entitled “An act to organize the county courts, and to define the powers and jurisdiction thereof.” We have little doubt had the office of county attorney existed when the act of August 28, 1856, was passed, county attorneys would have been enumerated and classed as judicial officers ; and the fact that they are not included in Article 1871 makes them none the less judicial officers. By the second article of the Constitution of 1869, the powers of the government are divided into executive, legislative and judicial, and this is but the maxim of all republican States. Upon county attorneys, under the law of 1866, in their respective counties devolve the duties and responsibilities of district attorneys. By Section 38 of the act of October 25, 1866, it was made the duty of county attorneys in their respective counties to represent the State in all cases wherein she might be a party, in the county court and before committing magistrates, in the absence of the district attorney.

Taking the law, then, as we find it, we are led to the conclusion that the averment in the indictment, that the appellee was duly elected and qualified as a county attorney, is a sufficient averment that he was a judicial officer. It is also our opinion that the indictment in this case sufficiently charges an offense against the penal laws of this State. The judgment of the district court is accordingly reversed, and the cause remanded, to be proceeded with in accordance with this opinion.

Reversed and remanded.