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WRITS OF ERROR

WERE DENIED OR DISMISSED BY THE

SUPREME COURT OF

OF TEXAS

IN THE FOLLOWING CASES IN THE

COURT OF CIVIL APPEALS

PRIOR TO APRIL 19, 1911

Cases in which writs of error have been denied or dismissed, without the rendition of a written opinion since the publication of the original opinions in previous volumes of this Reporter.]

WRITS OF ERROR DENIED.

SIXTH DISTRICT.

Chicago, R. I. & P. R. Co. v. Reames, 132 S. FIRST DISTRICT.

W. 977. Bowen v. Hart Land & Imp. Co., 132 S. W. Cumby, Mercantile & Lumber Co. v. Long, 133 835.

S. W. 1072. Burkitt v. Wynne, 132 S. W. 816.

First Nat. Bank of Chicago v. Mineral Wells & Irion v. Yell, 132 S. W. 69.

L. P. St. R. Co., 133 S. W. 1039.

Nat. Union Fire Ins. Co. v. Dorroh, 133 S. SECOND DISTRICT.

W. 475.

St. Louis S. W. R. Co. of Texas v. Cambron, Dalhart Real Estate Agency v. Le Master, 132 131 S. W. 1130. S. W. 860.

Stephens et al. v. Turley, 131 S. W. 818. Pratt v. Interstate Sav. & Trust Co., 133 S. W. Walcott v. Carpenter, 132 S. W. 981.

921. Supreme Lodge United Benevolent Ass'n v. Lawson, 133 S. W. 907.

WRITS OF ERROR DISMISSED.
THIRD DISTRICT.
Gulf, C. & S. F. R. Co. v. Brooks, 132 S. W.95.

THIRD DISTRICT.
Missouri, K. & T. R. Co. of Texas v. Butts, 132
S. W. 88.

Melde v. Jelde, 132 S. W. 980.

Yeager v. Scott & Sanford, 132 S. W. 83. FOURTH DISTRICT. Galveston, H. & S. A. R. C. v. Lobit, 132 S. W.

FOURTH DISTRICT. 102. Houston & T. C. R. Co. v. Barden, 132 S. W. Houston & T. C. R. Co. v. Anderson, 132 S.

83. Missouri, K. & T. R. Co. of Texas v. Rothen

W. 377.
berg, 131 S. W. 1157.
Smith v. Norton, 133 S. W. 733.

SIXTH DISTRICT.
FIFTH DISTRICT.

Houston Ice & Brewing Co. v. Sneed, 132 S.

W. 356. Matson et al. v. Jarvis, 133 S. W. 941.

Kolp v. Shrader, 131 S. W. 800.

See End of Index for Tables of Southwestern Cases in State Reports 135 S.W.

(xv)

THE

SOUTHWESTERN REPORTER

VOLUME 135

| fore whom accused was arraigned was "J. S. STATE Y. SHIRLEY.

K.," while the evidence showed that his name (Supreme Court of Missouri, Division No. 2. especially when supplemented by a description

was "J. L. K.," constituted so slight a variance, March 7, 1911.)

of the justice's office that it could not have 1. ESCAPE (8 9*)–PROSECUTION-INFORMATION misled accused to his prejudice, and hence was -SUFFICIENCY.

immaterial; Rev. St. 1909, § 5114, providing Since one arrested for a misdemeanor by a that any variance in the Christian or surname constable upon a warrant remained in his cus- of any person shall not be ground for acquittal, tody until released under recognizance, dig- unless the trial court find that it was material charged by order of a justice, or delivered to and prejudicial to accused. the county jailer, and the constable had power (Ed. Note.--For other cases, see Indictment to take the prisoner to the county jail without and Information, Cent. Dig. $8 551-556; Dec. process commanding him to do so, the informa- | Dig. $ 180.*) tion charging such prisoner with breaking from 16. CRIMINAL LAW (8 409*)-EVIDENCE-BEST the custody of the constable contrary to Rev. St.

EVIDENCE 1909, $4382, was sufficient without alleging

In a prosecution for escaping from the that the commitment issued by the justice was custody of a constable after arraignment but directed to the constable, as it would have been before trial, it was error to admit parol evivalid without reciting the commitment.

dence of the filing and contents of the informa(Ed. Note.-For other cases, see Escape, Cent. tion and warrant under which accused was arDig. &$ 9-16; Dec. Dig. $ 9.*]

rested, and of the docket entries made by the 2. ARREST ($ 70*)--POWERS OF CONSTABLE, tice's possession at his home, and not lost, since

justice, where such documents were in the jusDISPOSITION OF PRISONER,

While a constable is not expressly author- the original information, the warrant, and the ized by the statute to take a prisoner arrested entries relating to the case, or, pursuant to Rev.

return thereon, and the justice's docket showing under warrant to a county jail without a pro: St. 1909, $$ 6333, 6334, 6335, copies of the cess commanding him to do so, he is given such information, warrant, and docket entries, duly power by tbe several statutes when construed certified by the justice, or other lawful custogether.

todian thereof, should have been introduced in [Ed. Note.-For other cases, see Arrest, Cent. evidence. Dig. $$ 171-173; Dec. Dig. $ 70.*]

(Ed. Note.--For other cases, see Criminal 3. CRIMINAL LAW ($ 241*) – COMMITMENT- | Law, Cent. Dig. $ 879; Dec. Dig. $ 400.* ] REQUISITES.

7. CRIMINAL LAW (8 673*)-INSTRUCTIONS-Since the statute does not require a justice EFFECT OF DOCUMENTARY EVIDENCE. of the peace to designate the constable in a Since the court should instruct as to the commitment, he need not be named therein, but legal effect of documentary evidence in a prosemust take notice thereof and deliver the pris- cution for escaping from custody before trial, oner and commitment to the county jailer. the court should have charged that the warrant

[Ed. Note.-For other cases, see Criminal under which accused was arrested gave the conLaw, Cent. Dig. $ 301; Dec. Dig. 241.*] stable lawful custody of accused and authority

to take him to the county jail for failure to 4. ESCAPE ($ 2*)-CUSTODY OF OFFICER.

make a recognizance. Accused was arrested and arraigned for committing a misdemeanor in T. county, and,

[Ed. Note.-For other cases, see Criminal while he was with the constable searching for Law, Cent. Dig. $81872–1876; Dec. Dig. 8 persons to sign a recognizance for his appear

673.*] ance, they passed into another county, when the constable permitted accused to go into a house

Appeal from Circuit Court, Taney Counacross the line in T. county, and while there ty; John T. Moore, Judge. accused escaped. Held, in a prosecution for Ben Shirley was convicted of breaking cusbreaking from custody, that the constable's cus. tody of accused was not terminated by permit tody and escaping before conviction, and he ting him to go into the other county, as the appeals. Reversed and remanded. permission to go into the house in T. county carried the custody there, so that the escape

Defendant was convicted of breaking custook place in that county wbile accused was in tody and escaping before conviction, as procustody.

hibited by section 4382, Rev. St. 199, and (Ed. Note.-For other cases, see Escape, Cent. from a judgment fixing his punishment at Dig. & 3; Dec. Dig. $ 2.*] 6. INDICTMENT AND INFORMATION ($ 180*)

two years in the penitentiary appeals to INFORJATION_VARIANCE-INITIALS.

this court. That the information in a prosecution for

The defendant was arrested upon an inescape charged that the name of the justice be- formation and warrant charging him with For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

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selling intoxicating liquors without a license, ed to the said Dan Johnson, then being conin Taney county. He was arraigned before stable of said Beaver township, aforesaid, one J. L. Keener, a justice of the peace of and then and there having the said Ben that county, and, pleading not guilty and Shirley in his custody for the cause aforefailing to enter into a recognizance for his said, and the said Dan Johnson was comappearance on the day to which the case was manded and required by the said J. L. Keecontinued, the justice issued a con niti ent ner, the justice as aforesaid, to convey the commanding the jailer of Taney county to said Ben Shirley forthwith to said jail and receive the defendant and confine him until to deliver the said Ben Shirley to the jailer he should by due course of law be dis- of said county jail, together with the warcharged. This commitment was delivered to rant aforesaid,

and, whilst the one Dan Johnson, the constable for Bea ver said Ben Shirley continued in said custody township, in Taney county, who at that time and before he was delivered by the said Dan held the defendant in custody upon the orig- Johnson to the jailer and keeper of the inal warrant under which he had been ar: county jail of said county, the said custody rested. This constable, at the request of of the said Dan Johnson unlawfully and fethe defendant, started out to find parties loniously did break, and out of the custody of who would sign a recognizance for his ap- the said Dan Johnson unlawfully and felonipearance on the day fixed for the trial, and, ously did escape and go at large whithersowhen they had passed into the edge of Ozark ever he would, against the peace and digcounty, the constable gave the defendant per- nity of the state.” The evidence indicated mission to go into a house which stood across that the constable, Johnson, had arrested the the line in Taney county, and, while in or defendant and brought him before the jus. near this house, the defendant escaped. tice on warrant. Defendant's attorney

The following errors are assigned by de- earnestly contends that the foregoing inforfendant's counsel : That the information mation does not charge the commission of does not charge that defendant was in the any crime, in this: that it omits to recite custody of the constable at the time of the that the commitment was directed to the conalleged escape; that the commitment, being stable, and therefore contains no averment directed only to the jailer, did not confer that the defendant was in the custody of custody of the defendant upon the con- the constable at the time of the alleged esstable; that, if the constable ever had any cape. The information contains many unsuch custody, it was terminated by permit- necessary and some repuguant allegations, ting the defendant to leave his immediate but these we are required to treat as surpresence, and that, if there was any es- plusage. Section 5115, Rev. St. 1909. It cape or breaking of custody, it occurred in would have been valid without reciting the Ozark county, and not in Taney, in which commitment. The law does not make the latter county this prosecution was institut- justice of the peace a jailer, and, if defended; that there is a fatal variance between ant was arrested by the constable upon a the information and the evidence; that the warrant regularly issued

criminal court admitted improper evidence on the charge, he remained in the custody of such part of the state; and that the instructions constable until released under recognizance, did not correctly declare the law.

discharged by order of the justice, or deR. C. Ford, for appellant. E. W. Major, livered to the jailer of the county. While Atty. Gen., and John M. Dawson, Asst. Atty. the constable is not by express terms auGen., for the State.

thorized to take a prisoner to the county jail

without a process commanding him so to do. BROWN, J. (after stating the facts as when the various provisions of the law are above). The information charges that Dan read together, we think he is clearly invested Johnson, constable of Beaver township, in with that power.

The constable is but an Taney county, brought the defendant before an of the justice's court through which its one J. S. Keener, a justice of the peace of processes and orders are executed. When a that township, on December 18, 1909, where prisoner is in the custody of the constable he was charged in an information filed by and such prisoner secures a change of venue, the prosecuting attorney with the crime of the constable must take notice of that fact selling intoxicating liquors without a license; and produce the defendant before the justhat the defendant's trial was set for Janu- tice to whom the change of venue is awardary - 1910, and upon his failure to en-ed, and for that purpose no commitment or ter into a recognizance for his appearance additional process is required. Section 4984, on the day of trial said justice issued a com- Rev. St. 1909. As the law does not require mitment, commanding the jailer of Taney the justice to designate the constable in a county to receive and safely keep the de- commitment, it follows that he need not be fendant until by due course of law he should named in such commitment, but must take be discharged. The information further notice of the issuance thereof and deliver charges that: “Said warrant afterwards, to the prisoner and commitment to the county wit, on the day and year aforesaid at the jailer. In the case of Turner V. Wilson, 49

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