Bracken v. Cato, 6164.
| Citation | 54 F.2d 457 |
| Decision Date | 21 January 1932 |
| Docket Number | No. 6164.,6164. |
| Parties | BRACKEN et al. v. CATO et al. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Franklin D. Brown, of Lubbock, Tex., for appellants.
J. I. Kilpatrick, Roscoe Wilson, and Chas. C. Crenshaw, all of Lubbock, Tex., for appellees.
Before BRYAN, SIBLEY, and HUTCHESON, Circuit Judges.
E. L. Bracken was convicted in 1927 of the crime of assault with intent to commit murder. In October, 1928, after his conviction had been affirmed on appeal, and while he was being held in the county jail at Garza, Tex., awaiting removal to the state penitentiary in order that the sentence imposed upon him might be put into execution, he was shot and killed by a deputy sheriff named Ramsay who was acting as jailer. His widow and minor children brought this action for damages accruing to them from his death against the sheriff of Garza county and the surety on his official bond. The homicide occurred in the presence of two other prisoners, and also in the presence of three of Bracken's children, a son, aged 14, and two daughters, aged 12 and 8, respectively, who had been admitted to the jail by Ramsay for the purpose of allowing them to see their father and tell him good-bye before he was taken away to the penitentiary.
The two older children testified to the following effect: One of them handed to Ramsay a package containing some food and also a pocket comb for delivery to their father. Ramsay examined the package, and, after doing so, put it in a large cage outside the cells, but required the older girl to deliver the comb through the bars of the cell, stating that he was afraid of the prisoners, as they had assaulted him a few days before that. Ramsay was careful to keep the doors of the cells closed and locked while he and the children were in the outside cage, and not until he and they were in the corridor outside the cage did he open the doors of the cells, which was done by means of levers. After he and the children were in the outside corridor, and safe from any danger of attack, Bracken told Ramsay to go on away and shut his mouth, saying to him, "I would not harm a hair of your head if I was out and had a thousand guns, you damned old son of a _____." At the time of saying this Bracken was either washing a plate or reaching over to pick up the package, and was not making any attempt to attack or injure Ramsay. As Bracken made the statement, Ramsay turned and shot him; the bullet going between bars of the steel cage.
The plaintiffs called the sheriff as a witness, but merely proved by him that Ramsay had charge of the jail. On cross-examination the sheriff testified that Ramsay told him he killed Bracken in self-defense and to prevent an assault upon him. The sheriff's official bond was offered and received in evidence. It was in statutory form, conditioned, among other things, that he would faithfully perform the duties of his office. Ramsay died before the trial, and no evidence was introduced for the defense. The trial court directed a verdict for the sheriff and the surety on his bond on the ground that the deputy sheriff and jailer, Ramsay, was not engaged in the performance of any official duty at the time he shot and killed Bracken.
Under the laws of Texas, individuals, as well as associations of persons and corporations, are liable for the death of any person caused by the wrongful act of his agent or servant. Revised Civil Statutes of Texas 1925, art. 4671. The sheriff is the keeper of the jail of his county, and may appoint one of his deputies jailer. Article 5116. He is responsible for the official acts of his deputies. Article 6870. So far as the public is concerned, there is no difference between the official acts of the sheriff and those of his deputies. Heye & Co. v. Moody, 67 Tex. 615, 4 S. W. 242; Rogers v. The Marshal, 1 Wall. 644, 17 L. Ed. 714. See, also, note in 1 A. L. R. 222, 236. As it was the official duty of Ramsay as deputy sheriff and jailer to keep all prisoners safely, it follows necessarily that it was a breach of that official duty and an abuse of his authority to injure or kill a prisoner without justifiable cause or legal excuse. "The character of the act, whether official or not, does not depend upon its lawfulness, but upon the fact that the person who performs it is in fact an officer and purports to act in his official capacity and does act by virtue of authority conferred by law." King v. Brown, 100 Tex. 109, 94 S. W. 328, 330. See, also, Myers v. Colquitt (Tex. Civ. App.) 173 S. W. 993. According to the undisputed evidence, Ramsay killed Bracken without justification or excuse. His...
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