Crow v. State

• Decision Date: 01 January 1859
• Citation: 24 Tex. 12
• Parties: WILLIAM H. CROW v. THE STATE.
• Court: Texas Supreme Court

24 Tex. 12

WILLIAM H. CROW

v.THE STATE.

Supreme Court of Texas.

1859.

If a sheriff fail to return process issued to him by legal authority, he may be proceeded against and punished for a contempt, under articles 422 and 1853, O. & W. Dig. C. S.

It is not proper to call a jury to try a question of contempt, except where it is expressly provided for by law.

If the contempt be committed in view of the court, it may summarily punish the offender.

But if the party be only prima facie in contempt, as where a sheriff fails to return process, the proper practice is to enter a judgment nisi, for the amount of the fine, and to issue a scire facias, requiring him to show cause why it should not be made final; and he must answer thereto under oath.

The court is to decide whether the answer purge the contempt or not; it is not, however, restricted to the answer, but may receive other evidence, and may, in its discretion, remit the fine, in whole or in part, with or without costs, and from this judgment there is no appeal.

APPEAL from Upshur. Tried below before the Hon. Charles A. Frazer. The facts are stated in the opinion.

T. J. & J. H. Rogers, for the appellant.

BELL, J.

This was a proceeding against the appellant, as the sheriff of Cass county, for failing to return a capias issued from the district court of Upshur county, and placed in his hands. It appears that upon motion or suggestion of the district attorney, the court entered judgment nisi against the sheriff, and caused a writ of scire facias to issue to him, commanding him to appear at the next term, and show cause why the judgment should not be made final against him. The sheriff appeared, in obedience to the scire facias, and filed his answer, or statement, under oath, to the effect that he had written his return on the capias, and had enveloped the writ, directed the same to the clerk of the district court of Upshur county, and deposited the envelope, containing the writ, in the post-office, in time to have reached the clerk of the district court of Upshur, by due course of mail, before the return day of the writ. The presiding judge called a jury, and submitted to them the question, whether or not the sheriff had returned the writ. The jury were instructed that the sheriff's answer was not evidence before them; and they were told that if they found from the evidence, that the sheriff had not returned the writ, they would assess a fine of one hundred dollars against him. The clerk of the court testified that the envelope, containing the writ, came to his hands some time after the return day of the writ, and that the post-mark on the envelope bore date after the return day of the writ. The envelope, with the post-mark on it, was shown to the jury in evidence. The jury returned a verdict against the sheriff, assessed a fine against him of one hundred dollars, and the judgment of the court was, that the state of Texas recover that sum from the sheriff. There was a motion for a new trial, which was overruled, and the sheriff gave notice of appeal, and perfected the same by the execution of bond.

We are of opinion, that the proceedings of the court below are erroneous. A sheriff may be punished for failing to return any...